Drishtikon: Common But Differentiated Responsibility to Combat Climate Change: A Jurisprudential Perspective

The Sangyan
12 min readDec 31, 2021

Introduction

At the very conceptual level, the principle of ‘Common But Differentiated Responsibility’ (CBDR) evolved from the notion of the ‘common heritage of mankind’. The principle recognizes historical differences in the contributions of developed and developing States to global environmental problems, and differences in their respective economic and technical capacity to tackle these problems. Despite their common responsibilities, important differences exist between the stated responsibilities of developed and developing countries.

As a matter of principle of sovereign equality, there should be no difference in the rules governing the responsibility of developed and developing States that contribute to climate change. Thus, the principle of CBDR creates a substantively equal obligation towards both the developed and developing nations with certain exceptions in the modalities (timeframe) and availability of technical and financial assistance. There lies a problem of Communitarianism versus Cosmopolitanism as in respect to whether the sovereign’s duty is to maximize the interests of his own people or that of humankind as a whole? The author would discuss whether it should be ‘America First’ or World, ‘Make America Great Again’ or Make World Green Again? The author argues in this paper that both the developed and developing countries owe an equal but differential obligation towards the ‘Global Citizens’.

The scope of this study would be limited to the extent of the 2015 Paris Agreement. The specific problem that this research endeavor aims to explore is whether the principle of CBDR is justified in respect to the principle of global environmental justice and environmental equality when the damaging effects of global warming will be quite unevenly distributed across societies? And whether the principle of CBDR promotes fairness and substantive equality which cannot be achieved through reliance on sovereign equality in a world where states are unequal in many respects?

Jurisprudential Perspective

Michael Sandel famously remarked that “Justice is not only about the right way to distribute things. It is also about the right way to value things[1] and one thing that we as a whole have failed to value is the environment. In today’s globalized world village, Climate Change calls for the Global Justice Action but there can’t be any single idea of justice that can be adopted globally for a world where all the countries are differently placed. The very idea of justice in a global context could merely be thought of in the light of international institutions like the United Nation and UNFCCC and their democratic functioning which extends beyond borders. The concept of Global Environmental Justice is intrinsically linked with the idea of modern constitutional democracy.[2]

Simon Caney[3], Henry Shue[4], Thomas Pogge[5], and Peter Singer[6] are some prominent scholars whose writings have immensely contributed to the development of the theory of global environmental justice. So, in this research endeavor, the author would primarily deal with the particular writings of Peter Singer’s “One Atmosphere”, Simon Caney’s “Cosmopolitan Justice, Responsibility, and Global Climate Change”, and Henry Shue’s “Climate Justice” and the theories of other scholars discussed therein. The author is very much tempted in dealing with the theories of other equally important scholars as well but because of the certain inherent limitations to the study makes it only plausible for the author to present the arguments of certain thinkers.

John Rawls in “A Theory of Justice” argued that the realm of justice must be limited only to the arena of national or domestic political society.[7] The idea of “international or global justice” assumed the space created against this well-established notion of John Rawls. In an akin globalized world order, our daily lives, at the very basic level, are intrinsically interconnected with the people whom we neither know nor have ever met. The sui generis character of the environmental crisis is that it has a global impact, irrespective of our Nationality, Religion, Race, Caste, et al and thus, constitutes the primary theme of this global interconnectedness. That’s the reason why the idea of global justice has become very important in the contemporary international law regime.

The jurisprudential framework must incorporate the distributive justice of environmental benefits and burdens. John Rawls’ conception of ‘justice as fairness’ can be extended to deal with the issues related to international domain, duties to the environment, inter-generational rights, et al[8] as the environment needs to be valued for its impact on Rawlsian idea of ‘primary goods’, such as income, wealth, liberties, opportunities, and the social bases of self-respect.[9] Even Amartya Sen’s Capability approach would include the distribution of environmental benefits and burdens as it facilitates a person’s ability to achieve certain ‘functionings’ (state’s ability here).[10]

Rawls argues that the ‘difference principle’ guides the distribution of resources (here environmental responsibility) within one generation but it’s the ‘just savings’ principle that should be adopted for intergenerational distribution of environmental benefits and burdens.[11] The Rawlsian conception of ‘Cosmopolitan Political Morality’ concludes that self-governing liberal peoples must owe environmental responsibility for their past policies as justice requires the developed countries to assist the developing ones.[12] However, one may argue that the present generation must not be held liable for the reason that the present generation might have disapproved of the earlier generations' policies.

Thomas Pogge’s contribution to this whole debate is incredible in the sense that he argues that transnational social structures which govern the emission reductions obligations of the countries in an interconnected world, have consistently worked in the favour of developed countries, like the United States and the European Union, and have worked against the developing and underdeveloped economies. Pogge comes up with the idea of “Moral Cosmopolitanism,” where he argues that “every human being has a global stature as an ultimate unit of moral concern” and those who are committed to the cause of global justice must alter such transgression in the world order, viz. evaluation of unjust global arrangement and recognition of one’s obligation towards those who suffer the consequences of this extremely inequitable world order. Pogge argues that supra-international institutions like WTO and IMF must share the climate change burden as promoting economic growth which resulted in carbon emissions have contributed to global climate change.[13]

Henry Shue draws on the “Polluters Pay” principle for the distribution of environmental burdens and casts moral responsibility on the developed states for bearing the burdens of climate change. Shue strongly argues that the members of developed and industrialized economies have caused global warming and thus they owe the burdens of climate change, and not the developing or least developed countries.[14] Shue, however, differentiates his argument from the ‘polluter pays’ principle as he reads it to be a ‘forward-looking’ principle that lays down that future pollution ought to be paid for by the polluter.[15]

Eric Neumayer also argued for the distribution of climate change burden to be shared by the developed countries as the costs need to be calculated according to ‘historical accountability’.[16] For both the proponents of the egalitarian approach of justice, Shue and Neumayer, the relevant actor for sharing climate responsibility are “States”. Shue further argues that the present generation is not ‘completely unconnected’ to the past generation that contributed to climate change as they enjoy the benefits of the earlier generation policies (Beneficiary Pays Principle).[17]

In Shue’s theory of global justice, the industrialized developed economies of the first world should bear the environmental responsibility, despite the fact that they were not conscious of the impacts of what they were doing i.e. emission of greenhouse gases because that’s not unfair to make them bear the burden as, after all, they caused the problem at first place,[18] because the very purpose of the allocating burden on the developed nations is to restore an equality that was disrupted unilaterally and arbitrarily viz. Industrialization, globalization, colonialization, imperialism, et al.

However, while distributing the burden, the perspective of rights-bearers and that of duty-bearers must be given due consideration.[19]

Some may argue that the developed countries cannot be made to bear the extra burden for climate change as they were unaware of the effects of the activities like industrialization that they were carrying on the environment and thus, it amounts to unfair for being retrospective justice. In this regard, Peter Singer argues that the objection of “Excusable Ignorance” should be inapplicable since the knowledge of ‘Global Warming’ i.e. post-1980–90.[20]

Peter Singer and Simon Caney, who believes in the conception of “cosmopolitan imagination of human society”, argues that we have certain moral obligation and responsibility towards those who are worse-off. In the respect of global environmental justice, this implies that the developed countries must accommodate both the development needs of poverty eradication of the developing countries vis-à-vis the environmental concerns.[21]

Peter Singer discusses Robert Nozick’s “historical” and “time-slice” principle in reference to the distribution of environmental burdens and benefits where the time-slice principle considers the existing distribution at an isolated moment and questions whether that distribution satisfies certain principles of fairness or not?, per contra, the Historical Principle requires to consider the history of the distribution and how we came to it in the first place. For Singer, every country denies their responsibility by claiming that they are emitting “enough and as good” for others which results in “tragedy of the commons.” Singer proposes ‘Emission Trading’ and ‘Geoengineering’ as a plausible solution to the problem of climate change. Singer discusses four principles of fairness for the distribution of environmental responsibility, namely, the Polluter Pays Principle, An Equal Share for Everyone, Aiding the Worst-Off, and the Greatest Happiness Principle. Thus by saying, “Forget about the past, let’s start anew,” Singer argues that the principle of equal per capita future entitlements to a share of the environmental burden is more just and fair. Singer also points that the developed countries should not shy away from taking strong action like setting emission targets, by blaming the reluctance of the developing countries as an excuse for nothing doing themselves.[22]

Simon Caney has dealt with the issue in two respect: methodological and substantive, where the methodological observation deals with what sort of methodological approach needs to be adopted, namely the individualist or a collectivist one which can be dealt with in three different contexts: firstly, Who is the Polluter? — in this respect, the individualistic approach cannot be adopted because of the practical impossibility for the reason that the polluter who has contributed to the pollution is already dead, per contra, the collectivist approach answers the question when it holds the current generation liable for the past generation; secondly, Who has been benefitted? — Because of the non-identity problem, particular individuals cannot be made liable while the collectives can be; thirdly, who is the bearer of the right to emit CFCs? — While quoting Shue, Caney answers this question as “collective” and argues that you cannot burden an individual sacrifice for the sake of their country which decided to pollute the environment for their industrialization and development.

Caney argues that we need to have a global principle for the distribution of environmental burdens and benefits[23] Caney’s cosmopolitan approach has been supported by Pogge as well.[24] Caney argues for a Hybrid account of sharing environmental responsibility which as per Caney, is similar to the CBDR principle as both insist on collective responsibility. Moreover, both the Hybrid and the CBRD accounts are subject to the party’s duties depending upon firstly, what they have already done and secondly, what they are capable to do? Caney’s Hybrid account maintains that those States which has exceeded their quotas of emission of greenhouse gases must make up for that while the States which are able to do more must bear more heavy duties. But the Hybrid account doesn’t restrict itself from casting the moral responsibilities merely on the States but also on the other national and international bodies and individuals.[25] Caney argues that the present generation cannot be made accountable for the environmental degradation caused by the earlier degradation of such historical responsibility would be unfair to the current generation. Caney’s Hybrid model also accounts for an exception of Excusable Ignorance. For Caney, the burdens of Global Climate Change can be dealt with either by Mitigation (where the costs to actors for not engaging in environmentally degrading activities that contributed to global climate change) or Adaptation (where the costs to persons of adopting measures that enable them and/or to negotiate with the climate change). Caney proposes a balanced approach to the two models.

Realm of International Climate Change Politics

Developed countries, especially the USA under former President Trump, argue for equal restrictions on greenhouse gas emissions for both the developed and developing countries, and terms any relaxation to the developing countries like China and India in terms of differential treatment to be unfair and unjust. They argue that the very basis of the CBDR principle lies on the ground of the Principle of Sovereign Equality, meaning every state enjoys equal rights and responsibilities in respect of international climate change legal and political regimes.[26]

Per contra, developing countries like China and India, claim that they have the right to proceed with industrialization and economic development like the developed nations, even if that causes any environmental degradation. Developing Nations argue over three different points, firstly the developed countries must take responsibility under the principle of “You broke it, you fix it”. Secondly, even if we reject this retrospective application of obligation, then also the emission of CFCs, at present, is much more from the developed nations like the USA, meaning they must share the proportionate burden of such emissions and environmental degradation. And thirdly, developed nations are better capable, in comparison to the developing nations, to negotiate with the environmental crisis without seriously damaging their populations’ welfare.[27]

To sum up, both the developed and developing countries must observe a symbiotic relationship between the development and environment and not a cruel dilemma or a zero-sum game where they need to choose either of them.[28] The principle of sustainable development needs to kept in hindsight while deciding our policies as there is huge plausibility of the country opting for their dominant strategy of ‘made development’ which will ultimately result in a classic scenario of prisoner’s Dilemma where in order to become global hegemony (in the economic and political sense), they end up damaging the environment at an irreparable level.

Concluding Remarks

The author argues that there is a requirement of further segregation between the developing, underdeveloped, least developed, and the Island Nations threatened by the Climate Change as the meaning of global justice varies for every other country of the world. For the developed countries, justice might mean the further strengthening of their economic and political power; for the developing countries like China and India, justice may mean their rapid industrialization and development in order to become a developed nation in the new world order where they are equal partners to the western developed counterparts; for the least or underdeveloped countries of Northern Africa, justice may mean all about fighting poverty and securing basic necessities; and lastly for the Islands Nations under threat by rising sea level like Mauritius, justice simply their existential crisis. Thus, the principle of ‘Common But Differentiated Responsibilities’ with certain modifications [common but differentiated responsibilities and respective capabilities] is the way forward.

The author further argues that there needs to draw a balance between economic justice and environmental justice as the development stories of every country are sui generis, ergo, no one ‘historical’ approach of distribution of environmental responsibility can be adopted. Also, it must be considered that environmental justice is the end and not the mean as our very survival depends upon it. The concluding remark of the author is that the aftermath of the developed counties industrialization process has already resulted in the threat of climate change that we are facing today, ergo, it’s imperative from here that the whole global village takes a unanimous decision of sharing environmental responsibility based on the capabilities because if we fail to realize the today’s reality and continue fighting over the distribution of burdens then we are doing injustice to the Mother Earth and our future generations by threatening their survival which would impact across the globe, including the developed world.

[1] Michael Sandel, ‘Justice: What’s the Right Thing to do?’, 261 (2010).

[2] Abhishek Kumar, ‘Economic Development and Environmental Justice: Cruel Conundrum or Symbiotic Relationship? (We Can Have Plan B, but No Planet B!)’, Journal of International Wildlife Law & Policy, 21:1, 11–22 (2018). Available at: <https://www.tandfonline.com/doi/abs/10.1080/13880292.2018.1439693>.

[3] Simon Caney, ‘Cosmopolitan Justice, Responsibility, and Global Climate Change’, Leiden Journal of International Law 18, 747–775 (2005).

[4] Henry Shue, ‘Climate Justice: Vulnerability and Protection’, Oxford: Oxford University Press. 2014.

[5] Thomas Pogge, ‘An Egalitarian Law of Peoples’, Philosophy & Public Affairs 23, 195–224 (1994). Available at: <http://www.jstor.org/stable/2265183>.

[6] Peter Singer, ‘One World: The Ethics of Globalization’. New Haven: Yale University Press, 2002.

[7] Leif Wenar, ‘John Rawls’, The Stanford Encyclopedia of Philosophy (Spring 2017 Edition), Edward N. Zalta (ed.), Available at: https://plato.stanford.edu/archives/spr2017/entries/rawls/> Accessed on: 22 April 2018.

[8] John Rawls, ‘The Law of Peoples: With “The Idea of Public Reason Revisited”’, Harvard University Press, 2001; See also John Rawls, ‘Political Liberalism’, Columbia University Press, 20–1 (1993).

[9] John Rawls, ‘A Theory of Justice’, Harvard University Press, 54–5 (1999) and ‘Justice as Fairness: A Restatement’, ed. E. Kelly, Belknap Press: An Imprint of Harvard University Press, 168–71 (2001),

[10] Amartya Sen, ‘Capability and Well-being’, in M. Nussbaum and A. Sen (eds.), ‘The Quality of Life’, Clarendon Press, 30–53 (1993).

[11] Supra note 9.

[12] John Rawls, ‘The Law of Peoples with “The Idea of Public Reason Revisited”’, Harvard University Press, 17–18 (1999).

[13] Thom Brooks (Editor), ‘The Global Justice Reader’, Wiley-Blackwell (2008).

[14] Henry Shue, ‘Global Environment and International Inequality’, International Affairs 75, 533–7 (1999).

[15] Ibid. at 534.

[16] Eric Neumayer, ‘In Defence of Historical Accountability for Greenhouse Gas Emissions’, Ecological Economics 33, 185–92 (2000).

[17] Henry Shue, ‘Global Environment and International Inequality’, (1999) 75 International Affairs, 536.

[18] Ibid. See also, Anil Agarwal, Sunita Narain, and Anju Sharma, ‘The Global Commons and Environmental Justice — Climate Change’, in Environmental Justice: International Discourses in Political Economy — Energy and Environmental Policy, 173 (2002).

[19] Henry Shue, ‘Basic Rights: Subsistence, Affluence, and U. S. Foreign Policy’, 164–6 (1996).

[20] Peter Singer, ‘One World: The Ethics of Globalization’, Yale University Press, 34 (2002).

[21] Ibid. at 76.

[22] Ibid. at 122.

[23] Simon Caney, ‘Justice Beyond Borders: A Global Political Theory’, Oxford University Press (2005).

[24] Thomas Pogge, ‘Recognized and Violated by International Law: The Human Rights of the Global Poor’, Leiden Journal of International Law 18 (4), 717–745 (2005).

[25] Simon Caney, ‘Cosmopolitan Justice, Responsibility, and Global Climate Change’, Leiden Journal of International Law 18, 747–775 (2005).

[26] Singer, Peter. “A fair deal on climate change.” Project Syndicate, 2007. Available at: Available at: <https://www.project-syndicate.org/commentary/a-fair-deal-on-climate-change?barrier=true>. Accessed on: 22 April 2018.

[27] Ibid.

[28] Supra note 2.

Abhishek Kumar, B.A., LL.B., National Law University, Delhi [2015–2020]
The author can be reached at: abhishek.kumar15@nludelhi.ac.in

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The Sangyan

Law. Environment. Disability | Curator ~ Adv. Abhishek Kumar | Working on the 'Impact of Climate Change on Persons with Disabilities' | thesangyan.in | 🇮🇳 |