Analysis of the US Case in Climate Change Negotiations

By Margalioth, Yoram | Chicago Journal of International Law, Winter 2013 | Go to article overview

Analysis of the US Case in Climate Change Negotiations


Margalioth, Yoram, Chicago Journal of International Law


Abstract

I applaud Eric A. Postier and David Weisbach's courage in taking the academically unpopular stand of arguing that the US and other developed countries are not morally required to pay significant amounts of money (or money-equivalents such as emission permits) to developing countries in the context of climate change. I believe their book, may help narrow the gap between developed and developing countries' perceptions of justice on this matter. I differ with them in three respects. First, I think that we should acknowledge the fact that developed countries are unwilling to transfer significant amounts of money (not just in the climate change context) on distributive justice grounds, and adopt a moral theory that is more consistent with reality (but nevertheless requires significant transfers on humanitarian grounds). Second, I find merit in the argument that there is a moral flaw in the US's lack of significant action to reduce its relatively high per capita greenhouse gas emissions in the years after it became general knowledge that dangerous climate change was taking place and that it was anthropogenic. Third, I do not find the fact that developing countries will suffer the harsh consequences of climate change before the developed countries do to give the developed countries moral or bargaining advantage.

Table of Contents

I. Introduction ......................................................................490

II. Distributive Justice ............................................................495

III. Responsibility for Past Emissions ........................................497

A. Collective Responsibility .......................................................497

B. Culpability ..........................................................................498

C. Negligence ..........................................................................500

TV. Differential Vulnerability ......................................................501

V. Conclusion ...........................................................................504

I. INTRODUCTION

Eric A. Posner and David Weisbach's book, Climate Change justice? addresses die greatest obstacle to achieving global cooperation in mitigating climate change: the conflict between developed and developing countries over what constitutes a just allocation of costs.2 Due to their inability to bridge this divide, representatives from 200 countries that participated in the recent round of UN climate-change negotiations in December 2011 in Durban bought some time (though at a huge price, because delay increases mitigation costs). They committed their governments to developing "a protocol, another legal instrument or an agreed outcome with legal force,"3 under the UN Framework Convention on Climate Change (UNFCCC), to reduce greenhouse gas (GHG) emissions as early as possible, but no later than 2015. The parties also agreed that the new global mitigation scheme would take effect no later than 2020.4

The Durban outcome is not a significant achievement because the problems that prevented agreement in December 2011 will prevent any future agreement unless resolved. The agreement reached in Durban had, however, one important aspect: it was the first time that developing countries, most notably China and India, agreed to subject themselves to a global GHG mitigation scheme. This gives some hope that a future global treaty to be negotiated will be efficient, covering the major emitters. GHG mitigation requires global action. There is no sense in acting unilaterally. Emissions reduced by one country can be offset by an increase in emissions elsewhere. And there will be some transfer (known as leakage) of polluting industries to countries that are uncovered by the global mitigation scheme, as well as some increase in consumption, in those countries, of energy from fossil fuels due to the decreased demand for such energy in the covered countries. …

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