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Cosmopolitan Justice, Rights and Global Climate Change

Published online by Cambridge University Press:  20 July 2015

Simon Caney
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The paper has the following structure. In Section I, I introduce some important methodological preliminaries by asking: How should one reason about global environmental justice in general and global climate change in particular? Section II introduces the key normative argument; it argues that global climate change damages some fundamental human interests and results in a state of affairs in which the rights of many are unprotected: as such it is unjust. Section III addresses the complexities that arise from the fact that some of the ill effects of global climate change will fall on the members of future generations. Section IV shows that some prevailing approaches are unable to deal satisfactorily with the challenges posed by global climate change. If the argument of this paper is correct, it follows that those who contribute to global climate change through high emissions are guilty of human rights violations and they should be condemned as such.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 19 , Issue 2 , July 2006 , pp. 255 - 278
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Copyright © Canadian Journal of Law and Jurisprudence 2006

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References

1. I thank the Arts and Humanities Research Council for supporting this research. I am grateful also to Edward Page for illuminating discussions on issues examined here.

2. Ahmad, Q.K. et al., ‘Summary for Policymakers’ in McCarthy, , Canziani, , Leary, , Dokken, & White, , eds., Climate Change 2001: Impacts, Adaptation, and Vulnerability—Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2001) at 3.Google Scholar

3. For a similar methodological precept, see Barry, Brian, ‘Sustainability and Inter-generational Justice’ in Dobsons, Andrew, ed., Fairness and Futurity: Essays on Environmental Sustainability and Social Justice (Oxford: Oxford University Press, 1999) at 93–94, cf. at 96–100.CrossRefGoogle Scholar

4. This term comes from Rawls. See John Rawls, , ‘The Law of Peoples’ in Freeman, Samuel, ed., Collected Papers (Cambridge, MA: Harvard University Press, 1999) at 531 Google Scholar and Rawls, John, Political Liberalism (New York: Columbia University Press, 1993) at 20-21Google Scholar. Rawls mentions four problems of extension, namely the challenge of extending his theory to deal with the international domain, future generations, those who are sick, and non-human animals and the natural world, ‘The Law of Peoples’ at 531. See also Rawls’s discussion of constructivism and the problems of extension in ‘The Law of Peoples’ at 531-33.

5. Rawls, John, Justice as Fairness: A Restatement, ed. by Kelly, Erin (Cambridge, MA: Harvard University Press, 2001) at 57–61, 168-76.Google Scholar

6. See Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000) at 11–64 Google Scholar (on welfare) and 65-119 (on resources). For an alternative view, see Cohen, G. A., ‘On the Currency of Egalitarian Justice’ (1989) 99 Ethics 906 CrossRefGoogle Scholar. For an analysis of these different metrics as they bear on climate change see Page, Edward, Climate Change, Justice and Future Generations (Cheltenham, UK: Edward Elgar, 2006) at ch. 3.CrossRefGoogle Scholar

7. Houghton, Sir John, Global Warming: The Complete Briefing, 3rd ed. (Cambridge: Cambridge University Press, 2004) at 150.CrossRefGoogle Scholar

8. Ibid. at 150-51. Note also that as well as losing land to the sea, the remaining land will be exposed to greater risks from “storm surges” and will be ruined by saline intrusion (ibid. at 151-52).

9. For more on this see Smith, Joel B., Schellnhuber, Hans-Joachim & Monirul, M. Mirza, Qader, ‘Chapter 19: Vulnerability to Climate Change and Reasons for Concern: A Synthesis’ in McCarthy, , et al., supra note 2 at 916, 940-41, 957-58Google Scholar; Thomas, David S. G. & Twyman, Chasca, ‘Equity and Justice in Climate Change Adaptation Amongst Natural-Resource-Dependent Societies’ (2005) 15:2 Global Environmental Change 115 CrossRefGoogle Scholar; and Tol, Richard S.J., Downing, Thomas E., Kuik, Onno J. & Smith, Joel B., ‘Distributional Aspects of Climate Change Impacts’ (2004) 14:3 Global Environmental Change 259 CrossRefGoogle Scholar. For further discussion see Page, supra note 6 at 35.

10. Watson, Robert T. et al., ‘Summary for Policymakers’ in Watson, Robert T. & the Core Writing Team, Climate Change 2001: Synthesis Report: Contribution of Working Groups I, II and III to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2001) 29.Google Scholar Note that the first linkage differs from the second two, for the first points out the way in which the two goals are positively linked (mitigating climate change is needed to protect the interests of the future poor) whereas the last two points show how the two ideals compete. We should also note, in this context, that the first point is primarily about how solving climate change threatens the interest of the future poor whereas the emphasis of the second and third points are on how the interests of the existing global poor are in tension with attempts to deal with global climate change.

11. See Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at ch. 7 in general and 166 in particular.Google Scholar

12. Rawls, John, Political Liberalism, supra note 4 at 74ff, 106.Google Scholar

13. Ahmad et al., supra note 2 at 3.

14. Supra note 7 at 150-51.

15. Mclean, R.F. & Tsyban, Alla, ‘Chapter 6: Coastal Zones and Marine Ecosystems’ in McCarthy, et al., supra note 2 at 367.Google Scholar

16. Houghton, supra note 7 at 152. Houghton also notes that the ill-effects would also be felt by those living on China’s east coast. For example a 0.5 metre increase in the sea level would result in flooding to 40,000 km2, thereby adversely affecting the lives of 30 million people, ibid.

17. Smith, et al., ‘Chapter 19: Vulnerability to Climate Change and Reasons for Concern: A Synthesis’ in McCarthy, et al., supra note 2 at 935.Google Scholar

18. Houghton, supra note 7 at 153.

19. Smith et al., supra note 17.

20. Mclean & Tsyban, supra note 15 at 366-67. I have omitted an internal reference from the text quoted.

21. Patz, Jonathan A., Campbell-Lendrum, Diarmid, Holloway, Tracey & Foley, Jonathan A., ‘Impact of regional climate change on human health’ (Nov. 2005) 438:7066 Nature 310.CrossRefGoogle Scholar

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23. Hare, Bill, ‘Relationship between Increases in Global Mean Temperature and Impacts on Ecosystems, Food Production, Water and Socio-economic Systems’ in Schellnhuber, , Cramer, , Nakicenovic, , Wigley, & Yohe, , eds., Avoiding Dangerous Climate Change (Cambridge: Cambridge University Press, 2006) at 179.Google Scholar

24. Milly, et al., ‘Global pattern of trends in streamflow and water availability in a changing climate’, supra note 22 at 347.

25. McMichael, Anthony & Githeko, Andrew, ‘Chapter 9: Human Health’ in McCarthy, et al., supra note 2 at 466 Google Scholar. The authors note, however, that those at further risk are primarily inhabitants of wealthy countries and so are unlikely to become infected. For their full analysis see 463-67.

26. See Maslin, Mark, Global Warming: A Very Short Introduction (Oxford: Oxford University Press, 2004) at 96 Google Scholar and Jonathan A. Patz et al., ‘Impact of regional climate change on human health’, supra note 21 at 313.

27. See McMichael & Githeko, ‘Chapter 9: Human Health’ at 457-58; see also Houghton, supra note 7 at 177-78.

28. We should, of course, note that some question the scientific orthodoxy on global climate change. One well-known sceptic is Lomborg, Bjørn, The Skeptical Environmentalist: Measuring the Real State of the World (Cambridge: Cambridge University Press, 2001) at ch. 24CrossRefGoogle Scholar. More recently a fairly sceptical position was ex Pressed in the recent report of the House of Lords Select Committee on Economic Affairs—The Economics of Climate Change Report, vol. 1, the second report of Session 2005-06 (London: the Stationery Office, 6 July 2005) published by the Authority of the House of Lords, HL Paper 12-I.

29. Of course, someone might respond that even if the two sets of interests clash this does not entail that there is not a human right not to suffer from climate change. She might allow that there can be conflicting rights. In this vein she might hold both that the interests adduced in support of premise (2) justify a right not to suffer from dangerous climate change and that the interests mentioned earlier in this paragraph justify a right to activities which generate high levels of greenhouse gas emissions. So the competing interests justify competing rights. This might save the idea that there is a prima facie right not to suffer from climate change but it is small solace if, all things considered, the right to engage in activities which issue high levels of GHGs always takes priority.

30. See the instructive discussion in Shue, Henry, ‘Subsistence Emissions and Luxury Emissions’ (1993) 15:1 L. & Policy 39.Google Scholar

31. For a denial that future persons have rights, see Beckerman, Wilfred & Pasek, Joanna, Justice, Posterity, and the Environment (Oxford: Oxford University Press, 2001) at 11–28 CrossRefGoogle Scholar. See also Macklin, Ruth, ‘Can Future Generations Correctly be Said to Have Rights?’Google Scholar and De George, Robert T., ‘The Environment, Rights, and Future Generations’ both in Partridge, Ernest, ed., Responsibilities to Future Generations: Environmental Ethics (Buffalo, NY: Prometheus Books, 1981).Google Scholar

32. McMichael, Anthony J. et al., ‘Chapter 20: Global Climate Change’ in Ezzati, , Lopez, , Rodgers, & Murray, , eds., Comparative Quantification of Health Risks: Global and Regional Burden of Disease Attribution to Selected Major Risk Factors (Geneva: World Health Organization, 2004) at 1606.Google Scholar This report has full discussions of climate change induced effects on heat stress, diarrhoea, malnutrition, extreme weather events and vector borne diseases (at 1562-1605).

33. A similar (though different) strategy is taken by Page in his recent book on climate change. He begins by setting out the case for thinking that anthropogenic climate change that damages the well-being of future people is unjust and then considers counter-arguments which claim that persons lack obligations to future people. See Climate Change, Justice and Future Generations, supra note 6, esp. ch. 5 and 6. Page’s initial argument for the injustice of climate change is as follows: (P1) “the changes in the climate system that are being brought about by human action threaten the well-being of members of future generations”; (P2) “human action that threatens the well-being of members of future generations is unjust and unethical”; therefore, (P3) “the changes in the climate system that are being brought about by human action are unjust and unethical”, ibid., ch. 1 at 9. After the word ‘ethical’, there is a footnote (footnote 40) which attributes this argument to a number of other thinkers.

I am in broad agreement with this argument (which Page terms the “Inter-generational Responsibility Argument” at 9) but note three differences between it and the argument mounted here. First, the Inter-generational Responsibility Argument (IRA) does not invoke the rights of future people, whereas that is a key element in the argument given in Section II. (cf. Page’s discussion of the rights of future people in Climate Change, Justice and Future Generations at 142-50). Second the IRA argues that threatening the well-being of future people is unjust without examining how onerous that requirement might be on earlier generations, whereas that is a key element of the argument of Section II. Third, the IRA, as presented here, limits itself to “the changes in the climate system that are being brought about by human action” (ibid. at 9, my emphasis), whereas my argument in Section II applies to all dangerous climate change whether anthropogenic or not.

34. Feinberg, Joel, ‘The Rights of Animals and Unborn Generations’ in Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton, NJ: Princeton University Press, 1980) at 181, cf. esp. at 180-83CrossRefGoogle Scholar. See, further, the illuminating treatments by Elliott, Robert, ‘The Rights of Future People’ (1989) 6:2 J. Applied Phil. at 159–69 CrossRefGoogle Scholar, and Meyer, Lukas H., ‘Past and Future: The Case for a Threshold Notion of Harm’ in Meyer, , Paulson, & Pogge, , eds., Rights, Culture, and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (Oxford: Oxford University Press, 2003) at 143-59CrossRefGoogle Scholar.

35. For an earlier application of this kind of methodological framework (in the context of an analysis of global justice), see Caney, Simon, ‘Cosmopolitan Justice and Equalizing Opportunities’ (2001) 32:1/2 Metaphilosophy at 118 CrossRefGoogle Scholar.

36. There are other possibilities. For example, a fourth position would be to hold that some principles apply only in inter-generational contexts and do not apply between contemporaries. (To give one example of this fourth view: Rawls proposes that societies should save a certain amount (the just savings principle) for future generations but there is no analogous duty that they owe to their contemporaries). See his discussion of the “just savings” principle in A Theory of Justice, rev. ed. (Oxford: Oxford University Press, 1999) at 251-58Google Scholar and Justice as Fairness: A Restatement, supra note 5 at 159-60.) We can also conceive of a fifth possibility where this holds that some principles apply both in an intra-generational and in an inter-generational context and that other principles apply only in an inter-generational context and do not apply in an intra-generational context.

37. For good discussion of this potential differentiating feature, see Barry, Brian, ‘Justice Between Generations’ in Liberty and Justice: Essays in Political Theory, vol. 2 (Oxford: Clarendon Press, 1991) at 247-48Google Scholar and Meyer, Lukas, ‘Inter-generational Justice’, The Stanford Encyclopedia of Philosophy (Summer 2003), Zalta, Edward N., ed., URL: http://plato.stanford.edu/archives/sum2003/entries/justice-inter-generational/ Google Scholar, section 1 on ‘How Inter-generational Relations Differ from Relations Among Contemporaries’.

38. For a similar response, see Barry, ‘Justice between Generations’, supra note 37 at 248.

39. See Parfit’s, Derek seminal discussion of the ‘non-identity’ problem: Reasons and Persons (Oxford: Oxford University Press, 1986) at 351-79CrossRefGoogle Scholar.

40. It is essential to note that Parfit accepts this. See, for example, his brilliant analysis of the ‘No Difference View’ in Reasons and Persons, ibid. at 366-71, esp. at 367-69. See also his rejection of a social discount rate, ibid. at 480-86.

41. For reasoning along these lines, see Broome, John, Counting the Cost of Global Warming (Cambridge: White Horse Press, 1992) at 33-34Google Scholar, esp. at 34. Also important in this context is Parfit’s discussion of rights in Reasons and Persons, supra note 39 at 364-66. For an illuminating discussion see Woodward, James ‘The Non-Identity Problem’ (96) 4 Ethics 804.Google Scholar

42. See Caney, Simon, Justice Beyond Borders: A Global Political Theory (Oxford: Oxford University Press, 2005) at chs. 3 and 6.CrossRefGoogle Scholar

43. Sen, A., ‘Rights and Agency’ in Scheffler, Samuel, ed., Consequentialism and its Critics (Oxford: Oxford University Press, 1988) at 199 Google Scholar and, more generally, at 187-203.

44. A similar position is defended by Lukas Meyer. See his defence of what he terms a “subjunctive-threshold” conception of harm in his excellent discussion in ‘Past and Future: The Case for a Threshold Notion of Harm’. Meyer, however, does not utilize Sen’s “goal rights” framework to address the objection under consideration.

45. To use Parfit’s terminology (Reasons and Persons, supra note 39 at 370-71), we could say that the objection Pressed in the text is to a “person-affecting” conception of rights but my position is immune to this because, as a “goal rights” approach, it affirms a non-”person-affecting” conception of rights.

46. This distinctive feature is discussed by Barry, ‘Justice Between Generations’, supra note 37 at 243-47 and Meyer, ‘Inter-generational Justice’, section 1 on ‘How Inter-generational Relations Differ from Relations Among Contemporaries’, supra note 37.

47. See, again, Parfit, supra note 39 at 351-79.

48. It is striking that many discussions of inter-generational justice conceive of it in terms of how one “generation” treats another “generation”. (See, for example, Barry, ‘Justice Between Generations’, supra note 37 at 243-44 and Broome, Counting the Cost of Global Warming, supra note 41 at 32.) If one adopts this way of thinking about inter-generational justice then it would be natural to think that one generation could exert power over another generation.

49. Athanasiou, Tom & Baer, Paul, Dead Heat: Global Justice and Global Warming (New York: Seven Stories Press, 2002) at 73–74 Google Scholar.

50. Fisher, Brendan & Costanza, Robert, ‘Regional Commitment to Reducing Emissions’ (Nov. 2005) 438:7066 Nature 301.CrossRefGoogle ScholarPubMed

51. Nurse, Leonard A. & Sem, Graham, ‘Chapter 17: Small Island States’ in McCarthy, , et al., eds., supra note 2 at 867.Google Scholar

52. The mismatch between who causes the problem and who suffers the consequences is also stressed by Page, supra note 6 at 35-36.

53. Passmore, , Man’s Responsibility for Nature: Ecological Problems and Western Traditions (London: Duckworth, 1974) at ch. 4 esp. at 87-92 and 98–100.Google Scholar

54. See A Theory of Justice (Oxford: Oxford University Press, 1972) at 284-93Google ScholarPubMed. I am referring to the first edition of A Theory of Justice, as opposed to the revised edition, for his account in the revised edition is slightly different from the original. See Rawls, , A Theory of Justice, rev. ed. (Oxford: Oxford University Press, 1999) at 251-58, esp. at 255Google Scholar.

55. Barry, , ‘Justice between Generations’, supra note 37 at 253 Google Scholar. See also Barry, Brian, Theories of Justice: A Treatise on Social Justice, vol. I (Hemel Hempstead: Harvester-Wheatsheaf, 1989) at 190-91Google Scholar. Indeed see, more generally, Barry’s illuminating and perceptive analysis of Rawls’s treatment of inter-generational justice, Theories of Justice at 189-203.

56. See A Theory of Justice, supra note 54 at 292. This is the first edition, not revised.

57. Barry, ‘Justice between Generations’, supra note 37 at 252-53.

58. As Barry notes, Rawls presupposes that inter-generational justice is about saving wealth and capital for future generations (hence the principle of “just savings”), and one distinctive feature of wealth and income is that it is possible to pass them on to the next generation but it is not easy to pass them on to remote generations. Not all issues of inter-generational justice have this character, including environmental burdens, for they can be bequeathed to the next generation and beyond. To conceive of inter-generational justice as an issue of saving thus renders it ill-suited to dealing with some of the problems that afflict remote future generations, Theories of Justice, supra note 55 at 193-94.

59. See Justice as Fairness: A Restatement, supra note 5 at 159-60 and Political Liberalism, supra note 12 at 274. Rawls says that this later view is superior to his treatment in A Theory of Justice on the grounds that, unlike A Theory of Justice, it does not require “changing the motivation assumption”, see Political Liberalism, supra note 12 at 274 n. 12.

60. It is rarely noticed that Rawls does introduce this kind of reasoning even in the first edition of A Theory of Justice. See the discussion at the foot of page 289 which says that the parties in the original position will balance “how much at each stage they would be willing to save for their immediate descendants against what they would feel entitled to claim of their immediate predecessors”. Cf. further A Theory of Justice, supra note 54 at 289-90.

61. Beckerman & Pasek, supra note 31 at 38-39.

62. Rawls, , The Law of Peoples with ‘The Idea of Public Reason Revisited’ (Cambridge, MA: Harvard University Press, 1999).Google Scholar

63. Rawls, ibid. at 37.

64. Ibid. at 65. For Rawls’s analysis of the nature and content of human rights, see ibid. at 65, 79, 80, n. 23.

65. Rawls, ibid. at 65.

66. See Homer-Dixon, Thomas F., ‘On the Threshold: Environmental Changes as Causes of Acute Conflict’ (1991) 16:2 Int’l Security 76 CrossRefGoogle Scholar and ‘Environmental Scarcities and Violent Conflict: Evidence from Cases’ (1994) 19:1 Int’l Security 5.CrossRefGoogle Scholar

67. For a good critical discussion of the ability of Rawls’s The Law of Peoples to deal with global climate change, see Bell, Derek, ‘Environmental Refugees: What Rights? Which Duties?’ (2004) 10:2 Res Publica 135 at 140-46CrossRefGoogle Scholar. Bell focuses on the impact that climate change will have on cultural communities and in particular the fact that some aspects of climate change (like rising sea-levels) will result in environmental refugees. His concern is not with the security problems that this creates so much as the fact that this kind of forced migration involves the destruction of many people’s traditional way of life. Bell also explores the possibility that Rawls can argue that global climate change would make some societies become what Rawls terms “burdened societies”, the point being that Rawls thinks that decent and liberal peoples should assist burdened societies (The Law of Peoples, supra note 62 at 37). This represents an alternative to the Rawlsian argument that I am constructing. For Bell’s critique of this “burdened society”-inspired argument, see ‘Environmental Refugees: What Rights? Which Duties?’, ibid. at 143.

68. See Simon Caney, supra note 42 at 81 and the references cited therein.

69. O’Neill, , Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996) at 100-13CrossRefGoogle Scholar.

70. Ibid. at 105-06, 112-13. I am reminded here of Henry Ford who is reputed to have exclaimed “Why is it when I hire a pair of hands, I get a human being as well”. I came across this while reading Cassif’s, Ofer doctoral thesis, ‘On Nationalism and Democracy: A Marxist Examination’ (Ph.D., LSE, 2006)Google Scholar. The point is akin to O’Neill: through interacting with someone in some way one then acquires duties to that human being.

71. For O’Neill’s account of how her theory treats both future people and foreigners, see supra note 69 at 113-21.

72. Ibid. at 119.

73. Ibid. at 119-20.

74. Note that I do not claim that all orthodox approaches that differ from the one given in Section II fail. See, e.g., Page’s approach, supra note 6.

75. The concept of “moral personality” comes from Rawls, supra note 36 at 442-46.