¹ In this discussion, justice refers to distributive justice—that is, to general standards for allocating collective benefits and burdens among the members of a community (local, national or global). Principles of justice characteristically exist prior to and independently of any phenomenon to be judged, but their exact meaning in specific contexts is often ambiguous. While justice can be thought of as a macro–concept, fairness exists at the micro–level: it consists of individual notions of what is ‘reasonable’ under the circumstances, often in reference to how a principle of justice regarded as pertinent should be applied (Albin, Cecilia, ‘The Role of Fairness in Negotiation’, Negotiation Journal, vol. 9 (1993)CrossRefGoogle Scholar). Parties naturally tend to view their own notions of fairness as ‘justice’—as criteria reflecting some higher ethics which go beyond partisan perceptions and interests. This article is concerned with both the justice of emission reductions in a wider transnational sense, and the fairness of these to (and in the eyes of) individual parties.

There are no generally accepted definitions of ‘justice’ and ‘fairness’. In the academic field of negotiation, the study of these two concepts is still very limited and they are commonly used interchangeably as synonyms. Within political philosophy, Barry, B., Political Argument (London, 1965)Google Scholar, argues that unlike justice, fairness ‘in its wide sense’ usually refers only to comparative distributive considerations. In Rawls, J., A Theory of Justice (Cambridge, MA, 1971)Google Scholar, principles of justice and fairness seem partly distinct and partly overlapping. Principles of justice apply primarily to the basic structure of society and workings of social institutions, and only indirectly to specific resource distributions. With respect to resource distributions, in Rawls' ‘justice as fairness’ theory, two principles are endorsed: the unequal distribution of all goods to the benefit of the worst–off until a basic level of material wellbeing exists; and thereafter equal distribution of basic liberties and possibly unequal distribution of ‘primary goods’ (e.g., income, wealth, and social status) if it maximizes the wellbeing of the most needy and equality of opportunity is present.

The European acid rain problem illustrates that just outcomes are not necessarily fair, nor are fair outcomes necessarily just. An outcome may be just in the sense of being in accordance with a general distributive principle, but unfair in how the principle has been applied. An outcome may be fair to a group of parties at the local level but unjust on an international scale. Justice may be and fairness is often an element of—but neither equalizes—acceptable or accepted (negotiated) outcomes. Among other common criteria such outcomes must also be feasible, reasonably efficient, and verifiable. A party may voluntarily agree to an unjust outcome but rarely, unless pressured, to an unfair one.

² See G. Klaassen, M. Amann and W. Schopp, ‘Strategies for Reducing Sulfur Dioxide Emissions in Europe Based on Critical Sulfur Deposition Values’. Background paper prepared for the UN Economic Commission for Europe (ECE) Task Force on Integrated Assessment Modelling, 30 November–2 December, 1992. Geneva, Switzerland. Draft, November 1992, Laxenburg, Austria.

³ Negotiation is defined as a joint decision–making process in which parties, with initially incompatible positions, arrive at an agreement through the exchange of concessions and/or problem–solving. It normally includes both dialogue with discussion on merits and bargaining with the use of competitive tactics such as promises or threats.

⁴ On the German forests problem, see Fraenkel, A., ‘The Convention on Long–Range Transboundary Air Pollution: Meeting the Challenge of International Cooperation’, Harvard International Law Journal, vol. 30 (1989), pp. 447–76Google Scholar; on the Norway problem, see Brackley, P. (ed.), World Guide to Environmental Issues and Organizations (Essex, 1990)Google Scholar. For an overview of the problems of European transboundary air pollution and acid rain negotiations in general, see: Schneider, T. (ed.), Acidification Research: Evaluation and Policy Applications, Proceedings of an International Conference, Maastricht, The Netherlands, 14–18 October 1991 (Amsterdam, 1992)Google Scholar; Alcamo, J., Shaw, R. and Hordijk, L. (eds.), The RAINS Model of Acidification: Science and Strategies in Europe (Dordrecht, 1990)Google Scholar; Boehmer–Christiansen, S. and Skea, J., Acid Politics: Environmental and Energy Policies in Britain and Germany (London, 1991)Google Scholar; Chossudovsky, E., ‘East–West’ Diplomacy for Environment in the United Nations: The High–level Meeting within the Framework of the ECE on the Protection of the Environment. A Case Study (UNITAR, New York, 1988)Google Scholar; and Carroll, J. (ed.), International Environmental Diplomacy (Cambridge, 1988)Google Scholar.

⁵ Albin, C., ‘The Global Security Challenge to Negotiation: Towards the New Agenda’, in Albin, C. (ed.), Negotiation and Global Security: New Approaches to Contemporary Issues, Special Issue of American Behavioral Scientist (London and Newbury Park, forthcoming 1995)Google Scholar; Susskind, L., Environmental Diplomacy: Negotiating More Effective Global Agreements (Oxford, 1994)Google Scholar.

⁶ Brunnee, J., Acid Rain and Ozone Layer Depletion: International Law and Regulation (New York, 1988)Google Scholar.

⁷ Albin, ‘Role of Fairness’.

⁸ Albin, ‘Role of Fairness’.

⁹ Klaassen el al, ‘Strategies’.

¹⁰ For example, as further discussed below, equal percentage reductions in emissions reflect not only a notion of equality but also one of equity. Cost–sharing schemes reflect compensatory justice, as well as a variation on equity or desert given the distribution of resources proportionally to the degree of inflicted harm.

Other principles of outcome fairness and justice (with little or no applicability to acid rain) include ‘no–envy’ or ‘superfairness’, which holds that an allocation is fair only if no party prefers the other's share of the resources to its own (Foley, D., ‘Resource Allocation and the Public Sector’, Yale Economic Essays, vol. 7 (1967), pp. 45–98Google Scholar, and Baumol, W., Superfairness: Applications and Theory (Cambridge, MA, 1987))Google Scholar; retribution (‘punitive justice’) which says that a party guilty of some wrong in the past should be accorded fewer rewards; the priority principle according to which the ‘winner’ (determined proportionally, e.g. through a lottery or voting) gets more than a proportional share of the resources; subtractive justice according to which the disputed goods are taken away from all parties, which are thus treated identically; and precedent whereby the decision over a previous comparable case serves as the rule for determining allocations.

¹¹ See notably Aristotle's Nicomachean Ethics and Politics.

¹² The importance of the nature of the good for the applicability of any distributive principle has not been sufficiently stressed or researched. Exceptional contributions on the subject include Rawls, Justice and Young, H. P., Equity: In Theory and Practice (Princeton, 1993)Google Scholar. As discussed above, Rawls singles out ‘primary goods’ as those that could be distributed unequally if that maximizes the well–being of the weakest or poorest and equality of opportunity is present. ‘Basic liberties’, by contrast, should always be distributed equally once a basic level of material well–being exists.

¹³ Frankfurt, H., ‘Equality as a Moral Idea’, Ethics, 98 (1987), pp. 21–43CrossRefGoogle Scholar.

¹⁴ Obviously the task of measuring and comparing individual experiences of welfare from consuming particular goods, and distributing goods accordingly to ensure equality of well–being, is extremely difficult. It may not even be desirable or fair. (Rawls, J., ‘Social Unity and Primary Goods’, in Sen, A. and Williams, B. (eds.), Utilitarianism and Beyond (Cambridge, 1982))Google Scholar. Another concept of equality poses similar problems of measurement and comparison: the idea that resources should be distributed to render people's functioning capabilities the same (Sen, A., Inequality Reexamined (Oxford, 1992))Google Scholar.

¹⁵ Pruitt, D. G., Negotiation Behavior (New York, 1981)Google Scholar; ‘Economic Principles for Allocating the Costs of Reducing Sulphur Emissions in Europe’, Report submitted by the Delegation of the Netherlands to the Group of Economic Experts on Air Pollution, Executive Body for the Convention on Long–Range Transboundary Air Pollution, UNECE, for the 5th Session, Geneva, 26–28 June 1989 (EB.AIR/GE.2/R.26, 19 May 1989).

¹⁶ See the section on ‘Equity’ below.

¹⁷ Bartos, O., Process and Outcome of Negotiations (New York, 1974)Google Scholar.

¹⁸ ‘Positions and Strategies of the Different Contracting Parties to the Convention on Long–Range Transboundary Air Pollution Concerning the Reduction of Sulphur Emissions and their Transboundary Fluxes’, 6 August 1985, Document ECE/EB AIR/7.

¹⁹ Regens, J. and Rycroft, R., The Acid Rain Controversy (Pittsburgh, PA, 1988)Google Scholar.

²⁰ Variations on the equality principle have frequently been used in territorial boundary disputes, arms control talks, and other international negotiations, particularly when the parties viewed themselves as roughly equal in power. See further Druckman, D. and Harris, R., ‘Alternative Models of Responsiveness in International Negotiation’, Journal of Conflict Resolution, vol. 34 (1990), pp. 234–51CrossRefGoogle Scholar.

²¹ Schelling, T. C., The Strategy of Conflict (Cambridge, MA, 1960)Google Scholar.

²² Under current national reduction plans Poland is required to undertake a 37 per cent reduction of its SO2 emissions (3,210 kton in 1990) at the cost of 0.31 per cent of its GDP annually, and Ukraine a 56 per cent reduction in its SO2 emissions (2,782 kton in 1990) for 0.44 per cent of its GDP, by the year 2000 compared to 1980. By contrast, rich countries with very low SO2 emission levels, such as Switzerland (62 kton in 1990) and Norway (54 kton in 1990), will be able to undertake 50–52 per cent reductions by 2000 compared to 1980, at the cost of 0.01 per cent and 0.09 per cent of their GDPs, respectively (Klaassen el al., ’Strategies’).

²³ Haigh, N., ‘New Tools for European Air Pollution Control’, International Environmental Affairs, 1 (1989), pp. 26–37Google Scholar.

²⁴ Barry, B., Political Argument (London, 1965)Google Scholar; Sidgwick, H., The Methods of Ethics, 6th edn (London, 1901)Google Scholar.

²⁵ Kelley, H. H., Beckman, L. L. and Fischer, C. S., ‘Negotiating the Division of Reward Under Incomplete Information’, Journal of Experimental Psychology, no. 3 (1967)Google Scholar.

²⁶ Homans, G., Social Behaviour (New York, 1961)Google Scholar.

²⁷ This method may yield distorted measurements in assuming that every country has the ability to pay what it is willing to pay, and may underestimate the will to pay for emission reductions notably in economically weaker countries.

For examples of how this norm may be applied, see ‘Economic Principles for Allocating the Costs of Reducing Sulphur Emissions in Europe’.

²⁸ In this case, the equity principle overlaps with equality understood as equal percentage reductions. One interpretation of the ‘polluter pays’ principle is that each country's share of the emission reduction costs in a region should be proportional to its own emission level in a selected reference year. However, the most common understanding of the norm is that the producers of pollution should pay all the abatement costs themselves so that these are fully reflected in the market prices of polluting products.

²⁹ Protocol to the 1979 Convention on Long–Range Transboundary Air Pollution Concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes (1 November, 1988), article 1, paragraph 7. (Reprinted in Register of International Treaties and Other Agreements in the Field of the Environment, 1991Google Scholar.)

³⁰ Fraenkel, ‘Convention’.

³¹ Protocol to the 1979 Convention on Long–Range Transboundary Air Pollution.

³² At present it is not possible to reach critical loads everywhere, even if the best available abatement technologies were used. In practice countries have agreed to negotiate ‘target loads’ which also take account of technological capacities, economic control costs, and social factors. A. Wiister, ‘The Convention on Long–Range Transboundary Air Pollution: Its Achievements and its Potential’, in Schneider, T. (ed.), Acidification Research (Amsterdam, 1992).Google Scholar

³³ ‘The Critical Load Concept and the Role of Best Available Technology and Other Approaches’. Report of the Working Group on Abatement Strategies, September 1991. Economic Commission for Europe EB. AIR/WG.5/R.24/Rev.l.

³⁴ Fauteux, P., ‘Commentary: Percentage Reductions versus Critical Loads in the International Legal Battle against Air Pollution: A Canadian Perspective’, in Lang, W., Neuhold, H. and Zemanek, K. (eds.), Environmental Protection and International Law (London, 1991)Google Scholar.

³⁵ Klaassen et al., ‘Strategies’.

³⁶ J. Sliggers and G. Klaassen, ‘Cost Sharing for the Abatement of Acidification in Europe: The Key to a Protocol’, draft paper prepared for a session of the UNECE Task Force on Economic Aspects of Abatement Strategies, Geneva, 3–4 December 1992. In many proposals for financing acid rain controls in the United States, each state's contribution to a common trust fund is determined by a combination of considerations for electricity use and emission levels (e.g. Wetstone, G., ‘An Introduction to the Trust Fuel Approach’, The Environmental Forum (August 1983)Google Scholar; Rhodes, S., ‘Super–funding Acid Rain Controls: Who Will Bear the Costs?’ Environment, vol. 26 (July/August 1984)Google Scholar. Receipts from the fund are usually proportional to the state's share of the total projected emission reductions on a national scale.

³⁷ Bergman, L., Cesar, H. and Klaassen, G., ‘Efficiency in Transboundary Pollution Abatement: A Scheme for Sharing the Costs of Reducing Sulphur Emissions in Europe’, in Krabbe, J. J. and Heyman, W. J. M. (eds.), National Income and Nature: Externalities, Growth and Steady State (Dordrecht, 1992)Google Scholar.

³⁸ Pruitt, Negotiation Behavior. Foa, U. and Foa, E., Resource Theory of Social Exchange (Morristown, NJ, 1975)Google Scholar hold that the more intangible (or personal/particularistic) a resource is—for example, status as opposed to money—the more intangible (or personal) the good should be for which it is replaced. If this ‘reciprocation in kind’ rule is followed, the perceived costs of both delivering and accepting compensation will be lower or even positive.

Raiffa exemplifies how related compensation can be used creatively in negotiations, to tackle the direct risks which the siting of hazardous waste storage facilities imposes on the host community to the benefit of society at large. When already high safety standards exist for a waste storage facility, attempts to increase these standards even further will usually be relatively ineffective and extremely costly. Rather, compensation in the form of improved community health and safety conditions in other needed areas will often leave its members far better off in net health and safety, and at a lower cost for society at large. H. Raiffa, ‘Maybe in My Backyard: Creative Use of Creative Compensation’, Working Paper Series, no. 85–1, Program on Negotiation, Harvard Law School (Cambridge, MA, 1985).

³⁹ See O'Neill, O., ‘Rights for Compensation’, Social Philosophy and Policy, vol. 5 (1986)Google Scholar, and ‘Transnational Justice’, in Held, D. (ed.), Political Theory Today (Cambridge, 1991)Google Scholar, for a discussion of problems of determining and allocating rights to compensation.

⁴⁰ See, for example, Sliggers and Klaassen, ‘Cost Sharing’.

⁴¹ Fauteux, ‘Commentary’.

⁴² R. Lofstedt, ‘What Factors Determine the Provision of Environmental Aid to Eastern Europe: The Case of Sweden’, Working Paper 88–096, October 1988 (Laxenburg, Austria).

⁴³ Bergman el at., ‘Efficiency’.

⁴⁴ ‘Economic Principles for Allocating the Costs of Reducing Sulphur Emissions in Europe’, p. 6.

⁴⁵ Young, H. P., Equity: In Theory and Practice (Princeton, 1993)Google Scholar.

⁴⁶ I. W. Zartman, ‘The Role of Justice in Global Security Negotiations’, in Albin (ed.), Negotiation and Global Security (forthcoming).

⁴⁷ Lax, D. and Sebenius, J., The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain (New York, 1986)Google Scholar; Schelling, Strategy; Bartos, Process.

⁴⁸ See footnote 1.

⁴⁹ Albin, ‘Role of Fairness’.

⁵⁰ The concept of ‘integration’ refers to strategies which seek to combine and reconcile fundamental interests and needs underlying official positions in a conflict, in order to bring about more mutually beneficial and stable solutions. When successfully applied the approach entails that the core concerns of the various parties are fulfilled. It stands in contrast to distributive negotiation which exchanges concessions based on, or ‘splits the difference’ between, stated positions and often necessitates costly compromises. While the problem and positions are already well defined by the time distributive bargaining gets under way, reconceptualization of the issues is at the core of integrative strategies to allow new sets of possible trades and new options to emerge. (Albin, C., ‘Negotiating Indivisible Goods: The Case of Jerusalem’, The Jerusalem Journal of International Relations, vol. 13 (March 1991), pp. 45–76.Google Scholar)

⁵¹ Hare, A. P. and Naveh, D., ‘Creative Problem Solving—Camp David, 1978’ and ‘Conformity and Creativity – Camp David, 1978’, both in Small Group Behaviour, respectively vol. 16 (1985), pp. 123–88CrossRefGoogle Scholar and vol. 17 (1986), pp. 243–68.

⁵² Pruitt, Negotiation Behavior.

⁵³ Haigh, N., ‘New Tools for European Air Pollution Control’, International Environmental Affairs, vol. 1 (1989), pp. 26–37Google Scholar.

⁵⁴ Boehmer–Christiansen and Skea, Acid Politics.

⁵⁵ The details of this proposal are discussed below.

⁵⁶ ‘Council directive on the limitation of certain pollutants into the air from large combustion plants.’ (December 7, 1988), 86/609/EEC, Official Journal of the European Communities, L336.

⁵⁷ Fisher, R., ‘Fractionating Conflict’, in Fisher, R. (ed.), International Conflict and Behavioral Science: The Craigville Papers (New York, 1964)Google Scholar.

⁵⁸ Boehmer–Christiansen and Skea, Acid Politics.

⁵⁹ B. Spector, ‘Creativity Heuristics for Impasse Resolution’, unpublished draft, October 1992; Sjostedt, G. and Spector, B., ‘Conclusion’, in Sjostedt, G. (ed.), International Environmental Negotiation (London and Newbury Park, CA, 1993)Google Scholar.

⁶⁰ A. McDonald presents work on developing a database called ILLEX which catalogues past successful negotiations (see ‘International River Basin Negotiations: Building a Database of Illustrative Successes’, Working Paper 88–096, October 1988 (Laxenburg)). Its purpose is to encourage creative problem–solving in international river basin talks through the use of analogies.

⁶¹ Young, H. P. and Wolf, A., ‘Global Warming Negotiations: Does Fairness Matter?, The Brookings Review, vol. 10 (1992), pp. 46–51Google Scholar.

⁶² Albin, ‘Negotiating Indivisible Goods’.

⁶³ Sebenius, J., Negotiating the Law of the Sea (Cambridge, MA, 1984)Google Scholar; Lax and Sebenius, Manager.