Henry Shue

Global Environment and International Inequality

This article suggests that three widely shared commonsense principles of fairness or equity converge upon the same general answer to the question of how the costs of dealing with a global environmental challenge like climate change could be distributed internationally. The first of these principles is that when a party has in the past taken an unfair advantage of others by imposing costs upon them without their consent, those who have been unilaterally put at a disadvantage are entitled to demand that in the future the offending party shoulder burdens that are unequal at least to the extent of the unfair advantage previously taken, in order to restore equality. The second is that, among a number of parties, all of whom are bound to contribute to some common endeavour, the parties who have the most resources normally should contribute the most to the endeavour. The third commonsense principle is that, when a) some people have less than enough for a decent human life, b) other people have more than enough, and c) the total resources available are so great that everyone could have at least enough without preventing some people from still retaining considerably more than others have, it is unfair not to guarantee everyone at least an adequate minimum.

Mental Torture: A Critique of Erasures in U.S. Law

Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering - one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. Our principal aim is to expose the fallacies that underlie the U.S. definition of mental torture: first, a materialist bias that the physical is more real than the mental; second, a substitution trick that defines mental pain or suffering through a narrow set of causes and effects, ignoring the experience itself; third, a forensic fallacy, in which the due process requirements of specificity in criminal law become wrongly identified with defining characteristics of the crime of torture (an understanding that loops back to corrupt the law); and fourth, a mens rea requirement that excludes all mental torture not committed with the sadistic intention of causing long-lasting harm. Our article begins with an analysis of the concept of mental pain and suffering, as well as a factual discussion of U.S. practice. We also examine the legislative history of the definition in U.S. law. We demonstrate that it derives from political concerns that other countries might accuse U.S. law enforcement personnel of torture. We conclude by examining the specific evil of mental torture: the merciless attempt to break down and occupy the personality of the victim.

Face Reality? After You!—A Call for Leadership on Climate Change

In Joseph Hellers comic war novel, Catch-22 , the catch-22 of the title refers to a supposed military regulation that allowed one to be relieved of military service if one was insane, but further provided that no one who realized he would be better off out of military service could possibly be insane. Humanitys so far leaderless approach to dealing with rapidly accelerating climate change embodies a similar, but profoundly tragic, catch-22 that has, among other twists and contradictions, transmuted justice into paralysis.

Limiting the Killing in War: Military Necessity and the St. Petersburg Assumption

This article suggests that the best available normative framework for guiding conduct in war rests on categories that do not echo the terms of an individual rights-based morality, but acknowledge the impossibility of rendering warfare fully morally justified. Avoiding the undue moralization of conduct in war is an imperative for a normative framework that strives to actually give behavioral guidance to combatants, most of whom will inevitably be ignorant of the moral status of the individuals they encounter on the battlefield and will often be uncertain or mistaken about the justice of their own cause. We identify the requirement of military necessity, applied on the basis of what we refer to as the “St. Petersburg assumption”, as the main principle according to which a combatant should act, regardless of which side or in which battlefield encounter she finds herself. This pragmatic normative framework enjoys moral traction for three reasons: first, in the circumstances of war it protects human life to a certain extent; second, it makes no false claims about the moral justification of individual conduct in combat operations; and, third, it fulfills morally important functions of law. However, the criterion of military necessity interpreted on the basis of the St. Petersburg assumption does not directly replicate fundamental moral prescriptions about the preservation of individual rights.

Responsibility to Future Generations and the Technological Transition

I have applied the phrase “the date of the technological transition” to the year in human history in which the accumulated atmospheric total of all GHGs ceases to grow.5 Carbon dioxide from the combustion of fossil fuel is only one GHG, of course, but increases in carbon dioxide have made by far the greatest contribution to the swelling of the total. Perhaps quantities of some other GHGs would even need to continue to grow, perhaps not – this is a murkier realm. But if emissions of carbon dioxide were reduced sufficiently, quantities of other GHGs could, if necessary, increase while total annual emissions of all GHGs declined because carbon dioxide is such a large part of current annual emissions of all GHGs and of annual increases in emissions of all GHGs. Reductions in emissions of carbon dioxide could “make room” for any necessary increases in other GHG emissions.

Mitigation gambles: uncertainty, urgency and the last gamble possible

A rejection by current generations of more ambitious mitigation of carbon emissions inflicts on future generations inherently objectionable risks about which they have no choice. Any gains through savings from less ambitious mitigation, which are relatively minor, would accrue to current generations, and all losses, which are relatively major, would fall on future generations. This mitigation gamble is especially unjustifiable because it imposes a risk of unlimited losses until carbon emissions cease. Ultimate physical collapses remain possible. Much more ominous is prior social collapse from political struggles over conflicting responses to threatened physical collapse. The two most plausible objections to the thesis that less ambitious mitigation is unjustifiable rely, respectively, on the claim that negative emissions will allow a later recovery from a temporary overshoot in emissions and on the claim that ambitious mitigation is incompatible with poverty alleviation that depends on inexpensive fossil fuels. Neither objection stands up. Reliance on negative emissions later instead of ambitious mitigation now permits the passing of tipping points for irreversible change meanwhile, and non-carbon energy is rapidly becoming price competitive in developing countries like India that are committed to poverty alleviation. This article is part of the themed issue ‘The Paris Agreement: understanding the physical and social challenges for a warming world of 1.5°C above pre-industrial levels’.

Historical Responsibility, Harm Prohibition, and Preservation Requirement: Core Practical Convergence on Climate Change

Abstract The purpose of this article is to map the relationships of various moral arguments for action on climate change to each other in a particular case rather than to explore any single argument in depth or to make any abstract claims about the priorities among the arguments themselves. Specifically, it tries to show that “historical responsibility”, that is, responsibility (moral or legal) for past emissions, is very important, although not quite in the way usually argued, but that it is not by itself determinative. Other, independent considerations also greatly matter, although it happens that as a matter of fact all considerations strongly tend to converge towards the same conclusions about which states are responsible to act in order to slow climate change. “Historical responsibility” is shown to involve both contribution to, or causation of, climate change and benefit from climate change. Other factors that play roles in this case are ability to pay, the no-harm principle, and the duty to preserve the physical pre-conditions of human life.

Cascading biases against poorer countries

To the Editor — A recent article by Robiou du Pont et al.1 suggests that wealthier countries (for example, the members of the EU) have made more ‘equitable’ contributions to the Paris goals than poorer countries (such as India and China), with most other developing countries somewhere in between. These results are counter-intuitive, given that developed countries have the majority of the responsibility for the atmospheric build-up of GHGs2 and the majority of the financial wherewithal to help solve the climate problem3, yet their Paris pledges amount to fewer tons of mitigated emissions than developing countries4. The objective of Robiou du Pont and colleagues (to examine multiple equity approaches) is laudable, however, the methodology reflects a selection of approaches that are biased in favour of wealthier, higheremitting countries in three ways. First, the approaches1 selected to represent the IPCC equity categories are skewed by the prominence of ‘grandfathering’ as an allocation principle. Grandfathering, (or the constant emissions ratio1), privileges today’s high-emitting countries when allocating future emission entitlements. Despite acknowledging that grandfathering is criticized on equity grounds, it is chosen to represent one of their five categories because “it is implicitly followed by many of the developed countries”1. This rationale is no basis for including a political position in a survey of equity approaches, and by construction it generates outcomes that favour developed countries. Its consequences can be anticipated: for example, grandfathering gives the EU and United States per capita allocations that are four and nine times higher, respectively, than India, despite India still combating widespread energy poverty, with hundreds of millions of residents without basic energy services5. Exacerbating the problem, grandfathering is introduced into two other approaches (equal per capita and capability)1. While these approaches draw on ethically defensible bases (equality and ability to pay, respectively), the methodology1 dilutes them by means of a gradual transition period from pure grandfathering to the specified equity approach. (This concession cannot be rationalized on the basis of avoiding technically implausible reduction rates, nor economic efficiency, since Robiou du Pont and colleagues analyse transferable emissions allocations rather than physical emissions.) With global emissions declining rapidly towards zero, this slow shift means that nearly half of the remaining carbon budget is grandfathered, rather than being allocated according to the nominal equity principle of each approach. Making grandfathering a central part of three out of the five equity approaches used embeds a bias against poorer and lower-emitting countries. Second, Robiou du Pont et al. present only five of the six categories used by the IPCC, excluding one category based exclusively on the Responsibility Principle — that the largest contributors to global GHG concentrations ought to do the most to reduce global emissions. This exclusion discounts a key principle of the Rio Convention and UN Framework Convention on Climate Change, and compounds the bias against poorer, loweremitting countries. Third, the “IPCC equity categories”1 referenced cannot be considered an authoritative and ethically robust taxonomy of equity approaches in any sense. The IPCC borrowed this categorization from a single study6, intending simply to present data from an incomplete and non-representative sampling of approaches. The original study cautioned that “the current literature only covers a small proportion of the possible allocation approaches” and observed that “many different categorizations ... can be found in the literature”6. Indeed, the IPCC recognized the ethical importance of several other equity notions relevant for emissions allocations. These include: the relative moral relevance of consumption-based versus production-based emissions, survival versus luxury emissions, progressive versus regressive allocation of mitigation costs, prioritarianism versus egalitarianism and finally — but not least — the right to development and the critical ethical importance of the eradication of poverty. Incidentally, but importantly, each of these issues engender ethical arguments that imply greater allocations for poorer and lower-emitting countries compared with the subset of approaches used by Robiou du Pont and co-authors. Neglecting them compounds the bias in the results. Ultimately, the article’s conclusions are not so much derived as predetermined by the authors’ biased normative choices. These methodological and logical shortcomings of Robiou du Pont et al. reveal a more profound problem. When reflecting on the relative fairness of countries’ pledges and actions, the role of scholarly analysis and quantification is to help clarify the ethical underpinnings and consequences of the choices facing society. It is emphatically not to make those normative choices. However, the article by Robiou du Pont et al. has made a number of normatively crucial choices, and not explicitly but rather in a way that obfuscates the ethical underpinnings and their consequences. While presented as a neutral, ecumenical, comprehensive survey that follows an objective IPCC taxonomy, the overall effect — far from illuminating the moral choices confronting society — at best conceals the moral choices and at worst arrogates them. However, we are in utter agreement with Robiou du Pont et al. that “equity is still central for the ratcheting process and when discussing the adequate magnitude of climate finance and support”1. Climate change is a global commons problem, and broad global cooperation is needed to address it. As the IPCC noted, an agreement that is “seen as equitable can lead to more effective cooperation”7. The chances of keeping warming to tolerable levels vastly improve if there is a robust and productive conversation about fairness and equity8. ❐

Responsible for what? Carbon producer CO2 contributions and the energy transition

Judgments of moral responsibility should be informed by both scientific analysis and societal standards. Society distinguishes responsibilities into positive and negative, general and special, and backward-looking and forward-looking. Ekwurzel et al. in Clim Chang 2017 shows that 90 major carbon producers have contributed most of the atmospheric CO2 emissions. Once it became clear no later than the 1960s that continuing CO2 emissions would progressively undermine the climate, the major carbon producers could see that they were marketing harmful products. The simple and merely negative responsibility to “do no harm” required them to reduce that harm rapidly either by modifying the product in order to capture its dangerous emissions or by developing safe substitutes to perform the same function, that is, by developing non-carbon-based forms of energy. The seriousness of the harms brought by climate change made this responsibility especially compelling. Ceasing to contribute to harm includes ending exploration for additional fossil fuels. The half century of failure by corporate carbon producers to reduce the harms caused by their products now gives them additional responsibility to correct the damage done by their decades of neglect of the underlying negative responsibility. If major carbon producers also wish to fulfill the general responsibility to make more than a minimal positive social contribution, their distinctive capacities of political power, wealth, and expertise qualify them for leadership in the transition to an energy regime that would be safe for future generations to rely on.

U.S. Unilateral Arms Control Initiatives: When Do They Work?@@@American Interests, American Purpose: Moral Reasoning and U.S. Foreign Policy@@@The Nuclear Seduction: Why the Arms Race Doesn't Matter--and What Does@@@Nuclear Deterrence and Moral Restraint

The Controversy Theory and Method Soviet Foreign Policy Case Study: Orbiting Nuclear Weapons (1962-63) Case Study: Nuclear Testing (1963) Case Study: Medium-Range Bombers (1964-65) Case Study: Antiballistic Missiles (1967-68) Case Study: Neutron Bombs (1978) Principal Findings Applications of Knowledge