Ethical Values and the Integrity of the Climate Change Regime

Hugh Breakey, Vesselin Popovski

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317141426
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This book investigates the ethical values that inform the global carbon integrity system, and reflects on alternative norms that could or should do so. The global carbon integrity system comprises the emerging international architecture being built to respond to the climate change. This architecture can be understood as an 'integrity system'- an inter-related set of institutions, governance arrangements, regulations and practices that work to ensure the system performs its role faithfully and effectively. This volume investigates the ways ethical values impact on where and how the integrity system works, where it fails, and how it can be improved. With a wide array of perspectives across many disciplines, including ethicists, philosophers, lawyers, governance experts and political theorists, the chapters seek to explore the positive values driving the global climate change processes, to offer an understanding of the motivations justifying the creation of the regime and the way that social norms impact upon the operation of the integrity system. The collection focuses on the nexus between ideal ethics and real-world implementation through institutions and laws. The book will be of interest to policy makers, climate change experts, carbon taxation regulators, academics, legal practitioners and researchers.

PART I
Injecting Ethics into Governance Arrangements

Chapter 3
Mapping the Integrity of Differential Obligations within the United Nations Framework Convention on Climate Change

Rowena Maguire

Introduction

This chapter unpacks public institutional integrity concepts through an examination of differential obligations within the global climate regime. Getting global consensus on the how the principle of Common But Differentiated Responsibility (CBDR) should apply within the 2020 Climate Regime is one of the most contentious issues within the negotiations. CBDR is one of core founding ethical principles of the global climate regime and generates much debate, as it is the principle used to determine the legally binding obligations of parties to the United Nations Framework Convention on Climate Change (UNFCCC). As such, and in the terminology of Chapter 2’s Comprehensive Integrity Framework, the integrity of the UNFCCC can be assessed by: identifying the Public Institutional Justification (PIJ) of the regime; considering whether there is coherence of values in the interpretation of the principle and the PIJ and by examining the coherence-integrity of the regime by exploring the processes that have been involved in reconsidering the principle for the 2020 Climate Instrument. While CBDR shapes both mitigation and adaptation commitments, this chapter will focus on the interpretation of the principle in respect of legally binding mitigation obligations as this is where the principle has been most fiercely debated.

The contention over differential treatment within the UNFCCC surrounds the perceived comparative advantage that developing countries obtain by not holding legally binding emission reduction commitments. The inequitable benefit received by developing nations in this lens, is an economic benefit as it is currently more cost efficient to use non-renewable or high-emission technologies as oppose to renewable or low-emission technologies. Attaptu suggests that differential treatment has become the price to be paid in order to ensure universal participation in environmental agreements concerned with global problems.¹ Moreover most global environmental destruction has been linked with the western world’s development and the processes of colonization and industrialization. As such, it is recognized that developed nations, many of whom are western nations, are the ones historically responsible for global environmental degradation. Developing nations have generally sought to preserve their right to development within all international environmental negotiations and will refuse to participate in environmental treaties when they feel that the instrument is one sided. Developing countries perceive themselves to be asked to manage their resources for the benefit of western interests. A statement from the Prime Minister of Malaysia at the Earth Summit negotiations states the position of eloquently:

The poor are not asking for charity. When the rich chopped down their own forests, built their own poison-belching factories and scoured the world for cheap resources, the poor said nothing. Indeed they paid for the development of the rich. Now the rich regulate the development of the poor countries. And yet any suggestion that the rich compensate the poor adequately is regarded as outrageous. As colonies we were exploited. Now as independent nations are we to be equally exploited.²

As such the principle of CBDR has been used to ensure that marginalized groups were given special recognition of their development status and priorities in international environmental agreements. All of the international instruments adopted at the Earth Summit in 1992 acknowledged the historical responsibility of the developed world and the development priorities of the developing world. The UNFCCC specifically recognized the principle within the text of the agreement and the Kyoto Protocol adopted under the Convention applied the principle of CBDR to form two categories of membership: one with legally binding mitigation obligations (developed/industrialized nations) and one without legally binding mitigation obligations (developing nations).

However, some developed nations felt that this interpretation of CBDR went too far and gave an inequitable advantage particularly to large developing nations. This lack of coherence-integrity over the definition of CBDR has stymied the UNFCCC processes as two camps of developed nations positions appeared: one camp led by the European Union (EU) who was willing to abide with stringent liability for developed nations and a camp led by the United States (US) who were not willing to accept legally binding obligations for developed nations only. This stalemate has significantly slowed the global community’s desire to deal with climate change and this tension has bubbled under the surface at each annual Conference of Parties (COP) negotiations.

In addition to this tension surrounding the interpretation of CBDR within the regime, significant global economic changes have taken place since the adoption of the Convention in 1992, producing challenging context-integrity circumstances. First, the Global Financial Crisis directed attention away from perceived costly climate change measures and many of the climate market mechanisms in trial within the EU were negatively affected by this, in addition to facing some structural issues concerning pricing and allocation of carbon credits. These shortcomings strengthened the position of the states critical of the Kyoto Protocol and the arguments of many non-state actors who had been critical of market mechanisms. Second, there has been a significant shift in the world’s leading economies. Within the UNFCCC negotiations, these nations are referred to as the BASIC Nations (Brazil, South Africa, India and China). In 2007 BASIC countries accounted for nearly 60 per cent of total annual emissions from non-Annex I countries and around 29 per cent of total global emissions.³ The top three emitters are China, the United States and India and rather perversely the Kyoto Protocol does not apply to any of these nations. As such there is an urgent need to include nations such as BASIC and other outsider Kyoto nations such as the US within a legally binding framework to address climate change. The challenge for the 2020 Climate Instrument will lie in getting the balance right between recognizing historical contributions to global greenhouse gas (GHG) emissions while also finding a way to include all major emitters including nations such as BASIC to adopt legally binding mitigation commitments. The interpretation of CBDR under the 2020 Climate Instrument is thus integral to achieving this balance.

Public Institutional Justification of the Global Climate Regime

The global climate regime can be considered to have full integrity if its activities, values, ethics, internal organization and external relations accord with its PIJ. In order for an institution such as the UNFCCC to have full integrity it must act in accordance with publicly asserted values (consistency-integrity), as well as integrating its internal operations so that operations work towards promoting its PIJ (coherence-integrity).⁴ The PIJ of the global climate regime is to is found in Article 2 of the Convention, which requires the

stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.⁵

Article 2 applies not only to the Convention, but also to any related legal instrument that the COP adopts (such as the 2020 Climate Instrument). The PIJ is framed as environmental quality standard,⁶ and as such it does not prohibit the emission of GHGs; but rather seeks to restrict emission activities when they exceed a certain threshold (that of dangerous anthropogenic interference). The PIJ requires change to take place, so as to not affect: ecosystem adaptation, food security and economic development occurring in a sustainable manner.

During the drafting of the Convention, some parties such as: European Countries, Canada, Australia and New Zealand wanted a PIJ which included specific targets and timetables, with the initial goal of stabilizing carbon dioxide at current levels.⁷ The US, Japan and the former Soviet Union did not want a specific target or timetable arguing that such mechanisms would be too rigid given the lack of scientific certainty regarding climate change. Developing country positions were also divided over this issue with the Alliance of Small Island States (AOSIS) pushing for targets and timetables, while other larger developing countries in the process of industrialization such as Brazil, China and India questioned the science of climate change arguing that measures must not impinge upon their sovereign rights to development.⁸ Such varying perspectives led to adoption of the current PIJ wording which, while stopping short of setting rigid targets and timelines, attempts to impose an environmental quality standard as a target.

It took some time for global consensus to form over what could be considered ‘dangerous anthropogenic interference’. The Fourth Assessment Report (AR4) of the Intergovernmental Panel on Climate Change (IPCC) notes that the definition of ‘dangerous anthropogenic interference’ is a complex task that can only be partially informed by science as it also involves considerations of economic, ethical and legal judgements.⁹ The AR4 stated that determining the choice of a stabilization level implies a process that balances the risk of climate change against the risk that response measures will have on economic sustainability. The AR4 describes the criteria of enabling economic development to proceed in a sustainable manner as a double-edged sword, hinting at the difficulty of defining and implementing the objective of the UNFCCC.¹⁰ While the AR4 stopped short of defining ‘dangerous anthropogenic interference’, it did provide a specific temperature goal by stating that ‘a 2 degree temperature increase to be the upper limit beyond which the risk of grave damage to ecosystems and non-linear responses are expected to increase rapidly’.¹¹

This temperature goal has been picked up in a number of subsequent COP decisions. For example the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention acknowledged the AR4 finding by stating that ‘deep cuts in global greenhouse gas emissions are required so as to hold the increase in global average temperature below 2°C above preindustrial levels, and that parties should take urgent action to meet this long-term goal consistent with science and on the basis of equity’.¹² Not all state parties are happy with the 2°C target, with the AOSIS pushing for 1.5°C warming limit.¹³ The first draft text for 2020 climate instrument¹⁴ contains a number of proposals for including a temperature bound goal of 1.5–2°C within the text. There are a number of options as to where such a goal could be included such as within the preamble (downside being that is not legally binding) or within the objective of mitigation sections, which would make this goal legally binding. Regardless of where the temperature goal is included, it is suggested that the PIJ of the 2020 Climate Instrument will be to prevent dangerous anthropogenic warming by limiting warming to 1.5–2°C.

Role of Climate Principles and Values Coherence

In order for the global climate regime to achieve it’s PIJ (preventing dangerous anthropogenic warming beyond 1.5–2°C) there is a great need to consider values coherence by examining if there is shared understanding among state parties of the collective way forward to meet the PIJ. The preamble¹⁵ and Article 3 of the Convention sets out a number of international environmental principles applicable to the global climate regime. These principles guide the implementation of the instrument and assist the regime in meeting its PIJ.

There has been some debate over the need for principles within the global climate regime. The US did not want to include open-ended principles within the agreement due to concerns their inclusion would create additional commitments beyond those clearly spelled out within the Convention. Developing countries felt that it was essential to include principles within the Articles of the text to guide the implementation....

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• List of Contributors
• Acknowledgements
• List of Abbreviations
• INTRODUCTORY FRAMEWORK
• PART I INJECTING ETHICS INTO GOVERNANCE ARRANGEMENTS
• PART II ETHICS IN A DYNAMIC AND DECENTRALIZED WORLD
• PART III SOCIAL NORMS IN THE GLOBAL CONTEXT
• PART IV MARSHALLING HUMAN RIGHTS TO THE CAUSE
• Bibliography
• Index