(Edward Elgar Publishing, Daniel A. Farber & Marjan Peeters eds., 2016) (in press). Disaster Law and Climate Change1. Robert R.M. Verchick. Abstract.
Robert R.M. Verchick, Disaster Law and Climate Change, in CLIMATE CHANGE LAW, (Edward Elgar Publishing, Daniel A. Farber & Marjan Peeters eds., 2016) (in press) Disaster Law and Climate Change1 Robert R.M. Verchick Abstract This chapter describes the international legal regimes that address natural disaster and that address climate change. It also identifies a gap in program coverage and examines how the global community is wrestling with the issue. Consider a serious disaster risk that is amplified by climate change. What legal program should kick in? Should we call on policies intended for disaster-risk reduction (DRR) or for climate-change adaptation (CCA)? Or do we need something new and distinct? The border between DRR and CAA is, as we will see, contested. Where one draws the line depends on science, economic interests, and social values. This chapter begins by examining some facts about disasters, climate change, and the relationship between the two. It then describes the legal regimes that address DRR and climate change (including CCA). Finally, this chapter investigates the current debate about how climate-related disasters should be understood and addressed. 1.
Introduction
Consider a serious disaster risk that is amplified by climate change. What legal program should kick in? Should we call on policies intended for disaster-risk reduction (DRR) or for climate-change adaptation (CCA)? Or do we need something new and distinct? The border between DRR and CAA is, as we will see, contested. Where one draws the line depends on science, economic interests, and social values. This chapter begins by examining some facts about disasters, climate change, and the relationship between the two. It then describes the legal regimes that address DRR and climate change (including CCA). Finally, this chapter investigates the current debate about how climate-related disasters should be understood and addressed. 1
I thank Sarah Thompson for her excellent research assistance.
1
But first, a word on terminology. Generally speaking, a natural disaster describes a calamitous event that is triggered by a natural force an earthquake, a flood, a drought, or something similar. Many experts dismiss the possibility of any disaster being completely natural, since human decisions about settlement or planning always play a role.2 Disaster implies disruption, or in language used by the United Nations, a serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental losses and impacts, which exceeds the ability of the affected community or society to cope using its own resources. 3 Two points are worth noting. First, an extreme event is only a disaster if the affected community is overwhelmed and cannot cope. Second, a community s ability to cope will necessarily depend on its exposure to a hazard and its economic and social capacity to withstand the blow. 2.
Natural Disasters and Climate Change Impacts Every year natural disasters cause thousands of deaths and cost billions of dollars in
disaster aid, disruption of commerce, and destruction of homes and critical infrastructure. In 2013, for instance, Typhoon Haiyan
considered the strongest storm ever to make
landfall tore through the central Philippines, killing more than 6,000 people and costing US$13 billion in economic loss. 4 In 2012, Hurricane Sandy swept through the northeastern United States, killing 159 people and causing US$65 billion in economic
2
See Verchick (2010) 4, Quarantelli (1990) 18 ( [T]here can never be a natural disaster; at most there is a
conjuncture of certain physical happenings and certain social happening ). 3
United Nations International Strategy for Disaster Reduction (UNISDR), 2009 UNISDR Terminology on Disaster Risk Reduction (Geneva, United Nations Press, 2009). 4
Stress Test: Responding to This Disaster is Essential, but so is Preparing for the Next , The Economist (16 Nov. 2013), accessed 9 May 2015 (noting fatalities); Annual Global Climate and Catastrophe Report: Impact Forecasting 2013 (Impact Forecasting, 2014) 4, Exhibit 1, accessed 9 May 2015 (noting economic impact).
2
loss.5 All told, the disaster loss from 2005 to 2015 has been heavy indeed. More than 700,000 people were killed;6 more than 1.4 million people were injured; and roughly 23 million were left homeless.7 During that time, disasters are thought to have affected over 1.5 billion people in various ways, with women and children being disproportionately burdened.8 Economic loss totaled more than US$1.3 trillion.9 Studies show that disaster fatalities in the global South dwarf those in the global North, while economic loss in the North often exceeds (in absolute terms) similar loss in the South. 10 Still, overall economic risk is higher in the South, since even comparatively small losses in a poor country can represent a significant share of its GDP.11 Several factors explain such high overall loss. The human population is growing and expanding into areas that are more prone to natural hazards, such as coastlines, flood plains, and precarious hillsides. Zoning and building codes are insufficient or nonexistent in many countries, particularly in congested mega-cities. Many people lack the resources
information, transportation, social networks, money
to protect their assets
and evacuate to safety. Climate change makes things even worse, increasing temperatures, raising sea levels, disrupting precipitation patterns, and contributing to
climate-related extremes.
12
According to the U.N. Intergovernmental Panel on Climate Change (IPCC) the effects of climate change are already occurring on all continents and across the oceans. 5
See Hurricane Sandy Rebuilding Taskforce,
13
The
Hurricane Sandy Rebuilding Strategy: Stronger
Communities, A Resilient Region (Aug. 2013) accessed 10 May 2015. 6
Sendai Framework for Disaster Risk Reduction 2015-2030 (18 March 2015) 4. 7
Ibid.
8
Ibid.
9
Ibid.
10
See generally, UNISDR, Summary and Recommendations: 2009 Global Assessment Report on Disaster Risk Reduction, Risk and Poverty in a Changing Climate (United Nations 2009) 6-7. 11
Ibid.
12
Ibid.
13
C.B Field, et al. (2014) 6.
3
impact of climate change on natural disaster is contentious and notoriously hard to pin down. For the most part, it is extremely difficult, if not impossible, to establish a causal connection between climate change and a single extreme event, our ability to make such assessments will likely to improve.14 But in a 2012 report on disasters and climate change, the IPCC summarized the current scientific consensus.15 The IPCC says it is likely that the frequency of heavy precipitation or the proportion of total rainfall from heavy rainfalls will increase in many areas of the globe.
16
Such downpours will affect
landslides in some areas ( high confidence ) and probably increase flooding in catchment areas ( medium confidence ).17 The IPCC finds it likely that tropical cyclone speeds will increase, posing particular threats to small island states.18 It predicts with medium confidence that droughts will intensify . . . in some seasons and areas, due to reduced precipitation and/or increased evapotranspiration.
19
Susceptible areas include, among
others, southern Europe, Central America, and southern Africa. 20 Droughts can also produce secondary effects, withering crops that then become fuel for wildfire and promoting soil runoff and landslides when the rain returns.21 3.
Disaster and the Law
When studying disaster policy, it is helpful to think of quadrants on a clock face we might call a circle of risk management.
22
what
Beginning at twelve o clock, before the
catastrophic event, are stationed all the planning strategies designed to reduce the risk of harm if something happens. At three o clock, just after the event begins, comes the 14
See generally, Hulme (2014) (in press) (noting technical as well as conceptual challenges with causeand-effect attribution); Farber (2015) 35 (predicting that cause-and-effect attribution will improve). 15 Intergovernmental Panel on Climate Change (IPCC), Managing the Risks of Extreme and disasters to Advance Climate Change Adaption (Cambridge University Press 2012) . 16
Ibid. p. 13 (italics omitted).
17
Ibid. (italics omitted).
18
ibid 13, 15 (italics omitted)
19
Ibid. (italics omitted).
20
Ibid.
21
22
Ibid., p. 42. See Farber, et al. (2015) 4 (suggesting this image).
4
emergency response. Six o clock represents compensatory efforts intended to get people back on their feet. Nine o clock begins the long road to recovery, which, ideally, feeds into a thoughtful process of risk-reduction planning. Some of these stages take longer than others, and they will overlap. What is important to understand is that each stage has a distinct character and will unfold in a predictable order. What experts call international disaster law can be thought of as the combination of treaties, principles, and customs that significantly affect human or environmental well being at various points on the clock face. Some international laws are specifically designed to address disaster risk. Other laws approach disaster in more ancillary ways. Laws that protect the natural environment or that prohibit officials from discriminating against individuals on the basis of race, sex, and place of origin are important examples of such ancillary laws. To date, the most significant and far-reaching international agreement on disaster is the Hyogo Framework for Action 2005-2015.23 (Its successor, the Sendai Framework, will be discussed shortly.) Adopted by U.N. Member States only a few days after the Asian Tsunami of 2005, the Hyogo Framework set down expectations for the world's disaster initiatives through 2015 and charged the U.N. International Strategy for Disaster Reduction with the task of implementation.24 The Hyogo Framework enjoined countries to reduce disaster risk by developing national platforms based on a series of strategic goals that would guide regulatory and development decisions. The framework encouraged a multi-sector approach, paying special attention to issues of poverty, land use, and education. It promoted a strategy in which risk-reduction polices would be mainstreamed into more general initiatives dealing 23
Earlier, but less comprehensive efforts include those of the World Conference on Natural Disaster, see International Decade for Natural Disaster Reduction (IDNDR), Yokohama Strategy for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation and its Plan of Action (United Nations 1994) which established many of the principles expanded upon in Hyogo, and the Agenda for Humanitarian Action adopted by the International Conference of the Red Cross and Red Crescent in December 2003. 24
See United Nations International Strategy for Disaster Reduction (UNISDR), Hyogo Framework for
Action 2005 2015: Building the Resilience of Nations and Communities to Disasters extract from the Final Report of the World Conference on Disaster Risk Reduction, (Kobe, Hyogo, Japan 2005) .
5
with economic development, environmental protection, scientific research, and other concerns. Wealthy countries were urged to offer financial and technical assistance to poorer countries and to provide adequate voluntary financial contributions to the United Nations own disaster management fund. Today more than 80 countries, from Afghanistan to the United Kingdom, now have national platforms;25 and more than 100 countries are monitoring progress toward framework goals. Framework-inspired strategies have already been designed for or implemented in Latin America, Europe, Africa, Asia, and the Pacific.26 In earthquakeprone Kazakhstan, the U.N. Development Programme is helping to incorporate disaster response information in grade school curricula as a way of building resilience in poorer communities.27 Nigeria, whose people sometimes endure heavy rains and dangerous floods, has integrated risk reduction into its regional planning budgets and antipoverty initiatives.28 In Vietnam, a special partnership of government offices, private donors, and NGOs is promoting disaster management for the country's storm-swept jungles and shores; the project includes strategies for lifting villagers out of poverty as well as and protecting river basins from environmental damage.29 These efforts, combined with many others, appear to be working. For instance, since the Hyogo Framework took effect, the number of people in Asia who have been directly affected by natural disasters has fallen by almost one billion.30
25
UNISDR, PreventionWeb accessed 10 May 2015. 26
Ibid.
27
Alexandr Kravchuk (2009) 8.
28
Nigeria: Poverty Reduction Strategy Paper- National Economic Empowerment and Development
Strategy (International Monetary Fund 2005) 33. 29
Implementation of Sustainable Development, National Report at the United Nations Conference in
Sustainable Development (Hanoi 2012) . 30
Sendai: UN Conference Adopts New, People-Centred Disaster Risk Reduction Strategy (UN News Centre 18 March 2015) accessed 10 May 2015.
6
On 18 March 2015, U.N. Member States adopted a successor agreement to the Hyogo Framework. That agreement is called the Sendai Framework for Disaster Risk Reduction 2015-2030.31 The Sendai Framework builds on the strategies of its predecessor, but places greater emphasis on building the technical capacity to understand global and regional risks in all of their dimensions so that priorities and allocations of resources can be set. The Sendai Framework also emphasizes the need for good governance, strong financial commitments, and recovery plans committed to building back better.
32
The
Sendai Framework sets some ambitious goals over the next fifteen years, including a substantial reduction in disaster mortality, a substantial reduction in damage to critical infrastructure, and a reduction in economic losses in relation to global GDP.33 While important in an aspirational sense, experts are already questioning whether some of the goals, such as the reduction of economic loss, are obtainable.34 Many international environmental agreements also address disaster risk. The U.N. Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 35 adopted in 1994, specifically targets issues of water scarcity. The U.N. Millennium Declaration of 2000 listed among its key objectives, [p]rotecting the vulnerable and [p]rotecting our common environment ; the parties also resolved to intensify cooperation to reduce the number and effects of natural and man-made disasters.
36
Of international agreements relevant to disaster management, many focus on human rights. In the fog of disaster crooked officials have many opportunities to take advantage of the less powerful, to discriminate against unpopular groups, or to illegally seize land.37 31 32 33
UNISDR n 8. Ibid. Ibid., p. 7.
34
See, New Study Shows Little Prospect of Reducing Economic Losses from Disasters (WCDRR 18 March 2015) accessed 10 May 2015 (describing conclusion of forthcoming study). 35
(UNCCD 1994) . 36
(UNMD 2000) < http://www.un.org/millennium/declaration/ares552e.pdf>.
37
See Verchick (2010) 111-16..
7
In the midst of crisis, even the most well-intentioned officials will have trouble protecting residents basic rights, if they have not planned accordingly.
The human rights
agreements most invoked in disaster situations are the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination,38 and the Protocol Relating to the Status of Refugees.39 Other relevant treaties include the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women40; and the Convention on the Rights of the Child.41 For the most part these agreements were not drafted with disaster management specifically in mind. And although aggrieved individuals have the right to issue complaints with the United Nations, none of these conventions creates individual rights legally enforceable in the traditional sense. A special concern, which international law has not adequately addressed, involves internally displaced persons (IDPs) people who are forced to flee their homes but who remain within their country's borders. Of the millions of IDPs in the world, most are thought to be displaced by violent conflict. But disasters, both natural and manmade, contribute significantly to the problem. Readers can learn more about IDPs and the challenges they face in chapter ___, which examines climate refugees. 4.
42
The Law of Climate Change and Natural Disaster
Because threats like intensified droughts and rising seas, are so immediate threat, disaster management experts put special emphasis on climate change adaption, that is, preparing communities to cope with the climate impacts that cannot be avoided by carbon reduction. From its inception, the U.N. Framework Convention on Climate Change (UNFCCC) acknowledged the need for adaptation strategies; but it was short on details. The framework’s Article IV, for instance, requires parties to “cooperate in preparing for
38
(UNHCHR 1996-2015) < http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx>.
39
(UNHCR 2010) < http://www.unhcr.org/3b66c2aa10.html>.
40
(United Nations 2000-2009) .
41
(OHCHR 1996-2015) .
42
For more on IDPs and disaster law, see Farber, et al. (2015) 478-89.
8
adaptation to the impacts of climate change.”43 Article III urges parties to expand development assistance to foster “sustainable economic growth and development in . . . developing country Parties, thus enabling them better to address the problems of climate change.”44 Since that time, convention parties have gradually carved a channel toward more comprehensive adaptation strategies. The route was marked by a series milestone agreements to: monitor and measure regional risks (1996), fund poor countries, encourage local planning, and support pilot projects (2001); share knowledge (2005); scale up implementation (2007); and to embrace a comprehensive global plan (2011).45 This last achievement, realized in the Cancun Adaptation Framework, represents an inaugural harbor—bristling with financial and procedural infrastructure—into which the global community hopes to import its best ideas. In broad strokes, the Cancun Framework contains three features: an adaptation committee to coordinate international efforts; a program for National Adaptation Plans to encourage long-term planning in developing countries; and a work program on “loss and damage,” now codified as the Warsaw International Mechanism for Loss and Damage.46 The Warsaw Mechanism aims “to address loss and damage associated with impacts of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change.”47 The mechanism promises development of enhanced “risk management approaches” and stronger coordination among stakeholders; but the most significant commitment comes in the form of enhanced action and support, including finance, technology and capacity-building.
48
A set of ancillary agreements memorialize commitments on technology sharing, capacity building, and financing. The last has proved the most challenging. Currently,
43
UNFCCC (United Nations 1992) Art 4(1)(e).
44
Ibid., Art 3(5).
45
Caripis (2014) 9-11.
46
Ibid., p. 11.
47
Draft Decision, Warsaw international mechanism for loss and damage associated with climate change
impacts Decision -/CP.19 para 9. 48
Ibid.
9
parties have committed to providing US$100 billion per year until 2020 for mitigation and adaptation purposes. These funds are to be collected and disbursed by the newly launched “Green Climate Fund.”49 In addition, the parties have recognized the need for “additional, predictable and adequate funding” for developing countries, since many of them are “particularly vulnerable to the adverse effects of climate change.”50
5. Loss and Damage : A Gap Between DRR and CCA? Negotiations over loss and damage shed light on what some believe is an important gap between policies intended for DRR and policies intended for CCA. The resulting Warsaw Mechanism attempted to fill that gap, but has left a rift between the industrialized North and the developing South. The negotiations also raised important questions about the difference between DRR and CAA, and the degree to which those challenges deserve separate responses. Understanding the debate behind the Warsaw Mechanism helps us understand the special nature of disaster risk within the international climate conversation. Members of the global South particularly island nations
have long voiced concern
over large climate-based disasters. Given the scale of the hazard, they argued that disaster risk deserved to be treated as a distinct issue in climate policy. When financial commitments to adaptation funds softened, many in the global South were alarmed and began emphasizing again the special needs of disaster-prone areas. The solution was a proposed mechanism to address so-called loss and damage, an imprecise term meant to describe risks posed by certain climate impacts, including those that cannot be reduced by adaptation.
51
Developed nations, including the United States, and the European
49
Ibid.
50
UNFCCC, Report of the Conference of the Parties on its Sixteenth Session, Held in Cancun from 29
November to 10 December 2010 Addendum Part Two: Action Taken by the Conference of the Parties at Its Sixteenth Session (United Nations 15 March 2011) . 51
Report of the Conference of the Parties on Its Nineteenth Session, Held in Warsaw from 11 to 23
November 2013 Addendum Part Two: Action Taken by the Conference of the Parties at Its Nineteenth Session, UN Doc FCCC/CP/2013/10/Add.1 (31 January 2014) Decision 2/CP.19. For further commentary
10
Union argued that matters of climate-related disaster should be left to the Hyogo Framework and its successor agreement. Developing nations disagreed. They argued not only that loss and damage should be included in the UNFCCC, but that it should be treated as distinct from CCA.52 The South s argument drew from two principles of international environmental law. The first is the polluter pays principle, which holds that the party responsible for producing pollution should be responsible for preventing or remedying the damage.53 Because wealthy countries have contributed more to climate change than poorer ones, it stood to reason that the wealthy should pay more to reduce risk in the South. Leaving climate-related disaster risk to the Hyogo Framework would ignore the North s special responsibility on this issue; it would slant the discussion away from hard-headed accountability and toward charity instead. The second principle, suggested in various human rights agreements, is that certain human deprivations, such as loss of life, livelihood, and shelter, are more objectionable and urgent than others. Because these deprivations are so widespread during disaster, treating disaster risk as a special category of climate policy, with a distinct mechanism for funding, seemed to make sense. With the Warsaw Mechanism, representatives of the North and South reached a temporary compromise. The mechanism offers a partial victory to developing nations by reserving a spot for disaster risk on the climate-side of international law. But developing nations are unhappy that the mechanism was folded into the adaptation program, rather than being allowed to stand on its own. The parties have promised to revisit that issue in November 2016. To add to the vagueness, the parties have still not agreed on what activities the mechanism would fund. (Developing countries want funds available for compensation after-the-fact; developed countries want funds used only for pre-disaster see, Kristen Dow and Frans Berkhout Climate change, Limits to Adaptation and the Loss and Damage Debate 13 March 2014 , http://www.e-ir.info/2014/03/13/climate-change-limits-to-adaptation-and-theloss-and-damage-debate/; Roda Verheyen, Tackling Loss and Damage A New Role for the Climate Regime? , 6-7. 52
Govind & Verchick (2015) 503-04.
53
See, e.g., Rio Declaration on Environment and Development (UNCED 1992) Principle 16.
11
planning.) 6.
Conclusion
The legal regimes governing disaster risk and climate change are both works in progress. Both are concerned with reducing hazard risk throughout the world, with special attention paid to developing countries. But in the case of climate impacts, the global South has a more compelling claim to wealth transfers from the North because of the latter s historical contribution to global warming. Where climate impacts result in catastrophic damage, the claim for redress is especially urgent. For these reasons, parties will continue to debate whether natural disasters amplified by climate-change should be seen as part of DRR, CCA, or a free-standing third category meriting special treatment. Any definitive resolution is likely years away. The debate raises at least two questions that could benefit from further research and analysis. First, to what degree should DRR and CCA be integrated? There are good reasons to see DRR, CAA
and economic development, too
as facets of the same
stone. A holistic view can lead to systems that are better coordinated, more efficient, and centered on the most deserving needs. But when responsibilities are combined, accountability can fade, as can focus of mission. It is possible that a little fragmentation is a good thing. Second, assuming that loss and damage from climate-induced disaster should be treated differently from other tough luck disasters, how will we know the difference? This is not just a technological question. Multi-causal events by their nature raise conceptual issues about certainty, intervening factors, and allocation of responsibility, that must ultimately be settled by political processes. Perhaps all the scientific work now devoted to cause-and-effect attribution would be better spent on some more illuminating topic.54 Will politics be easier or harder when we can fingerprint a storm?
54
See Hulme (2014) (raising this point).
12
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15
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16
