56 This work will adopt both the distributive and restorative justice principles in explaining the conception of equity by African states. Whereas distributive justice emphasises the existing inequality between states, restorative justice provides a framework for understanding the arguments on historical responsibility within the climate change negotiations. Jointly applied, these principles lead to an interpretation of equity that ensures that African states can undertake climate change action without limiting their economic or developmental pursuit.
57 raised in the African submissions.261 Discretionary justice is focused on a case-by-case adjudication of facts in a manner that bridges any gaps in the law. This is inadequate for the climate change regime, where the African states argue for definitive sets of rights and responsibilities.262
Distributive justice, on the other hand, rests on the notion that members of the society often have different capacities and different access to primary goods. It will be unjust if certain members of the society, by virtue of their natural abilities, are significantly well-off while others lack basic necessary goods. Such a state of injustice must be remedied. Distributive justice argues for a redistribution of goods in a manner that seeks to bridge the existing wealth gap between the rich and the poor.
The distributive justice conception of equity is useful for analysing the contention between climate change action and development in global climate change negotiations. It highlights the unequal capacities of different states within the international system. While states of the global South are largely underdeveloped, states of the global wealth enjoy high levels of economic development. This, therefore, makes global inequality and the need to enhance global development central to how rights and responsibilities are shared under climate change agreements.
However, the application of distributive justice within the international legal system has been questioned on the ground that the duty to take care of the less well-off only arises due to the extent of the power exercised by the sovereign. This means that distributive justice only applies as a needed basis for the exertion of sovereign authority. Since no such power is wielded under international law, there is no room for the application of distributive justice.
This chapter has shown that this objection is false. Distributive justice does not arise out of the power of the sovereign but from the social contract and will be relevant within any community, whether domestic or international. There is a form of social contract that exists within the community of states and the goal of distributive justice is to ensure that inequality within any society is remedied. The existence of differing capabilities and thus different levels of wealth within the global community is enough reason for the application of distributive justice.
261 Section 3.3 and section 4 of chapter three, section 3 of chapter four and section 2 of chapter five.
262 Ibid.
58 Furthermore, the interdependence of states has become non-voluntary, even when it is not coercive. There is a significant measure of inter-dependence between states and drawing a sharp distinction between the international and the national, reserving distributive justice for only the latter, would lead to injustice in a world of interdependence. Distributive justice in international law becomes necessary if states must cooperate to tackle certain global issues.
This principle offers a framework for examining the global order and identifying the legal rights arising therefrom.
However, the principle of distributive justice fails to fully account for the historical causes of inequality among nations. It takes inequality as a given without interrogating the human injustice which often results in inequality.
Unlike the principle of distributive justice, corrective justice does not ground the application of equity on different capacities. Instead, it argues that the duty to take care of the poor arises from the fact that their poverty is a product of injustice within the political system. In the state of nature, all humans were equal and equally deserving of dignity. Redistribution is, therefore, not an act of charity but a legal duty to remedy injustices of the past, injustices responsible for the existing inequalities. Once past injustice can be shown, an argument for restorative justice can be made. Within the present context, it implies that the history of colonialism and the inequitable use of earth’s resources by developed states gives rise to a legal duty to remedy these past injustices.
The principles of distributive justice and restorative justice provide a compelling argument from which this study proceeds. Jointly applied, the principles of distributive and restorative justice address the two major areas of importance to the African region in the climate change negotiations: the matter of lack of capacity and the issue of historic injustice.
These principles provide a conception of equity that emphasises the need to address inequality between states by applying distributive principles. Even in the absence of a sovereign, redistribution is justified by the need to remedy the injustices of the past for which developed states are responsible. This past wrong gives rise to a present legal duty.
This thesis adopts the distributive and the restorative justice conceptions in explaining Africa’s conception of the principle of equity as a means to solving the contention between the need for development and the need for climate action. A combination of these theories addresses the need for justice in the distribution of rights and responsibilities within climate change treaties.
59 Flowing from the above, the next chapter analyses the submissions of African states (arguing through the G77) in the formation of the UNFCCC and what conceptions of equity are revealed in these submissions. The chapter examines the events, report and conferences leading to the adoption of the treaty and what these tell us about the conception of equity adopted by African states in international climate change law.
60 CHAPTER THREE
EQUITY, DEVELOPING COUNTRIES AND THE CLIMATE CHANGE REGIME
1. INTRODUCTION
As seen from the previous chapter, the principle of equity has evolved across various jurisdictions and, depending upon the context, conveys a wide range of meanings. The conception of equity as distributive justice seeks to ensure a redistribution of goods between members of a society in order to improve the conditions of those who are deprived within that society. It focuses on the redistribution of wealth, even if it implies placing different levels of responsibilities upon otherwise equal members of the society. Similar to this is restorative justice. Like distributive justice, it recognises the unequal position among members and argues that there is a legal duty to compensate for past acts of injustice.
This chapter takes the conversation further by examining the use of equity in the evolution of the international law on climate change. Tracing the negotiations from the Stockholm Conference in 1972 to when the United Nations Framework Convention on Climate Change (UNFCCC)1 was adoptedin 1992, this chapter outlines the conception of the principle by developing states in contradistinction from those of their developed counterparts. The chapter focuses on the history of colonisation and the disproportionate contribution of developed states to climate change and how these issues have informed the conception of equity within climate change agreements.
This chapter highlights the significant difference between the conception of equity by developed states and their developing counterparts and examines how the conceptions of equity by developing states fit into the different theories examined in chapter two. The chapter closes with an examination of the UNFCCC and the conception of equity which is reflected in this text.
Overall, this chapter establishes that while developed states view equity within the agreement as a voluntary or charitable requirement based on their superior levels of financial and
1 Adopted and Opened for Signature, Ratification and Accession by the General Assembly, A/RES/48/189, 20 January 1994.
61 technological capabilities, developing states view equity as a necessary requirement of justice with attendant legal duties. Developing states believe that this duty arises from the role of developed states as major emitters of greenhouse gases (restorative justice).
2. THE NEED FOR GLOBAL REGULATION OF THE ENVIRONMENT