[Working Paper] Reconceptualizing Fairness in International Shipping Decarbonisation: The Normative Tension between Maritime Uniformity and Climate Differentiation

Abstract

This article proposes a perspective for understanding and bridging the normative tensions that arise when legal regimes interact, using the law-making process in international shipping decarbonisation as its focal point. A persistent difficulty lies in incorporating the climate regime’s principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) into the International Maritime Organization (IMO) framework, as its requirement of differentiation conflicts with the IMO’s commitment to uniformity, expressed in the principle of no more favourable treatment. This conflict reflects a deeper tension in how the two regimes conceptualise fairness. In the climate regime, fairness has long been articulated through a substantive conception of justice, linking responsibility to historical emissions and capacity. In the maritime regime, by contrast, fairness is expressed through uniform rule application. When IMO turns to regulate climate-related issue, these divergent fairness grammars collide: one pushes toward differentiation and structural change, while the other secures stability through uniformity. Reframing the challenge as a matter of translation between fairness grammars helps to shift the analytical terrain towards pathways through which climate justice can be integrated without displacing maritime ship-based uniform rules. More broadly, the article shows that when legal regimes interact, the fairness grammar inherent in each regime reshapes the normative foundations of the new regulatory terrain. This perspective provides an analytical lens for the integration of climate justice into maritime decarbonisation and suggests that the emergence of new rules depends not only on legality but also on developing a shared conception of fairness capable of bridging political divergence.

Keywords: climate change regime, marine law, shipping decarbonisation, climate justice, International Maritime Organisation, regime interaction

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More about the author at: https://law.nus.edu.sg/apcel/people/yang-huiwen/