This chapter has demonstrated that this thesis will examine the conception of equity adopted by African states within the negotiations for climate change treaties from the UNFCCC to the Paris Agreement, and the extent to which these conceptions are reflected in the final texts of these treaties. This thesis will argue that the African arguments reveal a distributive and restorative justice conception of equity and these principles are reflected to various degrees in the climate change treaties from the UNFCCC to the Paris Agreement. By establishing the notions of equity held by African states, this thesis adds to the knowledge of the concept of equity within international climate change law and the broader issues of climate justice and global inequality.
Chapter two presents a historical and theoretical analysis of different conceptions of equity.
This chapter focuses on three major conceptions of equity: discretionary justice, distributive justice and corrective or restorative justice. It analyses the elements and characteristics of these conceptions of equity and the suitability of each concept as a framework for understanding the arguments adopted by African states in climate change negotiations, from 1992 to 2015. This chapter lays the foundation for subsequent chapters which evaluate and categorise the submissions by African states into various conceptions of equity.
Chapter three tracks the arguments made by African states in various negotiations from the Stockholm Conference in 1972 to the adoption of the UNFCCC in 1992. It interprets these arguments and places them within the different conceptions of equity analysed in chapter two.
This chapter goes further to examine the extent to which the conceptions adopted by African states are reflected in the final wording of the UNFCCC.
This chapter argues that the submissions of African states, negotiating through the G77 alliance, reveals a distributive and a restorative justice conception of equity. Although the UNFCCC does not expressly adopt a particular conception of equity, this chapter shows that the distribution of rights and responsibilities reveals a clear case of distributive justice and to a lesser extent, restorative justice. Chapter three also serves as a background for chapter four, which examines the further development and application of equity in the Kyoto Protocol.
Chapter four examines the application of equity within the Kyoto Protocol, focusing primarily on the Clean Development Mechanism (CDM). This chapter establishes that the Kyoto
18 Protocol addresses the contention between climate change action and the need for development by creating the CDM; a programme which allows developed states to earn emission credits while developing states benefit from the development and transfers of technology inherent in such projects. The chapter also examines some of the dissatisfaction of African states with the implementation of the CDM and their push for a more distributive and representative CDM.
Overall, this chapter argues that the Kyoto Protocol presents a restorative justice conception of equity; one which places primary responsibility for climate change on states that are historically liable for the highest volume of emissions.
Chapter five contains an investigation of the negotiating history of the Paris Agreement and an examination of the final text. It examines the conception of equity adopted by African states in the negotiation of the Paris Agreement and examines the extent to which the Agreement reflects this conception. This chapter also investigates the extent to which the distribution of rights and responsibilities under the Paris Agreement addresses the contention between climate change action and the need for development in Africa.
This chapter establishes that African state parties continue to push for an interpretation of equity based on distributive justice principles: one which prioritises the inequality between different state parties and prioritises the need for development in Africa. The chapter, however, argues that although the Paris Agreement reflects a distributive justice approach to equity, the obligations as currently constituted under the Agreement, are inadequate to ensure that African states can engage in climate change action without affecting their developmental objectives.
The chapter concludes with an argument that the application of equity and the differentiation of rights under climate change treaties, while necessary, cannot be static.
Chapter six presents a general summary of the whole research and the main argument of the thesis. It offers a complete narration of the major arguments advanced within the thesis. It also offers some recommendations for the application of equity in the further growth of the international law on climate change.
19 CHAPTER TWO
THE HISTORICAL AND THEORETICAL FOUNDATIONS OF EQUITY 1. INTRODUCTION
This chapter undertakes an analysis of some of the major conceptions of equity. It provides a theoretical foundation for the subsequent analysis of the submissions of African states in the negotiations of the various climate change treaties from the United Nations Framework Convention on Climate Change (UNFCCC) to the Paris Agreement. It helps to situate these submissions within one or more theories of equity. Particular focus is placed on the conceptions of equity as discretionary justice, distributive justice and restorative justice.
The chapter examines the history and use of equity through various legal traditions. It then proceeds to discuss the evolution of the concept within the international legal system. It traces this evolution from the ideas of discretionary justice to its use in the new international economic order and its popularization as a concept within international environmental law.
This chapter establishes that the principles of distributive and restorative justice offer the best theoretical framework for examining the African conception of equity within international climate change negotiations. Distributive justice addresses issues such as the differing levels of ability and the need for compensation, which are of relevance within these climate change treaties. Unlike the conception of equity as discretionary justice, the principle of distributive justice speaks to the issue of climate justice and the inequality in the ability of different state parties.
Additionally, restorative justice offers justification for one of the major grounds - historic injustice - upon which African states argue for the application of equity and the ends to be met by such application. A combination of both distributive and restorative justice, therefore, offers a coherent framework for understanding the submissions and arguments of African states with respect to the application of equity and for analysing the final text of these climate change treaties.
20