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We will make these arguments by way of two very different case ... triggered at least in part by a natural force—an earthquake, a flood, a hurricane, drought, ... hammering rains caused massive flooding across Germany, Austria, and East-Central .... Intergovernmental Panel on Climate Change (New York: Cambridge ...

Draft, 29 April 2015 Paul J. Govind & Robert R.M. Verchick, Natural Disaster and Climate Change, in INTERNATIONAL ENVIRONMENTAL LAW AND THE GLOBAL SOUTH: COMPARATIVE PERSPECTIVES (Shawkat Alam, Sumudu Atapattu, Carmen G. Gonzalez, & Jona Razzaque eds., Cambridge University Press 2015) (forthcoming)

NATURAL DISASTER AND CLIMATE CHANGE Paul J. Govind* Robert R.M. Verchick** This essay examines the relationship between international adaptation efforts with regard to climate change and disaster management policy. Reviewing the respective United Nations frameworks for both climate and natural disasters, we find many shared interests and opportunities for collaboration. To better unite these areas of law, we suggest focusing on two concepts relevant to both fields: global group responsibility and a focus on local action and socio-economic conditions. While these ideas may at first seem in conflict, we will show how each is critical to policy initiatives in both fields and can therefore serve as important points of intersection. We illustrate our claim by way of two very different case studies. The first examines the recent international negotiations over “loss and damage” under the United Nations Framework Convention on Climate Change (UNFCCC), which have now erupted into a major debate about the North’s responsibility to the South. The second case study examines a relatively small climate resilience project, funded by a private foundation, in the Indian city of Surat, a global center for textile manufacturing and diamond polishing, which is also prone to enormous coastal floods. The relative success realized here suggests the promise of integrating local organizational methods into a global commitment to climate adaptation. The example suggests how wealthy actors (in this case a foundation) can guide and empower vulnerable communities by tapping into local values and existing networks. Our aim is to begin a conversation about the relationship between climate change adaptation and disaster risk reduction. keywords: climate change adaptation, climate change mitigation, disaster law, disaster risk reduction, international environmental law, international development, international law, resilience, wealth inequality

*

Lecturer, Macquarie University, Sydney, Australia. Gauthier-St. Martin Chair in Environmental Law, Loyola University New Orleans; Senior Fellow in Disaster Resilience Leadership, Tulane University. Our discussion of Surat, India, is based on field research that Professor Verchick conducted in 2012, while working as a Fulbright-Nehru Environmental Leadership Scholar and a Visiting Scholar at the Center for Policy Research (CPR) in New Delhi. He is grateful to the Fulbright Scholar Program and to CPR for their generous support.

**



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In the twenty-first century, it is nearly impossible to talk about the environment without also talking about climate change whilst in turn it is nearly impossible to talk about climate change without also talking about natural disasters. Global warming, rising seas, and recurring drought are all part of the same unfolding story. One can hardly read an Intergovernmental Panel on Climate Change (IPCC) assessment or government white paper without browsing through page after glossy page of swamped fishing villages, collapsed favelas, and withering maize. What saves the photo spreads from fetish is that the hazards they depict are real and ongoing. Despite this increasing evidence, policy makers have been slow to align the legal mechanisms confronting climate change and natural disaster. This is especially true at the international level, where attempts to bridge the gap between climate change adaptation (CCA) and disaster risk reduction (DRR) have re-opened old debates between the Global North and Global South, and where ideas hatched in sparkling banquet rooms never make it to the eroding banks of the riverside slum. In this chapter, we examine the relationship between international adaptation efforts with regard to climate change, on the one hand and disaster management policy, on the other. Reviewing the respective United Nations frameworks for both climate and natural disasters, we find many shared interests and opportunities for collaboration. In particular, we think that notions of causation and group responsibility—both found in international climate policy—can provide a necessary context for imagining disaster resilience on a warming planet. Similarly, we believe the emphasis on local action and socio-economic conditions—a trademark of disaster planning—can inspire the next wave of adaptation efforts. We will make these arguments by way of two very different case



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studies. The first examines the recent international negotiations over “loss and damage” under the United Nations Framework Convention on Climate Change (UNFCCC), which have now erupted into a major debate about the North’s responsibility to the South.1 The second case study examines a relatively small climate resilience project, funded by a private foundation, in the Indian city of Surat, a global center for textile manufacturing and diamond polishing, which is also prone to enormous coastal floods. The relative success realized here suggests the promise of integrating local organizational methods into a global commitment to climate adaptation. The example suggests how wealthy actors (in this case a foundation) can guide and empower vulnerable communities by tapping into local values and existing networks. Our aim is to begin a conversation about the relationship between CCA and DDR. I. A.

Framing the Discussion

An Introduction to Natural Disasters and Climate Change

Before turning to the case studies, we will frame the discussion by reviewing some facts about natural disasters, climate change impacts, and the applicable law. A “natural disaster,” as the term is generally used, describes a calamitous event that is triggered at least in part by a natural force—an earthquake, a flood, a hurricane, 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 Global warming, which has the potential to influence nearly any weather-related 1

United Nations Framework Convention on Climate Change, 9 May 1992,, in force 21 March 1994, 1771 UNTS 107 (UNFCCC). 2 See Robert R.M. Verchick, Facing Catastrophe: Environmental Action for a Post-Katrina World Cambridge, Harvard University Press, 2010) (describing increased trend in disasters as driven by growing population, expanded development, and global warming); Bob Bolin, ‘Race, Class, Ethnicity, and Disaster



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event, challenges the term in even stronger ways, a point we will investigate later. Disaster, of course, implies disruption, or in language approved 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. 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 $13 billion in economic loss.4 The same year, Cyclone Phailin raked through the Indian state of Odisha, demolishing hundreds of thousands of homes and affecting 9 million people; the storm also destroyed paddy crops worth hundreds of

Vulnerability’, in Havidán Rodrìguez, Enrico L. Quarantelli & Russell R. Dynes (eds), Handbook of Disaster Research (New York, Springer, 2006), pp. 113 – 114; (quoting Enrico L. Quarantelli, ‘Disaster Prevention and Mitigation in Planning and Implementing in Composite Country’ 18 (1990) (“[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, Nov. 16, 2013, available at http://www.economist.com/news/leaders/21589883-responding-disasteressential-so-preparing-next-stress-test (noting fatalities); Annual Global Climate and Catastrophe Report: Impact Forecasting – 2013 (Impact Forecasting, 2014) p. 4, Exhibit 1, available at http://thoughtleadership.aonbenfield.com/Documents/20140113_ab_if_annual_climate_catastrophe_report. pdf. (noting economic impact).



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millions of dollars. 5 Viewed over many years, the losses are almost hard to imagine. Between January 1975 and October 2008, and excluding epidemics, the International Emergency Disasters Database EMDAT recorded 8,866 events killing 2,283,767 people.6 Of course, natural disasters strike Northern countries too. In the spring of 2013, hammering rains caused massive flooding across Germany, Austria, and East-Central Europe. At least 21 lives were lost and economic damage totaled $22 billion.7 The year before, Hurricane Sandy swept through the northeastern United States, killing 159 people and causing $65 billion in economic loss.8 The data reveal how fatalities in the South dwarf fatalities in the North and how economic loss in the North so often exceeds, in absolute terms, similar loss in the South. 9 In terms of public safety, the difference in fatalities shows how much higher the stakes are in the developing world. But economic risk is also higher in the South, since even comparatively small losses in a poor country can represent a significant share of its GDP.10 In January 2005, government officials from around the globe met in Kobe, Japan, to discuss disaster preparation and response. By an odd coincidence, only days before, an 5

‘Cyclone Phailin hits 90 lakh people; 23 dead, lakhs of homes damaged’, Times of India, 13 October 2013: http://timesofindia.indiatimes.com/india/Cyclone-Phailin-hits-90-lakh-people-23-dead-lakhs-ofhomes-damaged/articleshow/24102125.cms. 6 United Nations International Strategy for Disaster Reduction Secretariat (UNISDR), ‘Global Assessment Report on Disaster Risk Reduction: Risk and Poverty in a Changing Climate (2009), available at http://www.preventionweb.net/english/hyogo/gar/report/index.php?id=9413.. 7 ‘Europe Flood Kills at Least 21’ CBS News, 9 June 2013: http://www.cbc.ca/news/world/europe-floodskill-at-least-21-1.1384993 (noting fatalities); Annual Global Climate and Catastrophe Report: Impact Forecasting – 2013 (Impact Forecasting, 2014) p. 4, Exhibit 1, available at http://thoughtleadership.aonbenfield.com/Documents/20140113_ab_if_annual_climate_catastrophe_report. pdf. (noting economic impact). 8 See Hurricane Sandy Rebuilding Taskforce, ‘Hurricane Sandy Rebuilding Strategy: Stronger Communities, A Resilient Region’ (Aug. 2013) available at http://portal.hud.gov/hudportal/documents/huddoc?id=hsrebuildingstrategy.pdf. 9 See generally, (UNISDR), Risk and Poverty in a Changing Climate. 10 Ibid. p 7 (concluding, “poorer countries have disproportionately higher mortality and economic loss risks, given similar levels of hazard exposure”).



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enormous earthquake off the west coast of Sumatra had triggered the devastating Asian tsunami that battered the coasts of eleven countries and killed more than 225,000 people. At that international meeting, called the World Conference on Disaster Reduction, all UN member states agreed to reduce disaster loss by strengthening the resilience of nations and communities at risk. The conference produced an early warning system to identify coastal threats and proposed an ambitious framework to reduce disaster risk throughout the world. 11 Called the Hyogo Framework for Action (HFA), (named after the prefecture in which Kobe is located), the agreement lays out expectations for the world's disaster initiatives through 2015 and charges the United Nations International Strategy for Disaster Reduction (UNISDR) to oversee implementation.12 Climate change should be discussed against this backdrop. According to the IPCC the effects of climate change are already occurring “on all continents and across the oceans.”13 Observed “climate-related extremes” include “heat waves, droughts, floods, cyclones, and wildfires.” 14 The IPCC finds that “[f]or countries at all levels of development, these impacts are consistent with a significant lack of preparedness for current climate variability in some sectors,” adding that the impacts of climate-related

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See Daniel A. Farber, Jim Chen, Robert R.M Verchick and Lisa Grow Sun (eds), Disaster Law and Policy, ( Philadelphia, Aspen Publishers, 2015) (forthcoming). 12 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 Report of the World Conference on Disaster Risk Reduction, January 2005, Kobe, Japan http://www.unisdr.org/files/1037_hyogoframeworkforactionenglish.pdf. 13 C.B Field,., V.R. Barros, D.J. Dokken, K.J. Mach, M.D. Mastrandrea, T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. Girma, E.S. Kissel, A.N. Levy, S. MacCracken,, P.R. Mastrandrea, and L.L. White (eds.), IPCC, 2014: Summary for policymakers. In: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (New York: Cambridge University Press, 2014).https://ipcc-wg2.gov/AR5/images/uploads/IPCC_WG2AR5_SPM_Approved.pdf, p. 6. 14 Ibid. p.7.



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hazards on the poor are particularly devastating.15 The need to adapt to these impacts is crucial. The IPCC defines climate change adaptation as “the adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects.”16 The IPCC recognizes that climate impacts have occurred and are continually occurring; it presumes that many of these trends will inevitably continue to some degree, independent of our efforts to reduce greenhouse gases (“mitigation”). Adaptation aims to lessen the magnitude of these impacts through proactive or previously planned reactive actions. As the IPCC states, “[M]itigation will always be required to avoid ‘dangerous’ and irreversible changes to the climate system. Irrespective of the scale of mitigation measures that are implemented in the next 10–20 years, adaptation measures will still be required due to inertia in the climate system.” 17 Or, as President Obama’s science advisor, James Holdren, explains, “We must avoid the climate impacts we can’t manage and manage the climate impacts we can’t avoid.”18 B.

Linking Disaster Policy to Climate Policy

Global law and policy on climate change and disaster management has reached a critical juncture. At the conclusion of 2013, the Warsaw International Mechanism for Loss and Damage (Warsaw International Mechanism or WIM) became part of the 15

Ibid. p. 6-7. Martin Parry, Osvaldo Canziani, Jean Palutikof, Technical Summary. Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (New York: Cambridge University Press, 2007) available at http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_wg2 _report_impacts_adaptation_and_vulnerability.htm (follow “Technical Summary” hyperlink). 17 Ibid available at http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_wg3 _report_mitigation_of_climate_change.htm (follow “Chapter 1: Introduction” hyperlink ). 18 James Holdren, Assistant to the President for Sci. and Technology and Dir. of the White House Office of Sci. and Technology Policy, ‘Remarks at the National Climate Adaptation Summit,’ Washington, D.C. (May 25, 2011) (notes on file with the authors). 16



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international climate change regime, reinforcing the link between DRR and CCA. 19 While nations under the UNFCCC begin work under WIM, negotiations continue within disaster policy circles to realize a successor to the HFA.20 Recent developments in both the international climate change and disaster regimes suggest increased alignment between DRR and CCA. Indeed, since the adoption of the Bali Action Plan in 2007 there have been attempts within the climate regime to characterize the issue of linkage between DRR and CCA.21 The relationship between climate change and disaster management raises themes important to this book. Central to the “North-South Divide,” is the complaint that increased standards of living in the North derive from environmental destruction in the South. For more than a century, the North has pumped carbon dioxide into the atmosphere beyond its “fair share,” but the nations most stressed about famine and flood are in the South. Global development has always been about insulating communities from the vagaries of nature (disease, poor harvests, and, of course, natural disasters), but global warming amplifies the moral and economic dimensions.22 Climate change also feeds into the tension between global and local action. For understandable reasons, the North’s central focus has been to reduce carbon emissions on a global scale, while the South 19

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 (Warsaw International Mechanism)). 20 UNISDR, ‘Hyogo Framework for Action 2005 – 2015.’ 21 Report of the Conference of the Parties on Its Thirteenth Session, Held in Bali from 3 December to 15 December 2007 – Addendum – Part Two: Action Taken by the Conference of the Parties at Its Thirteenth Session, UN Doc FCCC/CP/2007/6/Add.1 (14 March 2008) Decision 1/CP.13. For further background see, Lisa Schipper, ‘Meeting at the crossroads? : Exploring the linkages between climate change adaptation and disaster risk reduction’ Climate and Development 1:1 (2009), 16 – 30 at 20; Maarten K. Van Aalst, ‘The impacts of climate change on the risk of natural disasters’ Disasters (2006) 30(1), 5 – 18. 22 Robert R.M. Verchick, ‘Adaptation, Economics, and Justice', in David M. Driesen (ed.), Economic Thought and U.S. Climate Change Policy (Cambridge: The MIT Press, 2010), p. 277.



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emphasizes the more local and immediate needs of energy production and climate resilience. The global perspective highlights the significant inequalities between affluent and poorer countries, but that focus also helps conceal substantial inequalities within nations (both rich and poor). Thus social vulnerability at the regional and local level demands much more attention than it is receiving. Addressing adaptation and disaster management together offers several advantages. Most obviously, it is more efficient to double up when the risks imposed by climate change and natural disasters take the same form. Governments and civil society groups already have disaster management structures in place with attendant legal authorities, staff, lines of communication, and channels of distribution. 23 Social and family networks have also developed strategies for reducing and responding to disaster emergencies. Integrating adaptation into this infrastructure is easier than starting from scratch. Much of the conceptual work in modern disaster management, the product of decades of study, also transfers readily to adaptation. In addition, merging the two fields helps appeal to a wider range of culture-based values. For instance, the importance of better disaster management has always been obvious to those in the monsoon belt or the quake-prone Himalaya, but global efforts to reduce the risks of “ordinary” natural disasters (those not previously associated with climate change) have never matched the need. The focus on “climate” disasters, however, appears to be changing the conversation in the North by tapping into values beyond sympathy. When an earthquake kills thousands in Pakistan, it is hard to say that policies 23

See, e.g., Farber, Chen, Verchick, & Sun, Disaster Law and Policy; (describing disaster management structures in the United States); see also, U.N. International Strategy for Disaster Reduction, PreventionWeb: Countries and Region, available at http://www.preventionweb.net/english/countries/ (offering information about national disaster management structures in countries throughout the world).



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in the North contributed to that misery; but when an island sinks in the Bay of Bengal, the link is direct. The fact that global warming is also threatening lives and treasure in the North further pulls the South into the North’s circle of concern.24 This gives leverage for Southern countries to demand more in the way of disaster risk reduction.25 On the flip side, the traditional disaster-management concerns of poorer nations help residents in vulnerable areas to see the value of focusing on climate change. The vegetable farmer in Kerala may know nothing about the “450 ppm” threshold,26 but she can tell you how late the monsoon was this year and what it means for her harvest. Social scientists tell us that such “back-loop learning” helps communities understand and address new versions of old threats. 27 Finally, the traditional disaster-management perspective emphasizes the importance of localized knowledge, participation, and buy-in. It is said that the first “first responders” are always the affected residents. This insight can help expand the role for local contributions in adaptation policy. However, there are challenges in linking adaptation to disaster-risk reduction. The most obvious is that their circles of concern do not exactly match. Not all natural disasters are linked to climate change (earthquakes being the classic example). And not all climate impacts are natural disasters. Disaster usually implies a sudden change, an 24

Verchick, ‘Adaptation, Economics, and Justice’, p. 289-290, (describing how the global economy requires participation of the South to meet goals of the North, including the goal of reducing carbon emissions). 25 Ibid. 26 An average global carbon dioxide reading of 450 parts per million (ppm), is seen by many climate experts as the maximum level compatible with limiting the damage from climate impacts to a tolerable degree. See Justin Gillis, ‘Heat Trapping Gas Passes Milestone, Raising Fears’, NEW YORK TIMES, 10 May, 2013,http://www.nytimes.com/2013/05/11/science/earth/carbon-dioxide-level-passes-long-fearedmilestone.html?pagewanted=all. In the spring of 2013, the earth’s average carbon dioxide reading surpassed 400 ppm. Ibid. 27 Sarah O. Reed, Richard Friend, Vu Canh Toan, Pakamas Thingphanga, Ratri Sutarto and Dilip Singh, ‘‘Shared Learning’ For Building Urban Climate Resilience – Experiences From Asian Cities,’,(2013) 25(2) Environment and Urbanization 393 – 412.



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outsize scale, and an overwhelming impact. However, many climate effects will unroll slowly and incrementally such as rising seas or species extinction; they will challenge, but not always overwhelm existing systems. At a time when much global assistance is flowing toward adaptation, advocates of traditional disaster management will find themselves competing with other non-disaster-related adaptation goals. A second challenge involves predictability. Before the era of global warming, disasters like storms and floods followed general historical patterns. Assigning probabilities to events of defined magnitudes was something experts became relatively good at. Over time local people developed workable understandings of such risks and prepared for them; with assistance from scientists and engineers, their efforts were further sharpened. But global warming has changed all this. The uncertainties involved in the climate process make many forms of prediction dubious. We know the future will not follow the wheel-ruts of the past. For this reason, experts in climate adaption warn against using probabilities and predictions. They instead speak of “projections,” “multiple scenarios,” and “adaptive management.” This reflects a different way of thinking that is only now becoming familiar to policy makers. Modeling scenarios (and scaling them to specific regions) requires technical skill, terabytes of data, and enormous computing power. In the field, it means implementing responses that are monitored, adjustable, and informed by local judgments of acceptable risk. Adaptation projects therefore stress landuse planning and often prefer dynamic “green” infrastructure (like barrier islands and



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mangrove forests) to static “gray” infrastructure (like seawalls and dikes).28 This sort of resilience requires efforts that are both top-down and bottom-up.

C.

Two Critical Issues: Group Responsibility and Local Vantage

The frameworks addressing climate change and disaster risk each have strengths potentially beneficial to the other. In particular, we think that notions of causation and group responsibility found in international climate policy are important for understanding the future of disaster planning in the era of climate change. Similarly, we believe the emphasis in DRR policy upon local action and socio-economic conditions can inspire the next wave of adaptation efforts. We introduce these two critical issues below. After a brief examination, we then turn to the case studies. 1.

Group Responsibility

Global Warming is driven by natural forces and by human ones, but there is little doubt we humans are responsible for the lion’s share—about 74%, by some estimates.29 And while large developing countries like China and India are swiftly increasing their carbon output, it remains true that the largest historical contributions to the greenhouse effect have come from the Global North.30 If we make a list of the largest historical contributors per citizen not a single poor country breaks into the top ten.31 For this reason, the UNFCCC directed industrialized nations early on to take the 28

For a discussion of green infrastructure as a means of reducing disaster risk in the developing world, see Robert R.M. Verchick, Facing Catastrophe: Environmental Action for a Post-Katrina World (Cambridge: Harvard University Press, 2010), p.25-37. 29 See Quirin Schiermeier, ‘At least three-quarters of climate change is man-made’, Nature, 4 December, 2011 - http://www.nature.com/news/at-least-three-quarters-of-climate-change-is-man-made-1.9538. 30 See Duncan Clark ‘Which nations are most responsible for climate change?’ , The Guardian, 22 April 2011 - http://www.theguardian.com/environment/2011/apr/21/countries-responsible-climate-change. 31 Ibid.



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lead in reducing emissions and addressing climate impacts. Through the legal framework, developed nations agreed to provide financial and technical support to developing nations to help them reduce carbon emissions and adapt to climate-induced hazards. 32 Legal hooks were carved from the foundational “polluter pays principle” and the doctrine of “transboundary harm,” under which a polluting state is held responsible for damage caused to its neighbors.33 The legal framework is based on the principle of “common but differentiated responsibilities and respective capabilities” (CBDR/RC), 34 a widely accepted notion that a state’s duty toward global environmental sustainability should be proportionate to its contribution to a given problem and its capacity to address it. To use a dichotomy associated with political philosopher Judith Shklar, climate disruption, as experienced by the Global South, is not a blameless “misfortune,” but a blameworthy “injustice.”35 And that requires a sincere attempt to make the injured party whole. In contrast to climate-induced hazards, international law treats natural disasters like garden-variety misfortune. At the root is a desire for charity well-spent. As policy analysts, M.J. Mace and Michiel Schaeffer write, The motivation for DRR . . . and the Hyogo Framework is to reduce environmental, human and economic losses from natural disasters, and the costs of humanitarian assistance in responding to disasters, by encouraging impacted countries to take greater responsibility for reducing their pre 32

See M.J. Mace and Michiel Schaeffer , Loss and Damage under the UNFCCC. What relationship to the Hyogo Framework ? - http://www.lossanddamage.net/download/7248.pdf. 33 Ibid., at p. 2. 34 For a broader discussion of CBDR/RC in the context of climate change law see, Lavanya Rajamani, Differential Treatment in International Environmental Law (Oxford: Oxford University Press, 2006); Sumudu Atapattu, ‘Climate Change, Differentiated Responsibilities and State Responsibility; Devising Novel Legal Strategies for Damage Caused by Climate Change, in BJ Richardson, Y Le Bouthillier, H McLeod-Kilmurray and S Wood (eds.) Climate Change Law and Developing Countries: Legal and Policy Challenges for the World Economy (Northampton: Edward Elgar Publishing, 2009), pp. 37 – 62 35 See Judith N. Shklar, The Faces of Injustice 50 ((New Haven: Yale University Press, 1990).) p. 50. For a discussion of Shklar’s “misfortune/injustice” thesis in the context of natural disaster, see Robert R.M. Verchick ‘Disaster Justice: The Geography of Human Capability’, (2012) 24 Duke Environmental Law & Policy Forum 23, 27-29.



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disaster vulnerability and exposure to hazards - to move to a “prevention culture.” These approaches also encourage self-reliance and greater reliance on national resources to facilitate recovery.”36 Reduced loss, more self-reliance, and a smarter “prevention culture” are terrific goals. But the HFA envisions a world where the worst hazards are traceable either to natural forces or to a state’s own failure to plan. Thus, while the HFA strongly encourages international cooperation, the document makes it clear that “each State has the primary responsibility for its own sustainable development and for taking effective measures to reduce disaster risk.” 37 The HFA focuses mainly on the deployment of a state’s own resources, institutions, and existing revenue streams.

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While the DRR regime

contemplates hazards arising from “climate change,” its use of that term (in contrast to that of the UNFCCC) includes both natural and anthropogenic causes.39 Otherwise, risks caused by human action beyond national borders are not addressed at all.40 Aid from other countries depends on voluntary contributions based on what geographer Mark Pelling calls a “flexible commitment, largely based on self-regulation and trust.”41 While the idea makes sense for at least many kinds of natural disasters, it loses traction in an era in which blameworthy carbon dioxide emissions have been raising the seas, swelling the rivers, and baking the fields in provinces all over the world. As we will see in Part II, it is this debate over misfortune and injustice that is bogging down 36

See Mace and Schaeffer, Loss and Damage under the UNFCCC. What relationship to the Hyogo Framework ? 37 Framework for Action 2005 – 2015: Building the Resilience of Nations and Communities to Disasters , III A(b), (emphasis added). 38 See Mace and Schaeffer, Loss and Damage under the UNFCCC. What relationship to the Hyogo Framework? 39 Ibid. 40 Ibid. 41 Mark Pelling, Adaptation to Climate Change From Resilience to Transformation (Abingdon: Routledge, 2011), p. 44. Also see, see Lisa Schipper and Mark Pelling, ‘Disaster risk, climate change, and international development, scope for, and challenges to integration’ (2006) 30(1) Disasters, 19 – 31



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current efforts to integrate DRR and CCA. 2.

Local Vantage

The issues of causation and responsibility were highlighted by the Global South during the formative stages of climate negotiations and despite being largely unresolved in the UNFCCC, they remain critical elements to a global resilience strategy. DRR has something to teach CCA advocates as well—namely that effective policy must take the right vantage point. International efforts to curb GHGs understandably began with a global perspective in mind. They came from everywhere; they went everywhere; and each unit of a given gas (carbon dioxide, methane) was fungible. Policy was shaped at the international level then kicked down to the national and local governments. The UNFCCC acknowledged the need for adaptation strategies from the very beginning, but took several years to produce specific programs. Today, there are special assistance funds to help least developed countries draft adaptation plans, support local resilience projects, preserve important ecosystems, and aid coastal zone planning.42 But the programs, which intersect mainly at the national level, are not very effective at harnessing energy at the local level. They are also severely underfunded. In contrast, the DRR regime has primarily been driven by a “bottom up” approach. Disaster is recognized at the point of impact and in that sense is localized. It follows that disaster policy is an example of bottom up policy building that moves in upward direction from the local to national and then international levels. 43

The

arrangement arises partly from the assumption, discussed above, that natural disasters are 42

See Verchick, ‘Adaptation, Economics, and Justice’, p.280-281. IPCC, IPCC WGII AR5 Summary for Policymakers, ‘Climate Change 2014: Impacts, Adaptations, and Vulnerability’ available at https://ipccwg2.gov/AR5/images/uploads/IPCC_WG2AR5_SPM_Approved.pdf, 427 43



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inherently domestic affairs but the local vantage comes also from the recognition that response and recovery, to be effective, demand planning and implementation at the local level. The UNISDR has thus had a hand in incorporating disaster response information in grade school curricula in Kazakhstan, in building risk reduction into regional planning budgets in Nigeria, and in lifting villagers out of poverty in the low-lying river basins of Vietnam.44 This last example—lifting villagers out of poverty—points to another aspect of the bottom-up point of view, namely that a community’s risk to disasters is a product of both physical exposure and social vulnerability. Indeed, factors contributing to social vulnerability—poverty, low literacy, racism, sexism, and the like—can contribute as much to a community’s disaster risk as any geological or hydrological feature.45 Whilst the UNFCCC does recognize that poverty alleviation is an overriding priority for countries in the Global South it fails to provide any meaningful detail on how to continue economic development in the context of climate vulnerability, risk and resilience. One reason is that poverty and related ills belong to other offices in the U.N. family. Bureaucracies lend themselves to specialized subdivisions, and integration is hard. A second, more substantive reason is that taking on social vulnerability would involve yet another discussion of causation and responsibility. How, after all, does one decide what share of a developing country’s climate vulnerability is attributable to GHG emissions and what share is attributable to indigence? And what responsibility, if any, do countries 44

See. Farber, Chen, Verchick, & Grow Sun, (eds.), Disaster Law and Policy (Chapter 9). See Verchick, ‘Facing Catastrophe’, pp. 111-16; Generally see, Kristen Dow, Frans Berkhout, Benjamin L Preston, Richard J T Klein, Guy Midgley and M Rebecca Shaw, ‘Commentary: Limits to Adaptation’ (2013) 3 Nature Climate Change, 305 – 307; W Neil Adger, Suraje Dessai, Marisa Goulden, Mike Hulme, Irene Lorenzoni, Donald R Nelson, Lars Otto Naess, Johanna Wolf and Anita Wreford, ‘Are there social limits to adaptation to climate change?’ (2009) 93 Climatic Change, 335 – 354.

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in the Global North have for conditions of poverty in the Global South? The line between misfortune and injustice is fading quickly.

To sum up, we have briefly outlined the similarities and differences between disaster-risk management and climate resilience, both conceptually and as envisioned in law. Among the many differences between these two regimes, we have emphasized two that we think will play a critical role in the Global South: group responsibility and local vantage. Group responsibility, which derives from the climate regime, stresses the obligation that the Global North owes to the Global South because of its disproportionate historical contribution to climate change. Local vantage, which derives from the disastermanagement regime, stresses the viewpoint of communities that experience the direct effects of storms, floods, and droughts. The idea stresses the need for local engagement as well as the broader reality of social vulnerability. Both concepts are important to developing countries eager to move forward on climate resilience. To show the specific role that each concept can play, we turn now to two case studies, one involving the global policy making stage, the other the diamond-polishing capital of India. II. “Loss and Damage” under the UNFCCC The most recent battle on group responsibility is now taking place over the issue of “loss and damage” under the UNFCCC. Under the Warsaw International Mechanism or WIM, established in 2013, parties agreed to integrate DRR and CCA to “address[] loss



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and damage associated with climate change adding that loss and damage... in some cases involves more than that which can be reduced by adaptation.”46 The issue of “loss and damage” had long been pursued by the Global South. During the negotiations of the UNFCCC, for instance, the Alliance of Small Island States (AOSIS) had proposed an international insurance scheme to “compensate the most vulnerable small-island and low-lying coastal developing countries for loss and damage arising from sea level rise.”47 At the time it was clear that the issue of vulnerability and responsibility were at play. Contributions to an assistance fund were to be determined on the basis of nations’ contribution to global warming and their relative economic strength. Funding under the insurance scheme was to apply to adverse impacts from sea level rise that exceeded reasonable adaptation efforts of the “most vulnerable small-island and low level developing countries.”48 The acknowledgement of DRR has added a significant element of complexity to the overall debate on loss and damage particularly with regard to the issue of responsibility. It has prompted the Global North to discuss loss and damage within the parameters of DRR . The potential to divert the conversation outside the purview of climate change law and policy was evident in the negotiations following the 18th 46

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 see, Kristen Dow and Frans Berkhout Climate change, Limits to Adaptation and the ‘Loss and Damage’ Debate March 13, 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? http://www.lossanddamage.net/download/6877.pdf, 6-7. 47 Intergovernmental Negotiating Committee (INC) for a Framework Convention on Climate Change (FCCC), Fourth session, 9-20 December 1991, Geneva, Switzerland Report of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change on the work of its fourth session, held at Geneva from 9 to 20 December 1991 at p 127. 48 Mace and Schaeffer, Loss and Damage under the UNFCCC. What relationship to the Hyogo Framework ? .



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Conference of the Parties to the UNFCCC (COP-18)49 and in the lead up to the WIM. The Global South was adamant that the institutional arrangements mentioned in the COP18 decision take the form of a new international mechanism that provided support to vulnerable developing countries in minimizing the impacts of loss and damage especially in the form of more frequent and severe weather events as well as the progressive loss and damage caused by slow onset events.50 By contrast, the Global North maintained that a new, specific international mechanism was unnecessary and that the concerns of countries vulnerable to adverse impacts and therefore loss and damage could be adequately addressed under the existing disaster risk reduction frameworks, institutions and processes, namely the UNISDR and HFA, that are located outside the UNFCCC –.51 For example the United States opposed the inclusion of loss and damage in the climate change regime on a number of grounds including that the issue is adequately represented in DRR instruments and that national response measures were sufficient thereby negating the need for an international approach. 52 The European Union asserted that the gap between DRR and CCA needed to be bridged and that, “assessing the risk of loss and damage associated with the adverse impacts of climate change should be seen in the 49

Report of the Conference of the Parties on Its Eighteenth Session, Held in Doha from 26 Novemeber to 8 December 2012 – Addendum – Part Two: Action Taken by the Conference of the Parties at Its Thirteenth Session, UN Doc FCCC/CP/2007/6/Add.1 (14 March 2008) 50 Submission by Nauru on behalf of AOSIS, FCCC/SBI/2012/MISC.14; Submission by Gambia in behalf of the LDCs. FCCC/SBI/2011/MISC.8; More generally, See Subsidiary Body for Implementation, ThirtySeventh Session, Doha, (26 November to- 1 December,), Views and information from Parties and relevant organizations on the possible elements to be included in the recommendation of loss and damage in accordance with decision 1/CP.16 (8 October 2012). 51 See - Subsidiary Body for Implementation, Thirty Fifth Session, Durban, 28 November to 3 December 2011, Views and information on the thematic areas in the implementation of the work programme, Item 8 of the provisional agenda, Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity (14 November 2011) - http://unfccc.int/resource/docs/2011/sbi/eng/misc08a01.pdf> 52 Roda Verheyen, Tackling Loss and Damage – A New Role for the Climate Regime? http://www.lossanddamage.net/download/6877.pdf, p. 6-7.



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broader context of disaster risk management, where interventions pertain to reducing the risk, anticipating the risk and responding to it as well as interventions to recover from impacts.”53 The Global South has argued that such submissions reflect the propensity of the Global North to continually deflect questions of responsibility.54 It is claimed that the inclusion of references to DRR in documents dedicated to CCA such as the Cancun Adaptation Framework and promotion of the HFA has come at the insistence of the Global North and is a deliberate tactic to move the discussion out of the context of climate change and into that of disaster policy.55 The object is to neutralize the issue of state responsibility that still underlies the relationship between the Global North and South in the climate change context. Mace and Schaeffer note that some nations of the Global South view the attempt to relocate the discussion of loss and damage into a different international framework as severing “the causal link between emissions and impacts” and thereby placing “responsibility on countries to find ways to reduce their own vulnerabilities, using their own resources.”56 The South may be right. The HFA, as noted before, has no way of accounting for human causation, pollution spillovers, or group culpability. It anticipates no role for the polluter pays principle, transboundary harm, or CBDR/RC. If climate hazard is a matter of injustice rather than misfortune, it makes more sense to integrate DRR into CCA and not the other way around. The global discussion of “loss and damage” is an example, in 53 54

Subsidiary Body for Implementation, Approaches to address loss and damage. Mace and Schaeffer, Loss and Damage. under the UNFCCC. What relationship to the Hyogo Framework

?

55 56



Ibid. Ibid.

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our eyes, of integration between disaster resilience and climate resilience going wrong. That is because influential parties in the North are underestimating (or willfully ignoring) the importance of responsibility and justice that underlies all climate change issues. However there is also potential for integration to go right. Adaptation efforts under the UNFCCC have arguably failed to reach their potential in part because they are poorly funded and do not adequately engage the local community. The challenge is immense. Yet some private foundations have begun experimenting with pilot projects across the developing world to see how true climate resilience might take root. Many of these projects are informed by basic teachings in DRR literature which emphasize local networking and social and economic conditions in the community. Were adaptation efforts under the UNFCCC to integrate these lessons, the result might be a more community-based model such as the one described below. III.

Surat, India

Perhaps no country in the world is as vulnerable on so many fronts to climate change as India. With 7,000 kilometers of coastline, the vast Himalayan glaciers, and nearly 70 million hectares of forests, India is especially vulnerable to a climate trending toward warmer temperatures, erratic precipitation, higher seas, and swifter storms. Then there are India’s megacities (housing nearly a quarter of the population, many of them living in slums), where all of these trends conspire to threaten public health and safety on a grand scale—portending heat waves, drought, thicker smog layers, coastal storms, and blown-out sewer systems. These problems will surely grow as rural populations displaced by negative climate effects migrate into the cities, overwhelming critical services related to health, transportation, housing, energy, and water. When experts rank countries in



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terms of population centers most exposed to extreme weather events (like droughts and floods) or the hazards of sea-level rise, India is always at the top of the list.57 Yet, in the midst of these grim facts, there are glints of hope, as in a recent resilience project taking place in Surat. Surat, a medium-sized Indian city of 4.5 million people, is a global center for textile production and diamond polishing. 58 Eighty percent of the diamonds sold in jewelry shops around the world are shaped by Surati hands. Nearly every Indian has something in their wardrobe from Surat—which is what one would expect from a city whose clattering looms churn out 30 million meters of fabric a day.59 The city lies 250 kilometers north of Mumbai, near the Arabian Sea. Its proximity to the Tapti River delta—a strategic advantage in trade—also makes Surat a flood magnet. In the last 20 years, the city has been affected by three major floods caused by emergency releases from an upstream dam. Lesser floods, caused by hard rains, occur more frequently. In 1994, such a flood led to an outbreak of the plague.60 In addition, tidal surges moving up the mouth of the Tapti River threaten the city from the opposite direction. Even on calm days, high tides push salt water into parts of the river needed for drinking. All of these

57

See, e.g., U.N. Office for the Coordination of Humanitarian Affairs, ‘Global: Twelve Countries on Climate Change Hit-List’, IRIN News, 8 July 2009, available at http://www.irinnews.org/report/85179 (citing a World Bank study that ranks India as among the countries that are most vulnerable to droughts, floods, and agricultural disasters, which are all linked to climate change); see also Stephane Hallegatte, Colin Green, Robert J. Nicholls and Jan Corfee-Morlot, ‘Future flood losses in major coastal cities’ (2013) 3 Nature Climate Change 802–806 (ranking Mumbai, India, as the fifth most vulnerable city, in terms of material assets at risk to sea-level rise). 58 G K Bhat, Anup Karanth, Lalit Dashora and Umamaheshwaran Rajasekar, ‘Addressing flooding in the city of Surat beyond its boundaries’ (2013) 25(2) Environment and Urbanization, pp. 429 – 441; Surat City Resilience Strategy April 2011; ACCRN, Climate Resilient Urban Development: Vulnerability Profiles of 20 Indian Cities 2013; 59 Surat City Resilience Strategy, April 2011, p. 14. 60 See A.K. Dutt, R. Akhtar, M. McVeigh, ‘Surat Plague of 1994 Re-Examined’, (2006) 37 Southeast Asian Journal of Tropical Medicine and Public Health, 755.



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problems will be aggravated by climate change, due to stronger downpours and rising seas. For these reasons, Surat has developed an urban “resilience strategy,” focused on adapting to climatic change.61 The initiative is supported by the Asian Cities Climate Change Resilience Network (ACCCRN), an organization funded by the Rockefeller Foundation. With the help of outside experts, the city has assessed the climatic risks in relation to flood management, energy, and public health. The city is implementing a new early warning system for major floods and designing an inflatable dam to protect the river from saltwater intrusion. Much of this work has been accomplished through a flexible and relatively loose network of public officials, business people, and community members organized around one compelling goal: climate resilience. But that goal serves an array of interests. The political and business communities were concerned about trade and economic growth, which were threatened by downtown floods. The public health community, still haunted by its experience with the plague, was committed to cleaning the streets and delivering potable water. And everyone, most notably those in the poor and working classes, wanted housing that would not wash away with the next monsoon. Addressing climate impacts, it must be noted, were not anyone’s first priority. But when ACCCRN announced its interest in funding projects pursuing that goal, city managers were savvy enough to jump at the chance. While not without their flaws, Surat’s efforts are considered one of the success stories of urban adaption projects in Asia. Integrating climate resilience into everyday governance requires effective networking and a solid legal framework—features that were previously referred to as 61



See Surat City Resilience Strategy April 2011, p. 11.

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“rope lines” and “footholds.”62 “Rope lines” describe the formal or informal relationships among public and private actors at various levels of jurisdictional boundaries (national, regional, local) and across given sectors (public health, agriculture, energy, and so on).63 The relationships can be described as vertical (related to level of jurisdiction) or horizontal (related to sector).64 “Footholds” describe existing policies or laws that may be used to “anchor” new initiatives related to climate adaptation.65 The climate resiliency initiatives in Surat, illustrate the importance of vertical rope lines. Developing a municipal warning system for river-based floods proved challenging because the events were triggered by planned releases from a dam in a neighboring state. 66 Negotiating the plan took years and involved local leaders, state water management offices, and participation from India’s central government. Other adaptation efforts also relied on existing land-use authorities (“footholds”) to reconfigure street drainage and public health laws to support its efforts in protecting drinking water from saltwater intrusion. All of this is overseen by a recently-created municipal climate adaptation council—a horizontal “rope line,” whose participants include representatives from city government, the local chamber of commerce, and public health advocates.67 Additional horizontal networking came about through experiences of “shared learning.” Shared learning emphasizes the role of local actors in complex adaptive systems. By involving community members early in the process and actively facilitating 62

See Robert R.M. Verchick and Abby Hall, ‘Adapting to Climate Change while Planning for Disaster: Footholds, Rope Lines, and the Iowa Floods’, (2011) 6 Brigham Young Universuty (BYU) Law Review. 2203. 63 Ibid. at 2204-2205. 64 Ibid. at 2210-2211. 65 Ibid. 66 Ibid. at 2236-2237. 67 Ibid. at 2235.



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planning and communication strategies, the method “promote[s] learning and coproduction of knowledge; build[s] new formal and informal networks across scales and sectors; build[s] capacities of stakeholders for analysis and self-representation; and spark[s] innovative responses to problems.” 68 There is also more of a chance that outcomes will be “socially just.”

69

But social learning demands more than an

organizational template or policy “tool kit.” It requires high levels of involvement not only from residents, but also from sponsors and facilitators. Techniques in social learning, described above, can help communities identify vulnerabilities and develop practical solutions. Some municipalities are also taking advantage of new technological tools, like GIS mapping.

As part of its climate

vulnerability assessment, the city of Surat used a combination of household interviews, hydrological data, and GIS mapping to create a “vulnerability and capacity” index for the city’s neighborhoods. The index combined data on physical vulnerabilities like flood risk and sewer backups with social vulnerabilities, measured in terms of income, education, and social cohesion. The highlighted risk in slums and low-income neighborhoods prompted several proposals, including a computer database of vulnerable households, stronger building codes in poor areas, and community banks where flood-prone households can protect valuable goods.70 But Surat’s experience raises a cautionary note. One of the city’s most dramatic efforts to reduce flood risk involves the relocation of slums, many of which are located along tidal creeks, river banks, or drainage lines. Over the last decade, Surat moved tens 68

Reed Friend, Toan, Thinphanga, Sutarto, and Singh, ‘ SharedLearning, 393-412. Ibid. 70 Bhat, Karanth, Dashora and Rajasekar ‘Addressing flooding in the city of Surat beyond its boundaries’,, 11. 69



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of thousands of families from flood-prone slums to townships in safer parts of the city.71 Similar efforts are planned for the future. But these townships, sometimes located several kilometers away, lack the work opportunities and city services found in the urban core. Many residents are moving back and re-settling (illegally) in the flood plains, again increasing the city’s vulnerability index. IV. Conclusion Natural disasters and global warming compound pre-existing risks and present a double menace. Thus far, the international frameworks we use for regulating and combating these issues have lacked alignment. Integration is crucial, but not without deliberation. If integrating CCA into DRR means giving up notions of group responsibility—the leverage the South needs to win aid from the North—the marriage would be a failure. If CCA continued without learning lessons in local networking and social vulnerability from decades of DRR research, much potential good will have been lost. The question is not whether the policies of disaster resilience and climate resilience must align, but how, and in whose interest.

71



Surat City Resilience Strategy at 26.

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