Download 1 Darrel Moellendorf Forthcoming in Dominic Roser and Jennifer

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Darrel Moellendorf
Forthcoming in Dominic Roser and Jennifer Heyward eds.
Climate Change and Non-Ideal Theory, Oxford University Press
Taking UNFCCC Norms Seriously
We are urgently in need of a comprehensive climate change mitigation treaty.1 This
urgency affects the kind of moral guidance we should expect and can reasonably propose to
others. To which norms and ideals can we, should we, appeal to guide the development of a
comprehensive climate change treaty? Due to the decidedly non-ideal circumstances of
climate change, perhaps the development of a nonideal theory guided by an ideal account of
justice is appropriate. I shall argue that that is not the case. Insofar as nonideal theory is
dependent on an account of ideal theory, which it serves, nonideal theory is ill-suited to offer
practical moral guidance in light of the urgency of the circumstances. That claim does not
entail, however, that climate change policy must be morally blind. Instead, I argue that the
United Framework Convention on Climate Change (UNFCCC) is an important source of
moral norms. There are very good normative and prudential reasons to take these norms
seriously. The normative background provided by the treaty is a significant good for the
collective effort of international cooperation. But also given the likely costs if the force of the
background were to become significantly weakened, it is reasonable for each state to want to
see the UNFCCC remain in force and therefore also not to erode it through non-compliance.
The strongest moral reasons to comply with the norms of the UNFCCC, however, are the
promissory obligation that a state assumes by ratifying the convention and the duty of fairness
in an international system of energy use that appropriately responds to climate change.
This chapter proceeds as follows. The next section discusses two reasons to believe
that a comprehensive international climate change mitigation treaty is an urgent matter. The
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second section argues that nonideal theory, at least as it presented in the monumental work of
John Rawls, is impractical in light of the urgency of the matter. The third section rejects a
view that holds that as a matter of feasibility the primary norm guiding the construction of a
climate change treaty should be a measure of efficiency. The fourth section presents the
arguments based on a promissory obligation and on fairness to respect the right to sustainable
development, a fundamental norm of the UNFCCC. The fifth section considers and responds
to a criticism of the right to sustainable development. And the final substantive section
defends the view that proposals should adhere to UNFCCC norms because of both the
collective good that the UNFCCC serves and the long-term interests of the member states.
The upshot is a set of strong reasons to take the norms of the UNFCCC seriously.
Urgency
Mitigation policy seeks to reduce the negative effects of climate change. This is done
by reducing emissions of greenhouse gasses, so as to halt the increase of their build up in the
atmosphere. According to the current scientific consensus, by any reasonable judgment of the
aims of mitigation we have very little time to get serious. In 2010 at the 16th Conference of
the Parties of the UNFCCC, the member states decided to accept the mitigation goal of
limiting mean surface temperature increase to 2°C above pre-industrial times. The most recent
report of the Intergovernmental Panel on Climate Change (IPCC) summarizes the current
understanding of the relationship between temperature targets and cumulative carbon
emissions. Because of the long residence time of CO2 in the atmosphere, atmospheric
concentrations of it should be considered a function of total anthropogenic emissions of CO2
since the beginning of the Industrial Revolution. For any given temperature increase there is
then a corresponding threshold of cumulative emissions. In order to have better than 66
percent chance of limiting warming to 2°C, total historical emissions of carbon would have to
be limited to one trillion tons. (IPCC 2014) We have already used more than half of that
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budget. At the time of writing, total emissions are 581 billion tons and climbing; and given
current emissions, the date the trillionth ton will be emitted is Thursday, 15th March, 2040
(Trillionth Tonne). But we are not emitting at a steady rate. On the contrary, despite the
reductions in industrialized countries, global emissions are increasing. Thus, the date at which
we will emit the trillionth ton is coming ever closer. Consult http://trillionthtonne.org/ to see
the date at the time at which you are reading.
Whether the 2°C temperature limit is reasonable is a complicated moral judgment that
depends upon the effects of the mitigation plan on the global poor, who have a reasonable
claim to increase their energy use so as to pull themselves out of poverty (Moellendorf 2014).
Poverty eradication requires increased energy use; and currently billions of people live in
energy poverty. 1.4 people have no access to electricity, and 3 billion burn biomass on crude
indoor stoves. The resulting indoor pollution is responsible for over 1.45 million premature
deaths annually. More children under age 5 die from disease caused by indoor pollution than
die from malaria and tuberculosis (IEA 2010).
Any temperature goal will have to limit total cumulative emissions. The goal of 3°C
requires limiting total carbon emission to around 1.5 trillion tons, the date for which is
currently Friday, 28th July 2058, but moving closer. To achieve a 4°C limit we would need to
cap all emissions at two trillion tons, which at the time of this writing would be Sunday 15th
February 2071 (Trillionth Tonne). A credible mitigation plan would initiate a schedule of
reductions in global emissions in order to push further into the future the deadline after which
the economy must be carbon-free to maintain the goal. The need to implement a schedule of
reductions in order to postpone the final transition to a carbon-free economy is urgent, all the
more so if we assume the 2°C goal.
The uncertainty of irreversible, and possibly cataclysmic, events adds to the urgency
of the mitigation project. In the cold depths of the arctic waters a massive amount of methane
in the form of hydrate crystals has settled. Methane is also stored in the frozen lakes and
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tundra of the far north. Methane is 25 times more powerful than CO2 as a greenhouse gas. As
a result of warming waters and thawing tundra it is being released into the atmosphere at
unprecedented rates (Science Daily 2008). Due to the thermal inertia of the oceans this release
will continue even after we arrest atmospheric warming.
From ice core samples we know that atmospheric concentrations of methane are
currently higher than they have been in 400,000 years. Sufficiently high levels of methane in
the atmosphere would be capable of producing abrupt and irreversible (on any time scale that
matters to us) climate change. Paleo-scientists believe that warming 635 million years ago
resulted in methane hydrate release that warmed the planet abruptly and ended one of the
most severe ice ages in the history of the planet (Kennedy 2008). The current release is a
trickle in comparison to what might occur. The consequences of a massive release would be
cataclysmic for human life.
We are uncertain of the threat of such a massive a release. This is uncertainty in the
technical sense, the understanding of which we owe to the pioneering work of economist
Frank H. Knight (Knight 1921). It would be inaccurate to say that massive methane release is
a low probability but high impact event because we cannot establish probabilities of its
occurrence based on our understanding of the frequency of analogous cases. We have no
understanding of sufficiently analogous cases.
Uncertainty does not in general supply us with a reason to act. The mere fact that we
do not know whether there will be a massive and devastating release of methane does not
render urgent the mitigation project that might prevent it. More needs to be said about why
uncertainty of the possibility of such an event establishes reason to believe the mitigation
project is urgent.
Rather than arguing in great detail, I will merely sketch an account of when
uncertainty provides reason to take precautionary action. I have discussed this at greater
length elsewhere (Moellendorf 2014). Four conditions are collectively sufficient to warrant
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precautionary action against an outcome. (1) We have very good reasons to avoid the
outcome. (2) The opportunity costs of avoidance seem minor in comparisons to the reasons
that we have to avoid it. (3) The outcome’s occurrence is in general terms consistent with our
understanding of how the world works, even though the details in the particular case are not
well understood. And, (4) some of the causal antecedents of the outcome are in place. This
last condition requires that our general understanding of the events that would produce the
outcome include understanding of at least some of the causal antecedents. In conditions such
as these it would be reasonable to take precautionary action to avoid the outcome. This is
roughly the situation we are in with respect to methane release.
Nonideal Theory
The need to reform institutions governing the use of energy in order to mitigate
climate change might suggest that the relevant moral considerations are a matter of nonideal
theory since the point of nonideal theory is transitional. Discussion of nonideal theory entered
into contemporary political philosophy through the work of John Rawls, who in A Theory of
Justice holds that, ‘Nonideal theory…is worked out after an ideal conception of justice has
been chosen.’ (Rawls 1999a, p. 216) He characterizes the priority of ideal theory to nonideal
theory more clearly in The Law of Peoples.
Nonideal theory asks how this long-term goal [of ideal theory] might be achieved,
or worked toward, usually in gradual steps. It looks for policies and courses of
action that are morally permissible and politically possible as well as likely to be
effective. So, conceived, nonideal theory presupposes that ideal theory is already
on hand. For until the ideal is identified, at least in outline—and that is all we
should expect—nonideal theory lacks an objective, an aim, by references to which
its queries can be answered (Rawls 1999b, p. 89-90).
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The Rawlsian view then is that ideal theory provides the compass for nonideal theory.
Nonideal theory judges the merits of any recommendation in terms of its moral permissibility,
political possibility, and effectiveness in the transition to the ideally just arrangement.2
Effectively mitigating climate change requires international cooperation. An ideal
theory of justice that might serve as the aim for such cooperation would state the claims of
states in the international systems or the claims of the people of the world. But the aim of
climate change mitigation would not be complete without an account of the claims of future
generations for whose sake prior generations are mitigating. The first step then in formulating
a Rawlsian nonideal theory of climate change justice would be the defense of accounts of
ideal global and intergenerational justice. That’s a hugely ambitious task. Perhaps instead one
could pursue the more modest goal of accounts of ideal global and intergenerational justice
merely in relation to climate change. But given the far ranging effects of energy policy and
climate change on social institutions and human well-being, it seems doubtful that one would
get the ideal principles of climate change justice right without coordinating them in the
broader context of the general ideal principles of global and intergenerational justice.3
Could the principles of ideal justice governing climate change could simply be settled
first in isolation from all other considerations of ideal global and intergenerational justice and
then be fit into broader accounts of global and intergenerational justice? Such an approach
seems methodologically suspect and inconsistent with respect to how Rawls approaches
justice. Generally, the methodological problem concerns the ability to know what the ideal
theory of climate justice could be absent knowing what as a matter of ideal theory is owed to
future generations and non-compatriots. Climate change institutions would have dramatic
effects on people’s wellbeing far into the future and around the globe. There could be little
confidence in the provisional claims of the ideal theory of justice in climate change, given the
need to reconcile it with the larger ideal theory.
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Rawls holds that some matters of justice have priority over others, such as for example
the priority of liberty over distributive justice (Rawls 1999a, p. 214-220 & p. 474-480).
Perhaps if principles of climate change justice had priority over other principles of justice, an
ideal theory of climate change justice could be decided in isolation from the broader concerns
of ideal global and intergenerational justice. The other principles would have to fit with the
principles of climate change justice rather than seeking to make the latter fit into the broader
ideal theory. To claim that an ideal theory of climate change has priority over other matters of
global and intergenerational justice would require considerable argument; and given that the
concerns of climate change on people’s wellbeing are similar to other considerations of
justice, it seems doubtful that the claims of the ideal theory of climate change could have such
priority. Nor on Rawlsian grounds does it seem likely that we can give a reasonably definitive
account of the institutions that would satisfy ideal theory by considering only the effects of
climate change on human wellbeing. According to Rawls it is the complete institutional
background arrangement, not any one institution that is relevant to considering whether
distributive principles of justice are satisfied. For example, neither the price system of the
labour market, nor non-market institutions guaranteeing a ‘suitable minimum’ are judged in
isolation when considering the justice of distributive shares (Rawls 1999a, p. 244-245).
Rather, Rawls judges whether the difference principle is met only ‘once the whole family of
policies is given.’ (Rawls 1999b, p. 161) An account of non-ideal justice for a particular
institution should then be developed with an eye to a complete institutional arrangement.
Nonideal theory decides that some institutions or policies should be prioritized over
others because doing so is most permissible morally, most feasible politically, or most
effective in moving towards the ideal. Hence, a society might decide to pursue fair equality of
opportunity primarily by means of education policy rather than by means of constraining
family decisions about the transfer of wealth and exposure to cultural events. That would be a
matter of nonideal theory settling on the best course to realize a general ideal of fair equality
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of opportunity in a permissible and effective manner. But what counts as permissible can only
be determined in light of the rest of the ideal theory of justice, and presumably in the present
example in light of the principle of equal basic liberties. Rawls believes that the claims of
ideal intergenerational justice (just savings) must be satisfied before proceeding to distribute
within a generation (Rawls 1999b, p. 160). This is based on the plausible thought that before a
generation can justly divide up its resources it must have an account of which resources are its
own and which must be invested for subsequent generations. That view acknowledges a
priority of intergenerational claims over the intra-generational ones in an ideal theory of
justice, but it does not license developing an account of principles of justice relating to
climate change over principles of justice relating to other matters of intergenerational ideal
theory.
A nonideal theory of climate change justice cannot be formulated and justified without
ideal theories of global and intergenerational justice ‘on hand.’ In the context of urgency this
is a considerable liability for nonideal theory, which is fundamentally practical. Recall
Rawls’s claim that nonideal theory, ‘looks for policies and courses of action that are morally
permissible and politically possible as well as likely to be effective’ in the transition to the
ideal. Generally accounts of the appropriate action to take in pursuit of an ideal will be at least
as controversial as the accounts of the ideal. Indeed, accounts of nonideal theory are likely be
more controversial than the accounts of ideal theory because they will possess whatever
controversy there is about the ideal as well as controversy about how best to realize the ideal.
Moreover, Rawls maintains that only reasonably ideal circumstances of a shared democratic
tradition establish ‘the conditions of the possibility of a reasonable public basis for of
justification on fundamental political questions.’ (Rawls 1993, p. xix ). Assuming our world
fails to satisfy principles of ideal justice generally, and not merely regarding climate change,
we should expect political debate about nonideal theory to be doubly and deeply
controversial.
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The accumulation of CO2 in the atmosphere and the release of methane from arctic
stores will not wait until we have achieved agreement about matters of ideal justice and
political processes have then settled debates about the appropriate means for achieving the
ideal. These considerations suggest the lack of practicality of the project of developing a
nonideal account of justice for climate change. However, one recent account of the
importance of ideal theory stresses its role in orienting our moral judgments in nonideal
circumstances: ‘To dive into nonideal theory without an ideal theory in hand is simply to dive
blind, to allow irrational free rein to the mere conviction of injustice and to eagerness for
change of any sort.’ (Simmons 2010, p. 34) If it is impractical to proceed by employing the
team of ideal and nonideal theory to justify climate change mitigation, are we left only with
giving “irrational free rein to the mere conviction of injustice”? Over the next four sections, I
shall argue that we are not.
International Paretianism
Eric A. Posner and David Weisbach defend their account of International Paretianism
with urgency explicitly in mind. Indeed, the urgency of mitigation leads them to reject treaty
proposals that include international redistribution. ‘The greater the risk of catastrophe, the
more important it is to choose the most effective climate policy. By tying the two issues
[international redistribution and effective mitigation] together we risk hurting both goals.’
(Posner and Weisbach 2010, p. 74). This seems broadly consistent with my argument against
nonideal theory in the previous section. But Posner and Weisbach’s recommendation to guide
climate change mitigation policy by a measure of efficiency, International Paretianism, to the
exclusion of other considerations is misguided.
International Paretianism is a conceptual descendent of the efficiency criterion of
Pareto optimality, according to which a distribution is more efficient than another if at least
one person in the former is better off than in the latter and no one is worse off. International
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Paretianism is satisfied if and only if all states ‘believe themselves better off by their lights as
a result of the climate treaty.’ (Posner and Weisbach 2010, p. 6) This is both more demanding
than Pareto optimality and less so. More demanding insofar as the improvement must be for
all states, not merely one, but less demanding because it is belief- rather than fact-sensitive.
States need not in fact be better off as a result of the climate treaty, in order for the treaty to
satisfy the International Paretianism; they must merely believe themselves to be. This beliefsensitive concept is odd in discussions of efficiency since the requirement that an agreement
satisfy International Paretianism does not ensure that resources will in fact be used in a
manner that is less wasteful.
Why then do Posner and Weisbach employ a belief-sensitive concept of efficiency? If
states were assumed to have perfect knowledge there would be no misfit between belief and
reality. But that seems an heroic assumption when we are forecasting about the future. The
belief-sensitive concept seems less odd if the primary advantage of International Paretianism
is supposed to be its feasibility. Because a climate change treaty is urgent, perhaps
considerations of feasibility trump. A treaty that each state believes makes it better off is
especially attractive because as they put it, ‘[H]istory supplies very few cases where states act
against their own perceived interests in order to satisfy the moral claims of other states.’
(Posner and Weisbach 2010, p. 6) A requirement that a treaty be believed to be in the interests
of all states better serves the demands of feasibility than a requirement that a treaty in fact be
in the interests of all states, because if states invariably act only on their perceived interests
then their actual interests are important only insofar as they are also perceived to be their
interests. Perhaps we can reasonably assume that many states—at least those wealthy enough
to employ a sophisticated team of researchers and negotiators—will more or less correctly
identify the treaty proposals that are in their actual interests. Nonetheless, the important matter
for feasibility is that states believe the treaty to be in their interests, regardless of whether it
really is.
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Whether a treaty would be thought to benefit a state depends both upon the baseline
against which the situation of the state under treaty is compared and upon the measure of
benefit. Posner and Weisbach claim that mitigation is a feasible goal because ‘the benefits
from reducing emissions exceed the costs.’ (Posner and Weisbach 2010, p. 179) This suggests
the baseline is some business-as-usual scenario, in other words the absence of a
comprehensive mitigation treaty. And insofar as Posner and Weisbach construe their project
as a welfarist one along the lines of standard economic analyses, they usually seem to be
measuring benefits in terms of GDP, although they are not entirely clear about this (Posner
and Weisbach 2010, p. 6).4 The idea seems to be then to be the plausible one that beyond a
certain threshold of warming the combined effects of climatic perturbations and political
disruptions are likely to produce high costs to the GDP of all states; and a climate change
mitigation treaty can reduce these costs in aggregate. Diplomatic art should then be directed to
persuading each state that there is a version of the distribution of the costs according to which
it would fare better than under a plausible business-as-usual scenario. Perhaps the effort of
persuasion is made easier if it is true for each state that it would fare better, but once again
that is, strictly speaking, beside the point.
Posner and Weisbach are not morally indifferent to global poverty. They believe it to
be a serious injustice (Posner and Weisbach 2010, p. 74). But they reject additional or
alternative constraints on a mitigation treaty, including one that would recognize the right to
sustainable development. Poverty eradication, it should be noted, is an energy intensive
project. By putting a price on carbon a mitigation treaty could increase energy costs to
developing and least developed states such that eradication of energy poverty, and therefore
poverty generally, would be slowed or reversed. It is not inconceivable that a poor state might
believe it would be better off under a treaty that slowed or reversed poverty eradication if due
to its vulnerability to climate change the business-as-usual scenario were exceedingly grim.
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The lack of concern about energy poverty and a fair global system of energy
consumption, however, undermine the moral credibility of Posner and Weisbach’s account.
We can appreciate this by imaging two different treaty choice situations.
Situation One: There is a choice between on the one hand a treaty mitigating
change by satisfying International Paretianism and raising energy prices for
millions of poor people in poor states5 and on the other hand a treaty mitigating
climate change by satisfying International Paretianism and not raising energy
prices in poor states where energy poverty is severe.
Posner and Weisbach’s account is indifferent between these two alternatives. But that seems
unreasonable. Moreover if, as Posner and Weisbach accept, global poverty is unjust, then an
account should not be indifferent between alternatives that are identical except that one
secures continued progress in eradicating poverty and the other does not.
Situation Two: There is a choice between on the one hand a treaty mitigating
climate change by satisfying International Paretianism and raising the energy
prices for millions of people in poor states and on the other hand a treaty
mitigating climate change, which only one state believes won’t advance its GDP,
but which would not raise energy prices for millions of people in poor states.
Posner and Weisbach’s account would rank the treaty satisfying International Paretianism
over the one providing access to energy for the poor because there is a single state that
believed the latter would not sufficiently promote its GDP. Hence, ensuring that a single state
believes its GDP would be promoted is more important than providing energy access to
millions of poor people according to their account. That also is unreasonable.
The only available defense of these rankings is to appeal to the unique feasibility of
International Paretianism and the overriding importance of feasibility in conditions of
urgency. But an appeal to the unique feasibility of International Paretianism is implausible. In
Situation Two the rejection of the alternative that would not raise energy prices in poor states
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in order to ensure that one additional state has the choice that it believes would promote its
GDP is not recommended on grounds of feasibility. Many of those states whose poor
populations would be consigned to energy poverty by the second treaty would reject that
treaty, and would do so on morally commendable grounds, indeed on grounds that Posner and
Weisbach would otherwise endorse. In light of such a rejection it is implausible that
considerations of feasibility recommend that choice. It would seem at least as feasible either
to pursue diplomatic efforts to compel the single state to sign the treaty or to proceed with a
multi-lateral treaty without that state.
It is not entirely clear whether Posner and Weisbach take the feasibility of a treaty to
be determined solely by beliefs about benefit measured in terms of GDP growth, but as a
general matter it seems doubtful that a state’s self-interest should be so narrowly perceived. A
broader conception of interest seems warranted insofar as states have other self-regarding
reasons to sign treaties, including reputational reasons. In Situation Two, the single state that
believes that the mitigation treaty (that would not raise energy prices in poor states) would not
improve its GDP might nonetheless have sufficient reputational reasons to support the treaty.
Or that same state might take itself to benefit from supporting the treaty if rejecting it would
lead to countermeasures in the negotiation of other treaties or under other international
regimes.6 Reputational and indirect effects suggest that a conception of benefit broader than
mere GDP improvement is warranted. Moreover, state leaders may find themselves under
pressure to respond to a citizenry that is motivated by moral reasons to accept a treaty that
cannot be justified merely by appeal to self-regarding reasons.7 In the next section I defend
two such moral reasons, the promissory obligation that follows from ratifying the UNFCCC,
and fairness in access to energy resources, which is protected by the right to sustainable
development.
The UNFCCC Norm of the Right to Sustainable Development
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The UNFCCC entered into force in 1994. Currently there are 196 parties to the treaty.
They have agreed to stabilize atmospheric concentrations of greenhouse gases ‘at a level that
would prevent dangerous anthropogenic interference with the climate system.’ (Art. 2) The
treaty is a piece of soft international law. It neither establishes a schedule for mitigation, nor
provides a mechanism for holding states accountable. Instead, it establishes a number of
background norms to guide further deliberation in pursuit of an agreement about how to
‘prevent dangerous anthropogenic interference with the climate system.’ Treaty ratification is
a formal deliberative process that is not taken lightly in most states and should be taken as
reflective endorsement of the terms of the treaty. In the present case, agreement to the treaty is
agreement to pursue the objective of mitigation diplomatically within the constraints of the
treaty’s norms. Additional agreements are necessary, and the treaty’s norms constrain the
content of those agreements. In light of the present discussion, Article 3 is particularly
important because it recognizes the importance of economic development and affirms that,
‘The Parties have a right to, and should, promote sustainable development.’ The Preamble
understands that in order to promote sustainable development, ‘developing countries need
access to resources required to achieve sustainable social and economic development and that,
in order for developing countries to progress towards that goal, their energy consumption will
need to grow.’
Respecting the right to sustainable development constrains acceptable additional
agreements. A sustainable international energy regime requires a rapid transition away from
fossil fuel consumption. But poverty-eradicating human development requires energy.
Underdeveloped countries must increase their energy use substantially to achieve such
development. Hence, there are two constraints on an international agreement consistent with
the norms of the UNFCCC. It must prescribe rapid global reductions in CO2 emissions and it
must not disrupt access to inexpensive sources of energy for underdeveloped states.
Within the UNFCCC deliberative context there are two moral justifications for the
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constraint that additional agreements must respect the right to sustainable development. The
first is based upon the promissory obligation that states have assumed in virtue of the prior
agreement to the treaty, which recognizes the right to sustainable development (Moellendorf
2014). States have agreed to constrain further deliberations by recognition of this right. In
doing so, every state has a reasonable expectation that every other will so constrain their
deliberations. Knowingly offering proposals that are inconsistent with that norm is
disrespectful of others parties and expresses contempt for the process of finding agreement in
the context governed by the treaty.
The second moral justification for the right to sustainable development within the
UNFCCC deliberative context is based on considerations of fairness. An effective
international mitigation treaty is a cooperative practice in pursuit of a morally obligatory goal.
Such a treaty would constrain energy consumption by reducing permissible consumption of
fossil fuels. Given the necessity of energy consumption to the morally commendable project
of eradicating poverty, it is important that the constraints on energy consumption be fair. Fair
cooperation prohibits some people suffering morally grave burdens in order that others not
suffer comparatively minor moral ones. An international treaty that would raise energy prices
for poor states would burden its citizens with continued energy poverty and therefore lay a
great moral burden on them. Alternatively, deep reductions in emissions can be carried out by
wealthy states at comparatively minor transitional costs. The right to sustainable development
directs the costs of mitigation in such a way that poor states are not hindered in the pursuit of
poverty-eradicating development. It therefore ensures fairness in the distribution of the costs
of the mitigation project.
Neither of the two arguments on behalf of the right to sustainable development is an
instance of Rawlsian nonideal theory. Neither makes reference to an ideal theory of justice,
the realization of which would be facilitated by recognizing the right to sustainable
development. Of course, any plausible ideal theory of international justice would require
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states to honour treaties. But the moral force of a promissory obligation is what constrains the
plausibility of the account of international justice; the obligation is not derived from an ideal
theory of global or international justice. This is also the case with respect to the norm of
fairness appealed to in the second argument. An ideal theory of global or international justice
might incorporate an account of fairness to justify the principles that it defends. But the
second argument has not been made in reference to principles of ideal justice. We have
convictions about fairness, convictions about which we are reasonably confident prior to ideal
theories of justice and which we employ to assess attempts at ideal theory. The second
argument rests on one such principle. In the present context of urgency and deep disagreement
about ideal theory, the independence of the two arguments from ideal theory is a virtue. This
is not by any means to argue that ideal theory serves no important moral purpose.
It is noteworthy, however, that both of these two arguments are plausibly moral
justifications in the sense that Rawls understands justification. The idea of a moral
justification is much broader than an ideal theory of justice. A justification is a manner of
arguing about moral claims. Rawls distinguishes proofs from justifications by adding the
requirement to the latter that the premises be acceptable to the audience to whom the
argument is made (Rawls 1991, p. 508). The first of the two arguments appeals to a
promissory obligation to respect a prior agreement about norms. The second appeals to a
conviction about fairness, namely that in a cooperative framework some should not suffer
grave moral burdens to prevent relative minor burdens to others. The first argument is a
justification in the relevant sense since the moral weight is carried by appeal to promissory
obligations, which are widely accepted. The second is plausibly a justification since the
appeal to burden-sharing is based on a widely held conviction about fairness, and not on an
appeal to controversial accounts of global and intergenerational justice. To the extent that one
or the other of these arguments is a justification in the Rawlsian sense and to the extent that
my argument against the application of a Rawlsian kind of nonideal theory is plausible, then
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surprisingly in order to mount a Rawlsian type of justification for urgent climate change
mitigation, one has to abandon the project of Rawlsian nonideal theory.
A Criticism of the Right to Sustainable Development
Posner and Weisbach explicitly reject the right to sustainable development as
redistributivist. This charge of redistribritutivism seems directed to the feasibility of a treaty
proposal that contains a commitment to the right to sustainable development, namely if such a
treaty requires redistributing resources from one state to another, the former state will reject it
on grounds that there is an alternative non-redistributive possibility that is better for its GDP.
In response to the criticism of the right to sustainable development I maintain that it is
not necessarily redistributivist, and that the greater feasibility of International Paretianism is
highly doubtful. To appreciate why satisfying the right to sustainable development need not
be redistributivist, recall Situation One discussed in a previous section. In that case there is a
choice between two treaties both satisfying International Paretianism and one of the two also
satisfying the right to sustainable development. Let’s specify the situation in greater detail.
Situation One Further Specified: There are only two states. A business as usual
scenario would leave Rich State with a GDP of 10, Poor State has a GDP of 3.
Treaty One would leave Rich State with a GDP of 15 and Poor Sate with a GDP
of 4. Treaty Two, which satisfies the right to sustainable development, would
leave Rich State with a GDP of 12 and Poor State with a GDP of 7.
Under Treaty Two are the gains for Poor State the product of redistribution from Rich State?
Posner and Weisbach list several sufficient conditions of redistribution; and two of them may
be applicable to this case. First, redistribution from a rich to a poor state occurs if the rich
state is held to stricter mitigation requirements than the poor one. Second, redistribution from
a rich state to a poor one occurs if the treaty better serves the interests of the poor state than
the rich one (Posner and Weisbach 2010, p. 80).
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Posner and Weisbach’s two conditions, however, seem insufficient to identify cases of
redistribution. Some forms of progressive taxation redistribute from the wealthy to the poor
by, for example, supplying income support for the latter. Other forms of progressive taxation
simply fund public goods without redistributing to the poor. If a wealthy person pays income
tax at higher rate than a poor one, with the proceeds going to finance something for the
benefit of both, for example public roads, that is not a case of redistribution from the rich
person to the poor person. The concept of redistribution requires some transfer in holdings
from one party to another. This is, as it were, the “re-” in redistribution. In Situation One
Further Specified the two states each seem to have different growth trajectories in the two
treaty scenarios. In one instance the rich state does better, in the other the poor state does
better. If the gains of Poor State in Treaty Two are the product of redistribution from Rich
State, then the gains of Rich State in Treaty One must be the result of redistribution from Poor
State. But neither case is necessarily redistributivist. Differing growth trajectories of the two
treaties could be the result of different energy policies leading to differences in wealth
creation. The wealth in that case is not transferred from one state to another by the mitigation
treaty because it did not exist prior to the growth. If the wealth gained was not ex ante in
either state, then it was not taken from one to add to the GDP of the other. In that case, neither
Treaty One nor Treaty Two is redistributive.
Perhaps I am wrong about what the concept of redistribution requires. Maybe it does
not require transferring pre-existing holdings from one party to give to another. Posner and
Weisbach claim that a climate change treaty in which the poor benefit more than is required
by International Paretianism is redistributivist (Posner and Weisbach 2010, p. 83). To state the
idea in neutral terms perhaps a policy is redistributive between parties if, although it benefits
both, it results in greater benefits to one party than an alternative would. In that case both
Treaty One and Treaty Two are redistributive in comparison to the other. Treaty One
redistributes for the benefit of Rich State and Treaty Two for the benefit of Poor State. In that
19
case there is no policy that is uniquely redistributive and the charge of a policy being
redistributive loses its bite.
It is also not the case that a treaty that satisfies the right to sustainable development is
necessarily less feasible than one that satisfies International Paretianism. If the treaty
satisfying the right to sustainable development also satisfies International Paretianism, as in
Situation One, then it is not less feasible even by Posner and Weisbach’s lights. But even if
the treaty does not satisfy International Paretianism, it may be no less feasible because, as the
discussion above of Situation Two indicates, there might be other self-regarding reasons that
lead a state to accept the treaty that does not satisfy International Paretianism. Moreover, the
discussion of Situation Two also suggests that in circumstances in which satisfying
International Paretianism requires raising energy prices in poor states and thereby threatening
the right to sustainable development, there is no reason to think that International Paretianism
will be endorsed by poor states. In that case, International Paretianism has no feasibility
advantage.
Making the Norms Stickier
An earlier section presented two moral arguments for adhering to the UNFCCC’s
norm of respecting a state’s right to sustainable development, one based on promissory
obligations, the other based on fairness. In this section I present a third argument appealing to
the significant good of the continued existence of the treaty as a robust source of norms. I also
offer a final prudential consideration that weighs against pushing proposals that contravene
UNFCCC norms.
Background norms have tremendous pragmatic importance for subsequent
deliberation. By constraining acceptable agreements to those consistent with the norms, they
also constrain acceptable proposals by ruling out proposals inconsistent with accepted
background norms. By narrowing the range of acceptable proposals, background norms serve
20
the pragmatic goal of facilitating agreement in a timely fashion. Proposals that are patently
inconsistent with background norms can be rejected without thoroughgoing debates of their
merits. That saves both time and the acrimony of having to address certain proposal on their
merits. For proposals that do not patently contradict background norms, discussion that
subsequently reveals such a contradiction provides the basis for rejecting the proposal without
extensive normative wrangling and negotiation. Background rules then serve to focus debates
and thereby also to conserve the sometimes scarce resource of diplomatic good will.
Attempting to negotiate outside of a framework of existing background rules would
involve huge time costs. And reconstructing a new normative framework to structure
discussions is no easy task. As Robert O. Keohane observes, ‘International regimes are easier
to maintain than to construct.’ (Keohane 1984, p. 102) The UNFCCC can be seen then as a
kind of institutional sunk cost in the negotiation process (Keohane 1984, p. 102). It is difficult
to envisage the circumstance in which it would be rational—assuming the aim of a
comprehensive mitigation project—to start all over again, all the more so given the urgency of
reaching an agreement. Unless negotiations were between parties with closely shared
understandings of the normative dimensions of the problem of climate change, to start
negotiations disavowing UNFCCC norms is to invite either re-negotiating background norms
or discussing the merits of a much broader array of proposals—including for example,
International Paretianism—than would be acceptable within the UNFCCC context. Neither of
these is desirable given the urgency of reaching an agreement.
The UNFCCC does not provide for legal sanction to a party that violates its norms by,
say, insisting on a mitigation treaty that is inconsistent with them. Absent legal sanctions, any
sanction for a state contravening the norms of the UNFCCC would be informal, such as
condemnation or diplomatic consequences for other matters important to the state.8 The status
of the principles in the treaty as norms is then heavily contingent on their continued voluntary
observance and informal enforcement. Their normative force consists in their stickiness.
21
Given the relative youth of the treaty and the lack of success thus far of negotiating a
comprehensive and effective mitigation agreement under its auspices, the status of UNFCCC
principles as norms is relatively precarious. In light of the general good served by having the
system of background norms in place, states have reason not to proffer proposals that would
exacerbate the precariousness of the norms.
Many states may also have a self-regarding reason not to offer a proposal that would
contravene UNFCCC norms. Any treaty proposal that contravenes the norms of the UNFCCC
threatens to weaken the overall normative structure of the treaty. In this regard there are
additional costs to proposals that a state motivated only by self-regarding interests should
consider. If it is the case that the existence of a structure of background norms reduces the
costs of negotiation for all parties by narrowing the range of acceptable proposals and by
providing the basis for procedural reasons for rejecting those proposals that contravene the
norms, then any state that would erode the structure of background norms has to reckon with
whether the sum of the reputational costs to it and the costs incurred by loss of the
background structure are outweighed by the benefits of succeeding in pushing through a
proposal. There is no reason to suppose that there is an a priori answer to what the weighing
would recommend. But unless a state has good reason to be especially confident about
pushing its proposal over the short term, and unless it is powerful enough to mitigate the long
term reputational damage and to pursue its interests over the long term in an international
arena characterized by less cooperation and greater suspicion, the result of the weighing
would seem favour not eroding the norm. For very powerful states it might be rational to
erode the normative framework of a background agreement, but then only if its interests can
be served without a treaty arising within that agreement. Since unmitigated climate change is
likely eventually to affect all states severely, it is likely to prove irrational to erode the norms
of the UNFCCC. Adhering to its norms serves both the general good and very likely also each
state’s long term good.
22
Recapping
A nonideal theory as Rawls understands it is highly unlikely to be the object of
widespread agreement among state parties within the time-frame necessary for negotiating an
effective climate change agreement. It does not follow from this that moral considerations
should be abandoned altogether in favour of International Paretianism. The indifference of
that view to the grave problems of energy poverty and underdevelopment generally renders it
implausible. Moreover, International Paretianism is not necessarily more feasible than an
account that seeks to reduce energy poverty. In contrast, the norms of the UNFCCC, including
the right to sustainable development, are appealing. Several considerations count in favour of
adhering to them. Parties to the treaty have a promissory obligation to honour them. Fairness
seems to require accepting the right to sustainable development within the context of
distributing access to energy and extant energy poverty. The normative framework of the
treaty serves the general good of facilitating agreement. And finally for any given state the
costs of contravening the norms might be very high over the long run. If these arguments are
plausible, there are very good reasons to take the norms of the UNFCCC seriously.
23
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24
1
An earlier version of this paper was presented at Sciences Po, Paris. I would like to thank the
audience for their helpful comments. I would also like to thank Daniel Callies, Clare
Heyward, Merten Reglitz, and Dominic Roser for their helpful feedback.
2
See also Simmons 2010, p. 22: ‘A good policy in nonideal theory is good only as
transitionally just—that is, only as a morally permissible part of a feasible overall program to
achieve perfect justice, as a policy that puts us in an improved position to reach that ultimate
goal. And good policies are good not relative to the elimination of any particular, targeted
injustices, but only relative to the integrated goal of eliminating all injustice.’
3
Simon Caney rejects what he calls methods of isolation on similar grounds. See Caney 2012,
p. 271.
4
But see also p. 179 where they state claim it can be in the interests of states satisfy the
altruism of their citizens. This, however, confounds their account since the argument against
redistribution is then only successful to the extent that citizens do not stand by the claim that
satisfying citizens’ altruism can be in the interests of states. .
5
Because GDP is an aggregate measure, an improvement in GDP is consistent with a class of
poor people faring worse.
6
Compare to Abbot and Snidal, 2000, p. 30: ‘[P]articipation in other international legal
regimes should enhance credibility: it exposes states to greater reputational costs and makes
them more vulnerable to countermeasures.’ I claim that refusal to participate may also have
reputational costs and make states vulnerable to countermeasures.
7
Posner and Weisbach are also aware of this possibility. See Climate Change Justice, p. 185.
8
See Roberts and Parks 2007, p. 223: ‘It is also worth pointing out that abrogation of a widely
accepted principle in one regime can be exceedingly, even prohibitively costly if that action
25
makes a country look like an outlaw in other regimes that use that same principle as an
international focal point.’