3. THEORIZING EQUITY IN INTERNATIONAL LAW
3.3 Equity as corrective or restorative justice
This section examines another sense in which the concept of equity has been construed:
restorative justice. It examines the principle of corrective justice, its elements, and its suitability as a concept for understanding the interaction between developed and developing states in global climate change negotiations. As will be seen below, the principle of corrective justice places the responsibility for remedying an inequality at the feet of those who are responsible for such inequality.
This is relevant given the weight that developing states have placed on the historical liability of developed states for climate change and the relationship between this responsibility and the need for equity in climate change agreements.236 An understanding of this conception of equity
236 See section 4 of chapter three and section 3 of chapter four, and section 2.2 of chapter five for a fuller discussion.
52 is, therefore, useful in framing the arguments of African states in climate change negotiations.
The terms ‘corrective’ and ‘restorative’ justice are employed correspondingly and carry the same meaning within this thesis. This section also relies extensively on criminal justice literature.
3.3.1 Definition and justification
To understand the concept of restorative justice within the context of climate change, it is necessary to restate the nature of the climate change problem. Climate change is a result of the growth in the release of greenhouse gases into the atmosphere, and the majority of them originate from developed states, otherwise known as the global North.237 Unfortunately, states of the global South will be disproportionately affected, and they lack the capability to tackle the consequences of climate change.238 Climate change may, therefore, be regarded as a harm done by developed states against developing states.239
The question then arises as to how to remedy this climate injustice. When one person does harm against the other, what actions are necessary towards the victim and the harm-doer in order to deal with the injustice? Restorative justice answers this question by advocating for an approach that focuses on restoring and healing the victim.240 Like Tony Marshall elucidates,
‘restorative justice is a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for their future.’241
This means that the parties involved can directly participate in the justice process by stating their positions and collectively coming to an agreement on the injury caused, the offender’s responsibility for that injury and how to restore a sense of justice between the parties.242 Restorative processes may include the payment of compensation to the victim or to the wider society and the imposition of punishments on the offender. However, such punishment is
237 See section 2.1 of chapter one.
238 See section 2.1 of chapter one.
239 The issue of intention and the state of scientific knowledge at the beginning of the industrial revolution is a different topic entirely, which this thesis does not cover.
240 David Miers ‘The responsibility of the rights of victims of crime’ (1992) 55(4) Modern Law Review 496; John Braithwaite Restorative Justice and Responsive Regulation (2002) 12.
241 Tony Marshall ‘Restorative justice on trial in Britain’ in Heinz Messenger & Hans-Uwe Otto (eds) Restorative Justice on Trial: Pitfalls and Potentials of Victim-Offender Mediation – International Research Perspectives (1992) 15–28.
242 Michael Wenzel, Tyler Okimoto, Norman Feather et al ‘Retributive and restorative justice’ (2008) 32 Law and Human Behavior 376; Howard Zehr The Little Book of Restorative Justice (2002) 37.
53 primarily targeted towards the benefit of the victim and, where possible, the transformation of the offender.243
The core element of restorative justice is the deliberative process and the focus on healing the victim.244 It brings the wrong done against the victim to the centre of the conversation, seeks to ensure that the offender understands this injury and commits to remedial action.245 Restorative justice ensures that beyond punishing the offender, there is reparation or compensation for the victim. There are three fundamental elements of restorative justice.
Firstly, an offence is regarded primarily as a conflict against the victim and the victim must remain the focus of the justice process. Secondly, the justice process must focus on reconciling and repairing the harm done against the victim. Lastly, the justice process must be a deliberative process between the parties involved in the harm and injury.
Restorative justice has become a part of the literature and discussion on remedying transnational injustices of the past with some calling for the need for reparations for injustices such as the slave trade.246 One of the most vigorous proponents of the application of restorative justice with respect to the North-South relationship and the need for justice was Muhammed Bedjaoui, a former judge of the ICJ. In his book, Towards a New International Order, Bedjaoui recognises that there is a great gap in the global distribution of wealth and argues that Europe and the US are primarily liable for this gap.247 According to him, this group of states have taken advantage of the resources of the developing world and are implicated in the high levels of inflation, hunger, unfair trade and indebtedness in the developing states.248
Bedjaoui argues further the current international legal system, while pretending to be neutral, has contributed to the consolidation of this prejudicial economic relations.249 This system was European at inception and, according to him, served ‘as a legal basis for the various political and economic aspects of imperialism.’250 Bedjaoui proceeds to argue that while international
243 Wenzel et al (n242) 376.
244 Donald Hermann ‘Restorative justice and retributive justice: An opportunity for cooperation or an occasion for conflict in the search for justice’ (2017) 16(1) Seattle Journal for Social Justice 71, 81; Tony F Marshall Restorative Justice: An Overview (1999) 5; Braithwaite (n240 above) 12.
245 Hermann (n244 above) 81; Wenzel (n242) 377.
246 Patricia M Muhammad ‘The Trans-Atlantic Slave Trade: A legacy establishing a case for international reparations’ (2013) 3(2) Columbia Journal of Race and Law 147.
247 Muhammed Bedjaoui Towards a New International Economic Order (1979) 26-49, 119.
248 Ibid 36. There were other scholars in that generation who rejected this claim; see Ian Little ‘Economic relations with the third world - Old myths and new prospects’ (1975) 22 Scottish Journal of Political Economy 223; Barbara Ward The Rich Nations and The Poor Nations (1962) 13-61.
249 Bedjaoui (n247 above) 48-49, 63.
250 Ibid at 50.
54 law cannot by itself be an instrument of change and development, it can enhance a new economic order through the creation of new legal rules and standards.251 These rules must ensure development, which is balanced and harmonious, and ensure that all states and nations benefit.252
This objective can only be achieved through the adoption of equity into the international legal order.253 Equity helps to correct inequalities and by emphasising the principle of equity, international law is able to foster a ‘balanced and harmonious development.’254 Bedjaoui stresses that the aim of such introduction of equity is to limit, and possibly, eliminate the inequality between the developed world and the poor developing states. Consequently, there is an joint duty on the part of wealthy nations to foster development and a corresponding global right to development on the part of developing states.255
Bedjaoui’s conception of equity within international law is a clear adoption of restorative principles. He conceives of poverty and global inequality as a crime for which developed states are responsible and the international legal system must seek for ways to enhance harmony between all states. The end goal of such coming together of states must be to enhance the development of states of the global South; the victims of the exploitation by developed states.
Similarly, Haq argues that developed states should be required to give developing states the necessary support so as to enhance ‘economic equity in the global context.’256 Janis succinctly describes these ideas of equity as ‘a form of distributive justice, aimed to meet the needs of developing countries.’257
However, some scholars disagree on this interpretation of equity and its role within the international legal system. These scholars view equity strictly within its use in judicial decision making.258 In other words, equity is seen strictly as the discretionary power exercised by a judge to do justice in a case where positive law has made no clear provision. Equity is rejected as a concept for addressing an issue like global economic disparity. Brownlie argues that equity
251 Ibid at 63.
252 Ibid at 110.
253 Ibid at 63.
254 Ibid at 127.
255 Ibid.
256 Inamul Haq ‘From charity to obligation: A third world perspective on concessional resource transfers’ (1979) 14 Texas International Law Journal 389, 406.
257 Janis (n29 above) 22.
258 Ian Brownlie ‘Legal status of natural resources in international law (Some Aspects)’ (1979) 162 Recuiel des Cours 287.
55 provides ‘little but disappointment as a tool for solving these sophisticated problems.’259 Within the socio-economic context, the principle of equity, he contends, is ‘no more than a bundle of impressionistic ideas.’260
3.3.2 Interim conclusion
The concept of equity as corrective or restorative justice offers a good theoretical framework for analysing the arguments and conceptions of equity by African nations within the international law on climate change. It emphasises the need to remedy past injustices. Unlike the Rawlsian conception of equity, this conception of equity rejects the notion that inequality is a result of differences in natural endowment. Instead, it takes the position that if injury has been done against a member of the society, the aggressor must acknowledge the harm done and seek for ways to remedy this harm.
Restorative justice provides a useful framework for understanding the use of equity within international climate change treaties. It makes the victim the central focus of the justice process.
This implies that the focus is not merely to cast aspersion on developed states for past emissions or for exploitation of global resources. Instead, it is to come to terms with the consequences of these past activities and the need to remedy them.
Restorative justice is also useful as it emphasises a deliberative process in determining what amounts to just deserts or adequate remedy. It does not advocate the traditional adjudicatory process where an award is merely handed down. This helps to understand the negotiation process of the treaties and agreements as an avenue where parties come together to decide what is in the best interest of historically disadvantaged states and how to enhance future capacities.
As our examination of the travaux preparatoires of the UN climate change treaties will reveal, the conception of equity that African states sought was such that embraced the restorative justice principles. It placed focus on the plight of African states and the historical responsibility of developed states, both for climate change and global inequality. The negotiation process was, therefore, seen as deliberative to ensure that the history of colonialism and other forms of injustice against the global South was remedied in the distribution of rights and responsibilities.
259 Ibid.
260 Ibid.
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.