LJIL Symposium Vol 25-2: Fairness in International Environmental Law – Against Pragmatism?

[Eric Posner is Kirkland & Ellis Professor of Law and Aaron Director Research Scholar at the University of Chicago]

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.

Mario Prost and Alejandra Torres Camprubi’s article begins promisingly, with its criticism of IEL scholars’ “tacit disciplinary mindsets” which see international environmental law against all evidence as a “heroic and transformative project.”  But while one would have expected the authors then to launch a broadside against the idealistic tendencies in the IEL literature that have rendered most of it irrelevant to real-world policymaking, they pivot and criticize the literature for ignoring “fairness”—which is news to me.  The oddness of this approach is epitomized by their choice of target: my book (with David Weisbach), Climate Change Justice.  They are right to argue that we discount fairness in our book, but I do not think anyone would regard our book as representative of conventional IEL scholarship.  If that is their view, it is far more wounding than any of their substantive criticisms.

In any event, let me address these criticisms.  Prost and Camprubi argue first that we present the South “as an opportunistic negotiator” rather than as a “bona fide partner.”  I fear that we might get lost in semantics here, or the clubby rhetoric of diplomacy, but I regard all countries as “opportunistic negotiators,” out to seize the main chance, and willing to use whatever means available.  So if I say or imply that the South is “opportunistic,” I am treating southern countries as equals of the North, and resist the clichés so common among scholars, who take the rhetoric of (often authoritarian) countries at face value, and see developing countries as hapless victims or righteous spokesmen for justice.

Prost and Camprubi go on to argue that one cannot delink climate cooperation and (distributive) justice, but I would point out that in every other area of international law such a delinking takes place routinely and indeed without comment.  When two countries enter, say, an arms control agreement, or a friendship treaty, or an arrangement that promotes economic cooperation, there is rarely a thought about righting past wrongs and redistributing from rich to poor.  Indeed, leaders on both sides will work assiduously to push aside historical grievances that might otherwise derail a mutually cooperative arrangement that would benefit people on both sides of the border.  Why should a climate treaty be any different?

In their criticism of what they call the “indiscrimination argument,” Prost and Camprubi make two points.  The first is essentially that rough justice is better than no justice: punishing a large group of people that includes a number of innocents may be better than punishing no one at all.  The second is that the most objectionable effects of rough justice can be ameliorated in the context of a climate treaty through domestic implementation: if the United States accepts a large burden, then the government can choose to distribute this burden among U.S. citizens however it wants, and will ideally put most of it on the gas guzzlers rather than on people who scrimp and save.

These points are well taken, especially the second.  But as to the first, I would point out that the more compromises are made in the final climate treaty relative to background norms of justice, the more one moves away from “fairness” and toward the sort of pragmatism that Weisbach and I advocate in our book.  Prost and Camprubi are essentially arguing that we should take redistributive justice as our goal, and figure out a way to reach that goal using a climate treaty.  Pragmatic compromises of intuitions about corrective justice are justified if they take countries closer to their goal.  Whether or not this is a reasonable approach toward redistributing wealth, it is not one for solving the problem of climate change, especially given rich countries’ longstanding reluctance to submit to more than a minimal level of redistribution.

Finally, let me just say a few words about Prost and Camprubi’s argument against the principle that those who benefit the most should also pay the most.  They are correct that we (briefly) present this principal as a kind of fairness argument, but in fact my view is that this idea better reflects a pragmatic constraint than an ethical principle.  As a matter of fact, or so I would argue, countries that benefit little from a climate treaty will not accept large burdens, and we need to confront this problem if we are going to see a climate treaty in our lifetimes.  Indeed, I would argue that the exemption of developing states—even wealthy developing states like Russia—from the burdens in the Kyoto protocol reflected this “realistic” assessment rather than a belief that the rich “North” has an ethical obligation to redistribute wealth to Russia and countries like it.  What I would try to preserve from our argument in the book is a simple point, which is that what is “fair” is never a simple question, so as long as it is accepted that a treaty must be “fair,” rather than simply a mutually beneficial deal, an endless series of often conflicting moral intuitions will be brought to bear on a very complex problem, and the predictable result will be gridlock.  To the extent that “those who benefit the most should pay the most” is an ethical principle that has widespread support, the fairness debate will be further muddied.