Shubh Sahai, Pankhuri Gupta, and Akshat Jha
Accounts from the COP-26 at Glasgow show a renewed international pressure on homogenous and universal net-zero targets. Given this political environment, it is necessary to reinvigorate the debate about Common But Differentiated Responsibility (CBDR). This essay attempts to provide a Rawlsian defence of CBDR—and subsequently, paint an ethical intergenerational framework for cooperation.
Climate change is unprecedented in terms of both, the risks it poses to the Anthropocene as well as the cooperation demanded to mitigate the challenge. The Paris Agreement and the 2030 Agenda for Sustainable Development also acknowledge that impacts of climate change are of ‘common concern to humankind’. But though they are of common concern, it does not follow that humankind has common—i.e., identical—resources to deal with climate change.
Common But Differentiated Responsibility (CBDR) seeks to determine the specific obligations of nation-states towards the preservation of the environment. This principle weighs the need for all states to assume responsibility for global environmental concerns like climate change; while—and at the same time—recognizing the varying stages of economic development that different countries find themselves in [see United Nations Framework Convention on Climate Change (UNFCC), Art. 3 Para 1]. The argument is intuitive—the greater a nation’s advantage, the greater is its environmental responsibility.
The responsibility laid down by CBDR must be discharged on two fronts [see Cullet (2021)]. First, on the common level, all stakeholders must recognize their absolute responsibility towards the environment. Nations irrespective of their economic condition must do what is possible and feasible in their absolute capacity to remedy global environmental challenges. Second, certain distinguished actors have definite, mandated goals to achieve in addition to their common responsibility towards the environment. Accordingly, developed nations would have specific goals like downsizing industry or reducing carbon footprint by a certain date irrespective of its economic impact whereas developing or underdeveloped nations would only be required to cut emissions if feasible for their economic development.
As a legal principle, CBDR was first explicitly invoked by UNFCC in 1992, and then, subsequently by the Kyoto Protocol in 1997. Its most mature form appears in the 2016 Paris Agreement [Article 4, Paragraph 2], where each signatory state was asked to devise their own Nationally Determined Contributions (NDCs), keeping in mind their specific socio-economic conditions. But given the emergent international pressure regarding universal net-zero pledges that was witnessed at COP-26, the idea of CBDR stands seemingly weakened in the current international hemisphere.
A renewed defence of CBDR is thus necessary. In this essay, we provide a Rawlsian defence of CBDR, and argue that CBDR may be conceptualized as a ‘just’ theory of climate responsibility. Because problems of climate change also concern future generations, we interrogate intergenerational concerns, and find that a Rawlsian interpretation of CBDR provides a compelling framework for cooperative-participation of current and future generations. Thus, we try providing a cooperative framework for both, contemporaries and non-contemporaries.
Climate Justice Among Contemporaries
In A Theory of Justice (1971) [‘ToJ’], John Rawls proposed two principles of Justice. Firstly, the Basic Liberty principle provides that each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties compatible with a similar system of liberty for all [ToJ, pp. 52-57]. The second principle qualifies the permissible inequalities. Namely, that social and economic inequalities must satisfy two conditions. First, inequalities are attached to positions and offices accessible to all under conditions of fair equality of opportunity [ToJ, pp. 73-78]. Second, such inequalities are to be used to the maximum benefit of the least-advantaged members of society—a requirement he termed ‘the difference principle’ [ToJ, pp. 65-73]. Though ToJ conceptualised these principles for the individual, we extend the project to include entities like the modern nation-state.
The Suitability of a Rawlsian Framework of Climate Change
There are at least two reasons why Rawlsian principles speak to a just international order. First, the free rational individual of Rawlsian-liberal theory is comparable to the sovereign nation-state. Neither of the two entities are altruistic, both possess the capacity to reason to better conceptions of fairness, and both entities should abide themselves with such reasoned conceptions of fairness [see The Law of Peoples (1999) (‘LoP’)]. Neither states nor individuals are just by themselves; but they would mobilise towards conceptions of fairness because of considerations of self-interest. If behind a ‘veil of ignorance’, the leaders of nation-states were asked to choose a scheme to distribute rights and obligations among nations, without knowledge of their own nation’s circumstances; they would choose a distributive system which prioritizes impoverished nations over those that are well-off—to minimise risks in case their own nation happened to be poor [see LoP, pp. 37-42].
Second, unequal conditions affect both individuals and nation-states in similar ways. The sovereign nation-state—like the liberal individual—is not self-sufficient and exists in a constant struggle to gain more enterprise and desert. In large parts, the considerations for the sovereign of a poor state are comparable to the macrocosms of a poor individual. Therefore, both circumstances may be governed by similar moral principles. Like individuals behind the veil of ignorance, poorer nation-states may have an expectation that wealthier states shall use their strength for the benefit of the weaker sovereign state. This is not to say that Rawlsian Theory applies indiscriminately to all circumstances between sovereign states. But notwithstanding, we argue that a Rawlsian interlocution of CBDR is still a worthwhile exercise.
The specific moral issues about climate change turn upon the distribution, among nation-states, of duties to restrict carbon emissions. All climate change mitigation strategies must determine the specific and individual duties of nation-states to curtail emissions. Since distribution of rights and obligation are of concern, the Rawlsian lessons in distributive justice do seem relevant. Additionally, International Law is predisposed towards a fiction of equality among states. But regarding climate change, because nation-states have anachronistic material conditions, formally ‘equal’ climate-change mitigation strategies impose differential burdens on individual nation-states—based on subjective states of economic development [see Cullet (2021)]. Of course, CBDR provides an alternative framework, but differential obligations are also inherent to it. In so far as differential environmental burdens are seemingly inevitable, the manner of distributing the differential environmental burdens becomes a key concern. And John Rawls provides a compelling moral framework of distributing ‘difference’.
Rawlsian Implications for CBDR
When read in relation to CBDR, the Rawlsian principles of Justice yield three implications. First, CBDR only allocates differentiated responsibility to nations that can secure basic liberties like rights, income security, wealth, and opportunities. Accordingly, several nations in continents like Africa and Latin America are exempt from differentiated responsibility as they still struggle with basic utilities—and cannot guarantee dignified sustenance of current populations [see World Inequality Report 2022]. The underdeveloped world should not be expected to deprive its populations of basic economic goods, so that stricter environmental regulations could be enforced. This is particularly true when contrasted with the policy trajectory of the developed nation-states, where strict climate regimes were only formulated after economic efficiency had been achieved for its populations. The responsibility of the future lies on everyone; but until all nation-states have developed in comparable forms, the underdeveloped nation-states should not be burdened to fulfil climate change mitigation obligations.
As a Rawlsian would remark, the choice by nation-states of preferring basic liberties over environmental responsibilities is morally legitimate. Ambitious environmental goals may only weaken the state of the under-developed nation-states, and hence, delay their arrival to a sustainable effort against climate change [see Piketty (2017)]. The authors acknowledge that what qualifies as basic goods for a nation-state invites contest. Nevertheless, we believe that as a moral principle, prioritisation of basic liberties over environmental obligations suits a just international order; even though the exercise itself may not yield conclusive results. In part, this idea was reflected in the Kyoto Protocol, where only 38 industrialised countries and economies in transition (and the EU) were mandatorily required to reduce carbon emissions [see Annex B of Kyoto Protocol]. Our argument is similar but less exclusive: (only) the most under-developed countries, which struggle to provide their citizens with necessary amenities, should be exempt from climate change responsibilities.
Second, the current inequalities on the international stage were not attached to offices accessible under conditions of equality of opportunity. The developed world hosted rampant economic development at the cost of colonial depredation and unrestricted environmental abuse. Thus, the present inequalities of wealth between different world regions did not arise out of merit sustained under equality of opportunity—but by domination [see Tharoor (2017); Neal and Williamson (2014)]. Some actors had more time to create economic wealth, while others lacked a fair opportunity. However, with the decolonization movement and the rise in the developing world’s political standing, several nations have exercised newfound autonomy. This yields that such nations like India, Japan, and China, would certainly have some differential responsibility but not comparable to that of the developed world. The assumption here is both optimistic and normative: nation-states, when given conditions of comparable resources and free competition, would produce an equivalent desert, and thus, have comparable responsibilities to the environment. At any rate, the point remains that any calculus which attempts determination of environmental responsibilities, must necessarily account for the differential opportunities individual nation-states have had at producing economic wealth. Moreover, such a calculus should also account for subsequent events—like decolonisation—which may impress upon the opportunities available to a nation-state.
The third implication is of particular interest. Rawls’ difference principle articulated that existing inequalities must be used to the benefit of the least advantaged [ToJ, pp. 57-72]. Purposively, this means that the developed world’s responsibility goes beyond transforming themselves in an environmentally conscious manner. The difference principle puts on them an obligation to use the prevalent inequalities to the advantage of the less developed world. This sharing of advantages could include transferring of green technology, removal of restrictive intellectual property regimes, and relaxation of tariff barriers. The primary interlocution being that if persons are put behind the veil of ignorance—unaware of which country they belong to—then, by the Rawlsian account, all of them would support inequalities between countries being used to the advantage of the worse off [ToJ, pp. 130-138]. If such proactive steps are not taken, Rawls would conclude that the inequalities are illegitimate, and less developed nations have an ethical justification in refusing any differentiated responsibility under CBDR.
Such state of illegitimacy is intuitive: if developed nations do not share their desert with the underdeveloped world, the latter has the right to secure such sustenance for its populations. The Difference Principle provides—for two reasons—that the developed world has a responsibility to share desert with the underdeveloped world. First, that the developed world achieved desert by excluding the underdeveloped world (through processes like colonization). Second, that the creation of desert by the developed world involved degradation of the environment—the latter being a common resource. As the desert was achieved by abuse of a common resource; it is—in part—a (common) desert of all nation states. Consequently, an obligation to save the common resource must be accompanied with an obligation to share the desert.
On the policy front, a Rawlsian conception provides a sustainable framework for combating climate change. For instance, carbon reduction targets should recognize the unequal access nations have towards carbon-centric development, and thus elongated time periods must be provided to developing and under-developed nations to achieve ‘net zero’ targets. Similarly, promises of developed nations to contribute $100 bn a year, by 2020, to provide resources to underdeveloped nations to fight climate change, have been dishonoured as the developed world second-guesses its differential responsibilities. Climate change can only be combated if all nations can be sustained in the effort — which is only possible under conditions of fairness that the developed world has a larger burden to create.
The Problem Among Generations
There at least two inter-temporal aspects to Carbon emissions. First, only a certain amount of carbon can be emitted—across time—without calamitous consequences. Second, any carbon emitted by present societies will linger in the Ecosphere for a long time. There thus exists an intergenerational carbon-budget [see the IPCC: 2021 Annual Report]. Emitting additional carbon exhausts this budget; and once exhausted, this budget remains depleted for the foreseeable future. The carbon budget is thus intertemporally constrained.
It follows that the carbon budget is a common resource of all generations—and the rights to emit carbon need to be distributed across generations. It is immoral and unfair if a single generation disproportionately appropriates the carbon budget. More so because continuous greenhouse gas emissions by present generations lead to global warming, climate change, and exacerbated abatement and mitigation costs for future generations.
The Non-Identity Problem
Consequently, each generation has a moral obligation to not exhaust more than their share of the carbon budget. This calls for some scheme of intergenerational rights and obligations vis-à-vis the carbon budget—i.e., an account of an inter-temporal distributive justice. However, what scheme of intergenerational justice?
Harm principle-based arguments make intuitive sense. As Brian Barry argues, current generations, particularly those in positions of power, have a moral duty to abstain from actions that have a high probability of inflicting substantial harm on basic interests of future generations. Accordingly, non-renewable natural resources should be managed in such a way that future generations are not left worse off—than if there had been no depletion [see also Page (1999); and Baxi (2019)].
But generations are not contemporaries. The dynamics of power between generations are heavily skewed in favour of those generations that come prior in time. For example, present generations may adversely affect the life outcomes of future generations by not following climate change mitigation strategies. Future generations do not have a comparably powerful reciprocal tool. But perhaps even more pertinently, as Parfit seminally noted, the relationships between generations present ‘non-identity’ problems [Reasons and Persons (1986) (‘R&P’)].
Parfit noted that all humans arise from a fateful interaction between a (specific) ovum and spermatozoa. [R&P, pp. 357-361]. If this fateful interaction were even a minute late, a different child would be conceived. That is, for a person named Donald, even if the parents of Donald were the same, a genetically identical Donald, could not be born—at some other time—because such an event would be probabilistically absurd. Parfit thus reasoned that when present generations follow alternate social and economic policies, they effect the surrounding circumstances of the future generation—and thus, give rise to different future generations. [R&P, pp. 351-380]. Therefore, for each change in a socio-economic policy, a materially different future generation arises.
Assume two Scenarios: in Scenario A, climate change mitigation policies are followed by the present generations; while in Scenario B, no mitigation policies are followed. As per the non-identity problem, entirely different future generations are born when present generations follow Scenario B instead of Scenario A. Therefore, the specific future generations that arise in Scenario B cannot have a logical claim to Scenario A—as the former would not have come into existence if Situation A were followed. Accordingly, no future generations can ever be harmed—even by egregiously negligent actions of previous generations [R&P, pp. 371-376].
The non-identity problem presents foundational difficulties for all person-affecting views of justice—including those that adopt a rights-based approach [R&P, pp. 364-370; see Roberts (2021)]. Though Utilitarian conceptions of justice are not subject to the extremities of the non-identity problem; but instead, it presents problems of another kind. Because an unlimited number of people presumably exist in the future; consequently, the welfare of the greatest number demands that the interests of the present generations be made entirely hostage to the interests of future people. To ask present generations to sacrifice everything is again unfair.
Just Savings and Rawlsian Independence from Identities
Rawls, on the other hand, employs a weak person-affecting view that does not rely on the identity of people to navigate claims of justice. The social contract entered while in the original position—a situation of absolute equality—lays down a categorical imperative, a distributive framework that ought to be generally followed [ToJ, pp. 10-15]. Every person should act in the same manner as they would want others to treat them [ToJ, pp. 109-118]. Rawls thus does not rely on the existence of others to determine the immorality of an act—it is sufficient if the act would not be agreeable in the original position [ToJ, pp. 118-123]. Because Rawlsian conceptions of justice do not require identities of future generations to be known, it side-steps the non-identity problem.
The ‘Just Savings’ principle of Rawls requires current generations to save sufficiently for the generations that shall exist in the future [ToJ, pp. 251-253]. Accordingly, present generations are obliged to guarantee a ‘sufficientarian’ standard—or a minimum just standard—of living to future generations [ToJ, pp. 253-259]. What liberties and opportunities are ‘sufficient’ for future people may be subject to varied contestations, but surely it is not contentious that a liveable earth is a minimum standard that should be justly expected by future people.
The complete articulation of this principle provides that the current generations need to leave their successors with at least the equivalent of what the previous generations left for them [ToJ, pp. 256-257]. An interesting experiment here is to put different generations behind the veil of ignorance. Actors behind the veil know that they will be a part of a specific generation, but which specific generation that may be is unknown to them. But for this uncertainty, the people behind the veil of ignorance would determine a just savings rate that a generation must comply with [ToJ, pp. 256-259].
Rawls acknowledges the power that previous generations hold over the current generations. The choices of previous generations may benefit or harm the current generation, but the present generation, nevertheless, is powerless with respect to those who lived previously. Behind the veil of ignorance, no generation cannot know if the previous generations have saved enough resources for them. Qualitatively then, such a savings rate shall be accepted that every generation would agree to follow—and a savings rate which they would have wanted all previous generations to have followed.
‘Just Savings’ and CBDR are two faces of the same coin. They both draw from a Kantian Categorical Imperative which requires people to act unto others the way people want others to act unto them. If others acted unto us in a mala fide manner: if past generations did not sufficiently preserve the common resource, or if the developed world hoarded the world’s wealth through processes of colonialism; then, the present generations, or the underdeveloped world, should not be expected to sacrifice their basic sustenance—even for preservation of a common good (like the environment). Therefore, although CBDR and Just Savings are tools for inspiring good and moral acts; but they may also be used as tools for indulgence in less moral acts—provided other actors conducted themselves in a similarly deprecating manner.
These lesser moral acts may be summarised: states which struggle to provide basic liberties to their populations must not struggle under an additional responsibility to protect climate change. Such responsibility should be increasingly vested with the recently decolonised and economically resurgent states. However, in all circumstances, the maximum responsibility to share the whole desert rests with developed nations. As we observed, this Rawlsian framework of CBDR is the only scheme of justice that is inter-temporally sustainable.
Shubh Sahai, Pankhuri Gupta, and Akshat Jha are current undergraduate students at the Jindal Global Law School (JGLS), O.P. Jindal Global University, Sonipat.