LJIL Symposium Vol 25-2: Fairness in International Environmental Law – Against Fairness? A Response to Mickelson and Posner

[Mario Prost is a Senior Lecturer at Keele Law School (UK) & Alejandra Torres Camprubí is a Research Fellow at the  Faculty of Law of the Universidad Autónoma de Madrid]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

We would like to thank the symposium organizers and contributors for providing an opportunity to discuss some of the arguments we make in our recent article ‘Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’. In this article, we take issue with International Environmental Law (IEL)’s traditional neglect for considerations of distributive justice and its bias against the South – a bias first noted by Mickelson more than a decade ago in a groundbreaking article. We also consider the more recent and more direct attack from law and economics scholars against the notion that considerations of justice should play a role in the design of environmental regimes – an attack developed in its most systematic and methodical form by Posner and Weisbach in their Climate Change Justice. We are very pleased that Mickelson and Posner agreed to comment on our article and to be given a chance to respond to them.

Let us start with a point of clarification. In his response, Posner takes offence at the fact that his work is characterized as representative of conventional IEL scholarship, something he finds ‘far more wounding’ than any of our substantive criticisms. Whilst we sympathise with Posner (no one likes to be called conventional), the characterization is not ours and the point we make in our article is not that Posner and Weisbach are in the mainstream. We simply observe that, in addition to IEL’s quiet disregard for the South, a far more blunt and direct attack has been launched by law and economics scholars against the Third World’s claims of environmental justice. To be clear, we feel that Climate Change Justice does share much in the mainstream’s prejudice against the South, if only in its stereotypical depiction of ‘the poor’ making ‘unrealistic demands’ on industrialized countries and asking them to pay ‘simply because they are rich’. At the same time, we appreciate that, normatively, Posner is as far as it gets from the mainstream and its narrative of heroism.

In fact, Posner’s attitude is perhaps best understood as the mainstream’s perfect opposite. The IEL mainstream, as we try to demonstrate in our article, pretends to care about justice whilst continuing to use concepts, representations and a vocabulary which are intrinsically biased against the South. There is a form of hypocrisy at play – a Tartuffery almost –which, like Mickelson, we find ‘outrageous’ and ‘angering’. In contrast, Posner does talk about fairness, and at length, whilst pretending not to. What Posner calls ‘pragmatism’ and ‘realism’ may not look like fairness talk, yet fundamentally it is just that. The important point of course is that the fairness Posner advocates is fairness American style, a fairness which demands conveniently forgetting past wrongs because they are too complex to remedy, looking at carbon flows rather than carbon stocks, and rejecting per capita emissions as a principle of distribution because of their ‘politically unacceptable’ cost for large emitting nations. Posner’s work is thus not hypocritical in the way that conventional IEL can be. It is, however, political (we do not regard this as a bad thing) and in our view serves the same Western interests that the IEL discipline generally serves, only more blatantly.

From a substantive point of view, Posner’s response reiterates the central argument of Climate Change Justice, i.e. that climate change and justice should be delinked because the justice debate ‘muddies’ the already troubled waters of climate negotiations and because endless qualms about fairness will inevitably lead to a gridlock. In Posner’s view, theUS and other large industrialized emitters cannot accept a treaty that places too large a burden on them whilst primarily benefiting other nations. Questions of retribution and distribution must therefore be dealt with separately from questions of climate mitigation and adaptation. This ‘delinking’, he adds, does in fact take place routinely and without comment. Why should a climate treaty be any different, he asks, from a treaty of friendship or an arms control agreement?

Despite its apparent simplicity, Posner’s argument does in our view rest on a number of highly questionable assumptions. Firstly, the premise that Western countries would benefit the least from a climate treaty is problematic. As we argue in our article, whilst industrialized nations are generally less vulnerable to climate change, they also have the most to lose from it and therefore, we would argue, have the most to gain from a climate treaty. Secondly, Posner assumes that, if emancipated from the constraints of retributive and distributive justice, a climate deal has far better chances of seeing the light of day. But if, as Posner argues, Western countries cannot realistically be expected to sign up to a treaty that asks too much of them whilst serving the interests of the South, then surely the South cannot realistically be expected to give up its claims and sign up to a treaty that would serve to preserve the economic interests and dominance of the West. Realism, in other words, cuts both ways and, unless it addresses some of the claims of the South, a climate deal that is emptied of its retributive or distributive content is just as unlikely to be adopted (it is, in other words, just as unrealistic) as one that is full of it.

Fundamentally, however, our main issue lies with Posner’s conceptualisation of environmental treaties – and of the climate regime in particular – as mere contractual arrangements designed only to achieve joint gains. Posner’s normative argument is perfectly coherent if taken within the context of law and economics. If treaties are construed as reciprocal agreements intended to make all parties equally better off, i.e. as contracts, then a treaty that deviates from that principle and makes some parties worse off than others is by definition unacceptable, even if justice or fairness demand such deviation.

Whilst this vision may have some merits in relation to the sort of bilateral treaties mentioned by Posner, it is in our view fundamentally unfit to the analysis of most environmental treaties, and of the climate treaty in particular. A climate treaty, we would argue, cannot be construed merely as a contractual arrangement in which a perfect balance of rights and obligations is maintained and from which all parties benefit in equal proportion. Climate change is fundamentally a resource allocation problem (the resource being the carbon absorbing capacity of the atmosphere). Because resource allocation is by definition a distributional question, a treaty that deals with climate change is in our view best understood as a form of legislation and not as a contract. The main implication of thinking of the climate treaty in this way is that, as legislation, it needs not be governed solely by the synallagmatic logic of reciprocally shared and accepted obligations. Legislation is intended to address collective action problems in accordance with established principles of justice. More fundamentally for our argument, legislation does not concern itself with maintaining a strict balance of costs and benefits for all parties concerned. It is in the nature of legislation to create winners and losers. If one accepts this as a valid proposition, then Posner’s argument loses much of its force.

Finally, let us respond briefly to a point made by Mickelson in her contribution. Whilst Mickelson is in broad agreement with our argument, she feels we somehow underestimate the importance of the principle of common but differentiated responsibilities (CBDRs) from the perspective of the South. This is an important critique and we are pleased to be able to clarify our position here. We do not mean to suggest in our article that CBDRs are unimportant or that the current retreat from CBDRs is insignificant. The South has fought long and hard to see CBDRs recognised as one of the key policy principles of international environmental law and we agree with Mickelson that this represents a remarkable victory for the South in a field dominated by Western experts, diplomats, lawyers and scientists. The point we are making is twofold. First, this victory – however significant it may be – is a precarious one. CBDRs have been broadly endorsed by states as a policy objective. Their precise legal implications, however, remain a hot dividing line between North and South and the very notion of differential treatment has been fiercely contested by Western nations in recent environmental negotiations. Second, we argue that the broad endorsement of CBDRs in a number of key IEL instruments has created a false sense within Western elites that problems of environmental justice have been effectively resolved and that the principal claim of the South (i.e. the claim for differential treatment) has already been satisfied. This, in our view, remains one of the main reasons why IEL’s engagement with issues of environmental justice/fairness has, to date, been so poor.