The Role of International Environmental Law in Disaster Risk Reduction [1 ed.] 9789004318816, 9789004318809

Citation preview

The Role of International Environmental Law in Disaster Risk Reduction

International Environmental Law Volume 12

The titles published in this series are listed at brill.com/iel

The Role of International Environmental Law in Disaster Risk Reduction Edited by

Jacqueline Peel and David Fisher

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Peel, Jacqueline, editor. | Fisher, David,  editor. | Stanford University. Environmental & Natural Resources Law &  Policy Program, sponsoring body. Title: The role of international environmental law in disaster risk reduction  / edited by Jacqueline Peel and David Fisher. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: International  environmental law ; volume 12 | “The genesis for this book was a workshop  on “How Can International Environmental Law Reduce Disaster Risk?” held at  Stanford Law School on May 21–22, 2015 . . . sponsored by the Stanford  Environmental and Natural Resources Law and Policy Program . . .” — ECIP  Acknowledgments. | Includes bibliographical references and index. Identifiers: LCCN 2016006900 (print) | LCCN 2016007339 (ebook) | ISBN  9789004318809 (hardback : alk. paper) | ISBN 9789004318816 (E-book) Subjects: LCSH: Hazard mitigation—Law and legislation—Congresses. |  Environmental law, International—Congresses. | Climatic changes—Law and  legislation—Congresses. Classification: LCC K1980.A6 R65 2016 (print) | LCC K1980.A6 (ebook) | DDC  344.05/34—dc23 LC record available at http://lccn.loc.gov/2016006900 Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brill-open. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1873-6599 isbn 978-9004-31880-9 (hardback) isbn 978-90-04-31881-6 (e-book) Copyright 2016 by Jacqueline Peel and David Fisher. Individual copyright of each chapter lies with its author(s). Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgments ix Notes on Contributors xi 1 International Law at the Intersection of Environmental Protection and Disaster Risk Reduction 1 Jacqueline Peel and David Fisher

Part 1 The (Porous) Border between Disaster Law and Environmental Law 2 Climate Change and the Narrative of Disaster 29 Lisa Grow Sun 3 Disaster Law in the Anthropocene 49 Daniel Farber 4 A Capabilities Approach to Defining Climate Disasters 73 Rosemary Lyster 5 Resilient Incoherence—Seeking Common Language for Climate Change Adaptation, Disaster Risk Reduction, and Sustainable Development 101 Anne Siders 6 Disastrous Adaptation 127 Cinnamon P. Carlarne

Part 2 Using Environmental Law Tools for Disaster Risk Reduction 7 Disaster Risk Assessment: An Appraisal of European Union Environmental Law 153 Denis Edwards

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8 The Potential Role of International Environmental and Water Law to Prevent and Mitigate Water-Related Disasters 187 A. Dan Tarlock 9 Water Treaty Regimes as a Vehicle for Cooperation to Reduce Water-Related Disaster Risk: The Case of Southern Africa and the Zambesi Basin 212 Mary Picard 10 Valuing Foreign Disasters in International Environmental Law 248 Arden Rowell and Lesley Wexler 11 Liability and Compensation as Instruments of Disaster Risk Reduction? 266 Michael G. Faure

Part 3 Linking Institutions and Approaches in the Environmental and Disaster Risk Management Fields 12 The UN SDGs and Environmental Law: Cooperative Remedies for Natural Disaster Risks 301 Nicholas A. Robinson 13 International Frameworks Governing Environmental Emergency Preparedness and Response: An Assessment of Approaches 356 Carl Bruch, Rene Nijenhuis, and Shanna N. McClain 14 Preventing and Responding to Arctic Offshore Drilling Disasters: The Role of Hybrid Cooperation 392 Hari M. Osofsky, Jessica Shadian, and Sara L. Fechtelkotter 15 Overlapping International Disaster Law Approaches with International Environmental Law Regimes to Address Latent Ecological Disaster 420 Anastasia Telesetsky

Contents

16 Afterword: Environmental Disasters and Human Rights 453 John H. Knox Index 471

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Acknowledgments The genesis for this book was a workshop on “How Can International Environmental Law Reduce Disaster Risk?” held at Stanford Law School on May 21–22, 2015. The workshop brought together a group of experts and disaster risk practitioners from the United States, Europe, Australia and Africa to consider options and concrete proposals for integrating preventative environmental law approaches into disaster risk reduction. The workshop—the first of its kind to consider the growing intersection between international environmental law and disaster law—was sponsored by the Stanford Environmental and Natural Resources Law and Policy Program, with co-sponsorship provided by the American Society of International Law (International Environmental Law and Disaster Law Interest Groups), the International Federation of Red Cross and Red Crescent Societies, the United Nations Environment Programme (UNEP), the Stanford Journal of International Law, and the Stanford Program in International and Comparative Law. This book could not have come together without the willing and enthusiastic assistance of workshop participants who contributed chapters for the collection. We are most grateful to them. The book also draws on and incorporates the contributions of other participants at the workshop. We would particularly like to acknowledge the “real world” insights on disaster risk reduction in practice contributed by former Rear Admiral, U.S. Navy, David Titley; Chief of Disaster Risk Reduction at UNEP, Muralee Thummarukudy; and Chief of the Liaison Office of the United Nations Convention to Combat Desertification, Melchiade Bukuru. We would also like to thank Marie Sheldon and John Bennett at Brill Publishers for their strong interest in this project and their commitment to working with us to get the collection expeditiously into print. This collection comes at a key moment in the history of disaster risk reduction efforts as the topic gains increasing profile in the climate change regime and as part of the United Nation’s 2030 sustainable development agenda. The chapters in this volume consider the implications of this growing intersection, as well as tools and institutional approaches for forging better linkages between environmental law and disaster risk reduction. We believe that the volume will make a significant contribution to the literature and practice concerning disaster risk reduction, with utility for practitioners, lawyers, students

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and academics working across the fields of disaster risk management, climate change adaptation and sustainable development. Jacqueline Peel and David Fisher, editors November 2015

Notes on Contributors Carl Bruch is a Senior Attorney and Co-Director of International Programs at the Environmental Law Institute (ELI). He has helped countries and organizations throughout Africa, the Americas, Asia, and Europe develop and strengthen their environmental laws, improve institutions, and build capacity. He has worked on a range of issues related to natural resources, conflict, and postconflict peace building, including in East Timor, Ethiopia, the Ivory Coast, Lebanon, Liberia, Montenegro, Myanmar, Sierra Leone, and South Sudan, among other countries. He is coordinating a global initiative with UNEP, the University of Tokyo, and McGill University to examine experiences in managing natural resources to support post-conflict peace building. Bruch has also conducted significant research to improve the response to environmental emergencies and has authored numerous publications on this topic. Cinnamon P. Carlarne is an Associate Professor at the Michael E. Moritz College of Law at the Ohio State University. She teaches in the areas of environmental, energy, and tort law. Carlarne’s scholarship focuses on the evolution of systems of international environmental law, with an emphasis on climate change. She has written numerous articles exploring questions of international environmental law, as well as a book on comparative climate change law and policy with Oxford University Press, and an edited volume on oceans and human health. She is one of the editors for Oxford University Press’ Handbook of International Climate Change Law as well as being on the editorial board for Transnational Environmental Law (Cambridge University Press) and Climate Law (Brill). Prior to joining the Moritz faculty, she was the Harold Woods Research Fellow in Environmental Law at Wadham College, Oxford and an Assistant Professor at the University of South Carolina’s School of Law. Professor Carlarne received her J.D. from the University of California, Berkeley and her BCL and MSc in Environmental Change and Management from the University of Oxford, where she was a Marshall Scholar. Denis Edwards obtained an LLB with honors and the 1987 David Lowe Prize in Public Law from the University of Glasgow, Scotland. He received an LLM from Osgoode Hall Law School, Toronto, where he was a Commonwealth Scholar. He was a lecturer in law at the University of Strathclyde in Glasgow from 1990 to 1995,

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and at the JW Goethe University in Frankfurt and the University of Giessen in Germany in 1993. Edwards was a visiting professor of law at Tulane Law School in academic year 1995–1996, and he was an associate professor of law at the City University of Hong Kong between 1996 and 2000. In academic year 2000–2001, he was a Human Rights Law Teaching Fellow at Columbia Law School in New York City. Since 2001, Edwards has taught EU law with the University of London International Program, including in Hong Kong and Moscow. In 2012, 2013 and 2014 he taught EU Law at DePaul University College of Law and also assisted in the DePaul Legal Clinic. Professor Edwards is a barrister of the Middle Temple, which awarded him a Harmsworth Scholarship. He is a member of the leading environmental law set of barristers’ chambers in London, an Advocate in Scotland, and a member of the law faculty in the Chinese University of Hong Kong. His expertise includes EU law, administrative law, constitutional law, human rights law, environmental law and education law. Daniel Farber is the Sho Sato Professor of Law at the University of California, Berkeley. He is also the Co-Director of the Center for Law, Energy, and the Environment. Professor Farber serves on the editorial board of Foundation Press. He is a member of the American Academy of Arts and Sciences and a Life Member of the American Law Institute. He has written extensively about disaster law and environmental law. He blogs at legal-planet.org. Michael G. Faure LL.M. studied law at the University of Antwerp (1982) and criminology at the University of Gent (1983). He obtained a Masters of Law from the University of Chicago Law School (1984) and a doctor juris from the Albert Ludwigs Universität Freiburg im Breisgau. He was first a lecturer and then a senior lecturer at the department of criminal law of the law faculty of Leiden University (1988–1999) and became academic director of the Maastricht European Institution for Transnational Legal Research and Professor of Comparative and International Environmental Law at the law faculty of Maastricht University in 1991. He still holds both positions today. In addition, he is academic director of the Ius Commune Research School and member of the board of directors of Ectil. Since February 2008, he is half time professor of comparative private law and economics at the Rotterdam Institute for Law and Economics of the Erasmus University and academic director of the European Doctorate in law and Economics program. Since 1982 he is equally an attorney at the Antwerp Bar. He publishes in the areas of environmental (criminal) law, tort and insurance, and economic analysis of (accident) law.

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He has written widely in the field including co-editing the seminal text, Disaster Law, with Daniel Farber (Elgar, 2010). Sara L. Fechtelkotter is a third-year student at the University of Minnesota Law School and President of the Environmental and Energy Law Society. Sara has experience working on environmental and energy issues with local, state, and federal government entities. Drawing More Than Oil from the Bakken Formation, her paper discussing pipeline siting regulations, received first-place in the Minnesota State Bar Association’s Environmental, Natural Resources, and Energy Law Writing Contest. During law school, her research has focused on how law influences the environment. Prior to law school, she conducted empirical research investigating the environment’s impact on people and their cognitive abilities. One of her most impactful learning experiences was a 2,000 mile solo bicycle trip along the Mississippi River where she observed environmental issues first-hand. David Fisher joined the International Federation of the Red Cross and Red Crescent Societies in 2005. Since 2007, he has served as global coordinator of the Disaster Law Programme, leading its work providing legislative advice, developing new international tools and researching new areas of law related to disasters. His prior experience includes legal positions at the Office of the UN High Commissioner for Human Rights and the Brookings Institution as well as domestic civil and criminal practice in the United States. John H. Knox is the Henry C. Lauerman Professor of International Law at Wake Forest University, where he teaches courses on human rights law, international environmental law, and international trade law. In 2012, the UN Human Rights Council appointed him as the first UN Independent Expert on human rights and the environment, and in 2015, it renewed his mandate for three years and changed his title to Special Rapporteur. Professor Knox received his law degree with honors from Stanford Law School in 1987. From 1988 to 1994, he served as an attorney-adviser at the U.S. Department of State, where he participated in the negotiation of the UN Declaration on Human Rights Defenders, the Declaration on the Elimination of Violence Against Women, and the North American Agreement on Environmental Cooperation. Between 1999 and 2005, he chaired a national advisory committee to EPA on North American environmental cooperation.

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Rosemary Lyster is the Professor of Climate and Environmental Law in the Faculty of Law at the University of Sydney. She is also the Director of the Faculty’s Australian Centre for Climate and Environmental Law. In 2013, Rosemary was appointed a Herbert Smith Freehills Visiting Professor at Cambridge Law School and was a Visiting Scholar at Trinity College, Cambridge in 2009 and in 2014. In the area of environmental law, Rosemary specialises in Energy and Climate Law, Climate Disaster Law and Water Law. She has published three books with Cambridge University Press in the area of Energy and Climate Law: Rosemary Lyster and Adrian Bradbrook, Energy Law and the Environment (2006), Adrian J. Bradbrook, Rosemary Lyster, Richard L. Ottinger and Wang Xi (eds) The Law of Energy for Sustainable Development (2005) and Rosemary Lyster, Climate Justice and Disaster Law (2016). Rosemary is also the principal author of Rosemary Lyster, Zada Lipman, Nicola Franklin, Graeme Wiffen, Linda Pearson, Environmental and Planning Law in New South Wales, 4th Edition (Federation Press: 2015). Rosemary is the Energy and Water Special Editor of the Environmental and Planning Law Journal which is the leading environmental law journal in Australia. Her affiliations include the IUCN—The World Conservation Union Commission on Environmental Law, comprising environmental lawyers from around the world, as well as the Commission’s Special Working Groups on Energy and Climate Change, Water and Wetlands, and Forests. Shanna N. McClain is a National Science Foundation IGERT Fellow and PhD student at Southern Illinois University. Her research focuses on the role of multilevel governance regarding climate change adaptation in the Tisza River Sub-basin, international frameworks governing response to natural disasters and industrial accidents in the Danube Basin, and the incorporation of resilience into integrated water resource management frameworks in transboundary basins of the United States and Europe. Rene Nijenhuis has over 15 years of international experience in disaster risk management and coordination of humanitarian and environmental emergencies. Since 2011, he has been a Humanitarian Affairs Officer in the UN Office for the Coordination of Humanitarian Affairs in Geneva, Switzerland. After an initial start as a private sector consultant, Rene joined the UN Economic Commission for Europe in 2000 to work with transition countries in Central Asia, Caucasus, and Eastern Europe and support environmental mainstreaming in economic

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policies. He then moved to the UN Environment Programme in Nairobi, Kenya to promote multi-stakeholder dialogues on large hydropower dams. In 2004, Rene started working on integrating environmental considerations in sudden-onset and protracted humanitarian crises as part of a partnership between UNEP and the UN OCHA. In this capacity, he participated in more than 15 humanitarian and environmental rapid response missions and supported humanitarian coordination following super typhoon Yolanda/Haiyan and the 2015 Nepal earthquake. Rene holds the equivalent of an Honors degree in Corporate Environmental Management from Rijkshogeschool IJseland in the Netherlands and a Masters of Philosophy degree in Environmental Science from the University of Cape Town in South Africa. He is a member of Chatham House and a Fellow of the Asia Pacific Center for Security Studies. Hari M. Osofsky is a Professor of Law, Faculty Director of the Energy Transition Lab, and Director of the Joint Degree Program in Law, Science, and Technology at the University of Minnesota Law School. She also is on the faculty of the Conservation Sciences Graduate Program; an adjunct professor in the Department of Geography, Environment and Society; and a Fellow with the Institute on the Environment. She received a B.A. and a J.D. from Yale University, and a Ph.D. in Geography from the University of Oregon. Osofsky’s scholarship and public policy work focus on energy transition and climate change. Her over fifty publications have received peer awards from both legal scholars and geographers, and she has assisted numerous government agencies and non-profit organizations on energy law issues. Her professional leadership roles have included serving as President of the Association for Law, Property, and Society; chair of the American Association of Law School’s Section on Property; co-chair of the International Environmental Law Interest Group and a member of the American Society of International Law’s Executive Council; the International Law Association’s Committee on the Legal Principles of Climate Change; the International Bar Association’s Model Statute on Climate Change Remedies Working Group; and Board of Governors of the Society of American Law Teachers. Jacqueline Peel is a Professor of Law at the Melbourne Law School, University of Melbourne in Australia where she has taught for the past 13 years. Jackie’s expertise lies in the areas of environmental law, climate change law and risk regulation. She has published widely on these topics including six books on The

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Precautionary Principle in Practice, Environmental Law: Scientific, Policy and Regulatory Dimensions (with L. Godden); Science and Risk Regulation in International Law; Principles of International Environmental Law (3rd ed, with P. Sands); Australian Climate Law in Global Context (with A. Zahar and L. Godden) and Climate Change Litigation: Regulatory Pathways to a Cleaner Energy Future (with H. Osofsky). During 2015, Jacqueline was a Visiting Scholar with the Stanford Water in the West program working on topics related to climate change adaptation governance and law reform. She is also one of the current elected co-chairs of the International Environmental Law Interest Group of the American Society of International Law. Prior to taking up an academic position at the Melbourne Law School, Jacqueline served as an intern to Special Rapporteur James Crawford on the UN International Law Commission and practiced as an environmental and natural resources lawyer in Australia. She has a Bachelor of Science and Bachelor of Laws (Hon I) from the University of Queensland, a Master of Laws from NYU and a PhD in Law from the University of Melbourne. Mary Picard is an Australian international legal consultant currently based in Harare, Zimbabwe. She has worked since 2006 in the field of international and comparative disaster law and policy, with the International Federation of Red Cross and Red Crescent Societies (IFRC), the Sphere Project, UNDP, and more recently the Asian Development Bank. Mary holds a BA (Hons) from the University of Melbourne, an LLB (Hons) from Monash University, and both a DEA (Diplôme d’études approfondies) and a Doctorate in International Studies, Specialization in International Law, from the Graduate Institute of International and Development Studies, Geneva. The scope of her legal and policy work has included international disaster response laws, rules and principles (IDRL), domestic law on disaster risk reduction, climate change, urban resilience, and currently disaster resilience of small and medium enterprises in Southeast Asia. Mary was the project coordinator and lead author of the groundbreaking study, Effective Law and Regulation for Disaster Risk Reduc­tion: A Multi-Country Study (IFRC, UNDP, June 2014: www.drr-law.org). During 2010–11 she worked on the Model Act on IDRL and its commentary (IFRC, IPU, OCHA), and on the review of the Sphere Humanitarian Charter. She also undertook IFRC country case studies on legal frameworks for disaster risk reduction, Nepal 2010, and for IDRL, Guatemala, 2006. Mary practiced employment and anti-discrimination law in Melbourne in the 1990s, and was a national trade union official in the education sector there in the late 1980s.

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Nicholas A. Robinson is University Professor for the Environment at Pace University, where he is also the Gilbert & Sarah Kerlin Professor Emeritus of Environmental Law having established Pace Law School’s environmental law graduate and postgraduate programs. He has been Professor Adjunct at the Yale School of Forestry & Environmental Studies since 2005, where he teaches Yale’s international and comparative environmental courses. His professional career has been devoted to establishing and elaborating the field of environmental law. Graduating from Columbia Law School in 1970, he drafted New York’s Tidal and Freshwater Wetlands Acts, and was elected to the national board of the Sierra Club, organizing the Club’s participation in the 1972 UN Stockholm Conference on the Human Environment. Appointed to the Legal Advisory Committee of the President’s Council on Environmental Quality (1970–72), he participated in the implementation of the National Environmental Policy Act (NEPA), and thereafter advanced environmental impact assessment laws. He assisted in preparing the USA-USSR Bilateral Agreement on Cooperation in the Field of Environmental Protection (1972), and served on the USA environmental law delegations implementing that Agreement under five presidents (1974–92). He continues his engagement with environmental law in the former USSR region as a member of the Environmental and Social Advisory Council to the European Bank for Reconstruction and Development (EBRD). He edited the traveaux préparatoires for the UN’s 1992 Rio “Earth Summit,” Agenda 21 and the UNCED Proceedings (5 volumes), founded several environmental law reviews, and writes widely on environmental legal themes. In 1995–98, he led the Asian Development Bank’s program to introduce teaching of environmental law into university curricula in 15 Asian nations. The World Conservation Congress twice elected him to chair the Commission on Environmental Law of the International Union for the Conservation of Nature and Natural Resources (1996–2004). He served as IUCN’s Legal Advisor, successfully negotiating IUCN’s Observer Status in the UN General Assembly. Collaborating with more than 100 university law faculties around the world, he led the establishment of the first global learned society in environmental law, the IUCN Academy of Environmental Law (www.iucnael.org). His recent academic work includes publication of “Evolved Norms” in C. Voigt, ed., Rule of Law for Nature (Cambridge UP, 2013), and “The Charter of the Forest: Evolving Human Rights in Nature,” in the American Bar Association’s Magna Carta and the Rule of Law (2014). Arden Rowell is a Professor and a University Scholar at the University of Illinois College of Law. Her research interests revolve around risk regulation and human behavior.

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She has taught courses on environmental law, administrative law, behavioral law and economics, risk and the environment, law and sustainable economic development, and valuation, and has had visiting positions at Harvard Law School, Oxford University, and the Environmental Protection Agency. Along with co-author Lesley Wexler, she has written several pieces on foreign valuation, seeking to improve decision making relating to “foreign” risks. Jessica Shadian is the Nansen Professor (2015–2016) at the University of Akureyri, Iceland and a Senior Fellow at the Bill Graham Centre for Contemporary International History, Trinity College, University of Toronto. Her current research focuses on the legal and governance challenges for coastal Arctic indigenous communities as regards Arctic offshore energy and maritime safety. Shadian has a wide range of publications focusing on Arctic resource governance and law, Inuit governance, the role of the EU in Arctic affairs, and the politics of Arctic science. Her most recent book is entitled: The Politics of Arctic Sovereignty: Oil, Ice, and Inuit Governance (Routledge). It is the first academic account of the Inuit Circumpolar Council and offers a history of Inuit sovereignty reaching back to pre-European discovery. Shadian holds a PhD in Global Governance from the University of Delaware during which she spent one year at the Scott Polar Research Institute in Cambridge, UK on a National Science Foundation award to complete her dissertation. Shadian is also a co-creator of the University of the Arctic Pan-Arctic Ph.D. Program in Arctic Extractive Industries as well as the book review editor for The Polar Journal. Anne Siders is a PhD candidate in the Emmett Interdisciplinary Program for Environment and Resources (E-IPER) at Stanford University where she studies adaptive capacity of governance systems in the context of climate change adaptation. She combines approaches from hazards geography, law, digital humanities, and computational social science to identify mechanisms by which adaptive capacity is built and assessed. Her recent work explores how climate adaptation frameworks and theories are integrated into disaster risk reduction and international development policies and how changes in policy are implemented in coastal communities and megacities through multi-level and informal governance systems. Her work spans several geographic regions, including infrastructure development in the Arctic, coastal defense in the United States, and urban resilience in Europe and South-East Asia. Prior to coming to Stanford, Siders was a Presidential Management Fellow with the U.S. Navy, where she worked on international engagement and capacity ­building in Africa, and an Associate

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Director of the Center for Climate Change Law at Columbia University, where she worked on post-Hurricane Sandy recovery. She is a research fellow with the Earth Systems Governance Program, Hoover Institution Arctic Security Initiative, and Earthquakes and Megacities Initiative. She holds an A.B. in Human Evolutionary Biology from Harvard College and a J.D. from Harvard Law School. Lisa Grow Sun graduated from Harvard Law School summa cum laude, the first woman ever to do so and the first person to do so in fifteen years. After law school, she clerked for the Honorable J. Michael Luttig, United States Court of Appeals for the Fourth Circuit, and then for the Honorable Justice Anthony M. Kennedy, United States Supreme Court. Following her clerkships, Professor Sun was a Lecturer in Law at Stanford Law School and then taught as a Visiting Professor in the Temple/Tsinghua University Masters in Law Program in Beijing. Professor Sun now teaches disaster law, constitutional law, and torts at the J. Reuben Clark Law School at Brigham Young University. Her research centers on the intersection of law and natural disasters. She is a coauthor of the definitive disaster law textbook, Disaster Law and Policy, with Dan Farber, Jim Chen, and Rob Verchick. Her scholarship has also appeared in a number of law journals, including the Cornell, UCLA, and Notre Dame Law Reviews. Dan Tarlock is a Distinguished Professor of Law at the Chicago-Kent College of Law and from 2000–2012 was an Honorary Professor UNECSO Centre for Water Law, Science and Policy, University of Dundee, Scotland. He is an elected member of the American Law Institute and a National Associate of the National Academies of Science, Engineering and Medicine. He holds an A.B. and LL.B. from Stanford University. His teaching and research interests focus on energy law, natural resources, land use and United States and international water law with a special interest in aquatic ecosystem conservation, water transfers, climate change adaptation and drought management. law. His publications include Environmental Protection: Law and Policy (5rd ed Aspen Publishing, 2007 with Professor William Buzbee, Professor Robert Glicksman, Professor David Markell, Professor Daniel R. Mandelker); Water Resources Management with Processor James Corbridge, Reed Benson and Sarah Bates (7th ed 2014); Law of Water Rights and Resources (1988 with annual updates); and Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics with Professor Holly Doremus (2008). Professor Tarlock has served on numerous National Research Council/National Academy

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of Sciences committees studying hazardous substance risk management, the protection and recovery of stressed aquatic ecosystems, including a ten year review of the operation of Glen Canyon Dam on the Colorado River and a study of the restoration of the Missouri River ecosystem, published as The Missouri River Ecosystem: Exploring the Prospects for Recovery (2002) and from 2001–2004 was a member of an NRC/NAS committee to assess the future of the U.S. Army Corps of Engineers. In 1998, he was the chief report writer for the Western Water Policy Review Advisory Commission report, Water in the West, which was one of the first major federal publications to examine the relationship between urban growth and water use. From 2000–2012, he was a member of the special legal advisors to the Submissions Unit of the Commission on Environmental Cooperation in Montreal, Canada, which administers the NAFTA Environmental Side Agreement. From 2009–2011, he served on a standing committee on the National Research Council to provide strategic planning advice to the U.S. Army Corps of Engineers. In 2014, Professor Tarlock was appointed to the Technical Committee of the Stockholm-based Global Water Partnership. He has lectured on the problems of ecosystem, natural resources and river basin management in Austria, Australia, Belgium, Brazil, Canada, China, France, Germany, Italy, Israel, Kazakhstan, the Netherlands, Norway, Scotland, Spain and Sweden as well as throughout the United States. Anastasia Telesetsky joined the University of Idaho College of Law in 2009, after eight years of practicing as an attorney in California, Washington, and abroad. Her practice focused on public international law and environmental law. She had the distinction of representing the Government of Ethiopia before the EthiopiaEritrea Claims Commission at the Permanent Court of Arbitration. In 2003 and 2004, she was a Bosch Fellow in Germany where she worked for the German Foreign Ministry on promoting international food security and assisted in drafting guidelines on implementation for the “Right to Food”. As a Fulbright Fellow and a Berkeley Human Rights Center fellow, she collaborated with communities in the Philippines and Papua New Guinea on developing culturally appropriate legal solutions to environmental protection problems. In addition to bachelors and masters degrees in Anthropology, Professor Telesetsky earned her law degree from the University of California-Berkeley (Boalt Hall) and an LLM in International Law from the University of British Columbia. Lesley Wexler joined the Illinois Law School faculty in fall 2010, teaching international environmental law, torts and laws of war. Along with co-author Arden Rowell, she

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has written several pieces on the valuation of foreign lives. This work identifies processes to improve decision making relating to foreign lives across areas such as international environmental law, international humanitarian law, and domestic regulatory law. Professor Wexler has also written extensively on the laws of war and human rights law including pieces on the legitimacy of targeting decisions, the blood diamond trade, and the regulation of depleted uranium and landmines, along with a series of articles on human rights impact statements. Before coming to Illinois, Professor Wexler taught at the Florida State University College of Law. Prior to teaching at Florida State, she spent two years at the University of Chicago Law School as a Bigelow Fellow and Lecturer on Law. Professor Wexler has clerked for Judge Thomas Reaveley of the U.S. Court of Appeals for the Fifth Circuit. She has also clerked for Judge William Wayne Justice of the Federal Eastern District of Texas. Professor Wexler earned her J.D. with honors from the University of Chicago Law School, where she served on the board of both the Chicago International Law Journal and the Chicago Legal Forum.

CHAPTER 1

International Law at the Intersection of Environmental Protection and Disaster Risk Reduction Jacqueline Peel and David Fisher 1

Introduction: Growing Intersection between Disaster Risk Reduction and Environmental Law

Disaster risk reduction (DRR)—and the building of community resilience— are emerging as key priorities of governments, business (especially the insurance industry) and the international community. Natural disasters are taking an ever-higher toll, both in human and economic terms, on the poorest of the poor.1 This is partly due to acceleration in the number and intensity of weather-related hazards, such as hurricanes, fires and floods, compounded by climate change.2 However, it is also attributable to increasing exposure and vulnerability of communities—particularly those located in the growing informal settlements around large urban areas. The factors that contribute to this vulnerability and exposure are directly affected by human choices, and therefore, in theory, amenable to regulation. While much public attention goes to enormous events like Typhoon Haiyan or Superstorm Sandy, many disasters with wide-ranging ramifications remain much less visible. These include slow-onset events, such as desertification and crop failures, or loss of marine ecosystems and fisheries due to climate change-induced ocean acidification, as well as “small” events killing fewer than 50 people that make up more than 90 percent of disasters worldwide.3

1  See Centre for Research on the Epidemiology of Disasters, The Human Cost of Natural Disasters: A Global Perspective (2015). 2  Ibid. In the 20 year period (1994–2013) covered by the report, the incidence of geophysical disasters such as earthquakes, tsunamis and volcanic eruptions remained broadly constant, but a sustained rise in climate-related events such as floods and storms pushed the total occurrences of disasters significantly higher. 3  See Malcolm Lucard, Out of Sight, Out of Mind, Red Cross Red Crescent Magazine (2011), available at http://www.redcross.int/EN/mag/magazine2011_2/18-23.html.

© Peel and Fisher (eds), ���6 | doi ��.��63/9789004318816_002

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These disasters do not feature in international headlines but are collectively wreaking much greater impacts on growth, development, lives and livelihoods.4 Although the economic, social and policy toolkit for preventing disasters has grown enormously in recent years, scholarship about the best use of legal tools is still in its infancy.5 At the international level, most of the legal scholarship about disasters deals with international response in the emergency phase of natural disasters, and this is also the predominant focus of most existing disaster-specific treaties (with some exceptions, particularly at the regional level).6 This is consistent with the traditional view of natural disasters as inevitable events for which societies must simply prepare, as best they can, in order to be ready when the time comes. In the last few decades, however, the consensus among disaster risk management experts has radically shifted. It is now widely accepted that natural hazards do not create disasters without human risk and exposure.7 In other words, humans and human institutions can contribute greatly to their own risks (or safety) from “natural” disasters. The field of environmental law—both at the domestic and international levels—has developed extensively over the last 40 years. International environmental law has grown from soft beginnings to a field featuring hundreds of treaties, the generator of key international principles, and an important focus of scholarship.8 Similarly, ­ domestic ­ environmental law 4  United Nations Framework Convention on Climate Change (UNFCCC), Slow Onset Events, Technical Paper, FCCC/TP/2012/7, Nov. 26, 2012. See also Noralene Uy, Rajib Shaw and Yukiko Takeuchi, Linking Livelihoods and Ecosystems for Enhanced Disaster Management, in Environment Disaster Linkages (Community, Environment and Disaster Risk Management, Volume 9) 131 (Rajib Shaw et al. eds, 2012). 5  There is an emerging literature on international disaster law, e.g., Andrea de Guttry, Marco Gestri and Gabriella Venturini, International Disaster Response Law (2012); David D. Caron, Michael J. Kelly and Anastasia Telesetsky (eds), The International Law of Disaster Relief (2014). There are also several texts on disaster law that treat the subject primarily from a domestic perspective. See Daniel A. Farber, Jim Chen, Robert Verchick and Lisa Sun, Disaster Law and Policy, 2nd Edition (2009); Daniel A. Farber and Michael Faure, Disaster Law (2010); Robert Verchick, Facing Catastrophe: Environmental Action for a Post-Katrina World (2010); Kristian Lauta, Disaster Law (2014). 6  See, e.g., ASEAN Agreement on Disaster Management and Emergency Response, Vientiane, Jul. 26, 2005, available at http://www.ifrc.org/docs/idrl/N112EN.pdf; SAARC Agreement on Rapid Response to Natural Disasters, finalized at Intergovernmental Meeting, Male, May 25–26, 2011, available at http://www.ifrc.org/docs/idrl/N840EN.pdf. 7  See Lisa Grow Sun, Climate Change and the Narrative of Disaster, chapter 2, in this volume. 8   Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, 3rd Edition (2012).

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has gone from a predominantly Western concern to a major feature of the legal systems of countries around the globe. For the most part, domestic and international environmental law are focused on mitigating the risks that human behavior poses to nature—reducing “manmade disasters,” such as toxic contamination and pollution, degradation of air and water, and the destruction of species and habitats. With the dawning recognition that the distinctions between “manmade” and “natural” disasters are blurring, the question arises whether environmental law is, or can be, more relevant to the latter category. This edited collection explores whether and how existing environmental law instruments, principles and approaches can be employed to reduce disaster risk and/or how they might be modified to do so in the future. In addition, several chapters address the question of how the social, normative and policy tools evolving to combat natural disasters might influence environmental protection regimes focused on manmade risks. The book draws on papers presented as part of an international workshop convened at Stanford Law School in May 2015 to consider the question of “How Can International Environmental Law Reduce Disaster Risk?”.9 While the focus in looking at “environmental law tools” is primarily on those at the international level, the book adopts a broad conception of international environmental law that includes transnational and regional arrangements, and that recognizes the close relationship between environmental regulation at the domestic and international levels. Similarly, much of “international” disaster law is directed to coordinating and overseeing activities within countries; indeed, in large part, the business of disaster risk reduction falls to domestic actors, with some (still rather limited) support from international actors, instruments and financing arrangements. This chapter seeks to set the stage for the chapters that follow. It begins with an overview of international environmental law and international disaster law, and some elaboration of their development and interactions. It then reflects on the evolving view of the significantly “manmade” drivers of many “natural” disasters and the consequences for how disasters are classified in law. Finally, it summarizes the three parts of the book and describes the chapters each contains.

9  A report from the workshop is available from the American Society of International Law website at http://www.asil.org/community/report-asil-workshop-how-can-internationalenvironmental-law-reduce-disaster-risk.

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An Overview of Two Areas of International Law

International environmental law and international disaster law are both fairly recent developments in the broader field of international law. However, international environmental law—most of which has grown up since the 1970s— is undoubtedly substantially more developed than the still-nascent field of international disaster law. International environmental law today consists of a substantial body of treaties, other international instruments, soft law declarations, and case law.10 These legal requirements are directed to the prevention of environmental harm—whether by pollution or through the unsustainable use of natural resources—as a result of human activities. Though some origins can be found rather distantly in the past, international disaster law has started to develop more recently. Its focus to date has been principally on disaster response. However, over the last decade, the international community has begun to engage with the question of DRR, and the role of international norms in helping to prevent and prepare for disasters, or mitigate the damage they cause. This growing preventative focus, coupled with threats such as climate change that merge the human and natural role in disaster creation, have brought international environmental law and international disaster law into closer contact. In turn, this has important implications for the scope and operation of each body of law, and for those working and practicing in the interlinked areas of disaster management, environmental protection, and climate change adaptation. International Environmental Law—From Manmade Harms to Disaster Risk Viewed through a disaster lens, international environmental law can be said to be principally concerned with “manmade” harms that, unaddressed, may otherwise precipitate disaster. This is borne out by the major treaty regimes that cover different environmental sectors. For instance, in the area of atmospheric protection, one of the best known and most successful treaty regimes is that dealing with ozone depletion. The 1985 Vienna Convention and 1987 Montreal Protocol place controls on the production and consumption of various anthropogenic sources of ozone depleting substances with the aim of slowing and reversing depletion of the Earth’s protective ozone layer.11 In the area of bio2.1

10  Sands and Peel, supra note 8. 11  This international legal regime has put the Earth’s ozone layer well on track to recovery over the last few decades: see World Meteorological Organization and UNEP, Assessment for Decisionmakers: Scientific Assessment of Ozone Depletion 2014 (2014).

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diversity conservation—which saw some of the earliest international environmental treaties dating back to the 1800s12—a central treaty regime is that under the Convention on Biological Diversity (CBD) and its protocols.13 Here the primary threats to which the treaty is directed—habitat destruction and modification—are also of human origin14—and the long-term impacts of failing to act can certainly be projected as a “disaster.” Many (if not most) environmental and industrial accident treaties are also relevant to the prevention of disasters. For example, the 1994 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification (UNCCD);15 the 1992 United Nations Framework Convention on Climate Change (UNFCCC), its 1997 Kyoto Protocol, and the 2015 Paris Agreement;16 the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal;17 and the 1993 Inter­national Labour Organization Convention No. 147 on Prevention of Major Industrial Accidents18 and its accompanying Recommendations,19 all seek to check the development of conditions that could lead to disaster. Principles of international environmental law that have underpinned treaty development likewise have a focus on prevention and anticipation of (disastrous) harm to the environment from human activities. For instance, Principle 21 of the 1972 Stockholm Declaration on the Human Environment (which builds on the famous Trail Smelter ruling and is reiterated in Principle 2 12  Water-related treaties such as those on boundary rivers have an even longer history. In their modern form, such treaties are generally directed to securing “equitable and reasonable utilization” of shared watercourses, duties that may also serve to reduce the potential for mitigating water-related disaster risks such as flood and drought. See further the chapters by Tarlock and Picard in this volume. 13  Convention on Biological Diversity, Montreal, Jan. 29, 2000, in force Sep. 11, 2003, 2226 UNTS 208 (2000) (CBD). The parties to the CBD have subsequently concluded protocols on biosafety and access to genetic resources. 14  CBD, preamble. 15  Paris, Oct. 14, 1994, in force Dec. 26, 1996, 1954 UNTS 3 (1995). 16  U NFCCC, New York, May 9, 1992, in force Mar. 21, 1994, 1771 UNTS 107; Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, Dec. 11, 1997, in force Feb. 16, 2005, 2303 UNTS 162; Paris Agreement, Annex, UNFCCC, Adoption of the Paris Agreement, Draft Decision -/CP.21, FCCC/CP/2015/L.9/Rev.1, 12 December 2015. 17  Basel, Mar. 22, 1989, in force May 5, 1992, 1673 UNTS 57. 18  Geneva, Jun. 22, 1993, in force Jan. 3, 1996, 1967 UNTS 231. 19   R-181—Prevention of Major Industrial Accidents Recommendation, 1993 (No. 181), Geneva, 80th ILC Sess. (Jun. 22, 1993), at http://www.ilo.org/dyn/normlex/en/f?p=NOR MLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312519:NO.

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of the Rio Declaration on Environment and Development)20 provides that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of jurisdiction.”21 This responsibility principle—recognized as customary international law22—is supplemented by other key principles such as the prevention principle (requiring the prevention of damage to the environment, and otherwise to reduce, limit or control activities that might cause or risk such damage),23 the principle of cooperation (requiring states to cooperate in the development and implementation of international environmental law)24 and the precautionary principle (calling on states not to postpone preventative measures where there are threats of serious or irreversible harm but a lack of full scientific certainty).25 These principles sit under the broader framework of sustainable development that was the conceptual basis of the 1992 Earth Summit that led to the Rio Declaration on Environment and Development. Sustainable development is generally understood as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”26 It has been described as expressing the “need to reconcile economic development with protection of the environment.”27 Subsequent world conferences on sustainable development in Johannesburg in 2002 and in Rio de Janeiro in 2012 (Rio+20) have not greatly refined the underlying concept of sustainable development, although the Rio+20 summit provided a platform for articulation of the Sustainable Development Goals (SDGs), which promise to 20  Rio Declaration on Environment and Development, Report of the United Nations Con­ ference on Environment and Development, Rio de Janeiro, Jun. 3–14, 1992, A/CONF.151/26 (Vol. I), Aug. 12, 1992, Annex I (Rio Declaration). 21  Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf.48/14/Rev. 1(1973); 11 ILM 1416 (1972). 22  Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226. A customary law principle is one binding on all states (other than persistent objectors) regardless of whether they have specifically consented to be bound by the principle under treaty law. 23  D. Goba, Le Principe de Prévention en Droit International de l’Environnement, 36 Revue Ivorienne de Droit 9 (2004). 24  Based on the principle of “good neighborliness” enunciated in Article 74 of the UN Charter. 25  Rio Declaration, Principle 15. 26  Report to the World Commission on Environment and Development, Our Common Future (1987) 43. 27  Gabcikovo-Nagymaros (Hungary v. Slovakia), ICJ Reports 1997, p. 7, at para. 140.

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provide a more concrete agenda for achieving sustainable development in the post-2015 era.28 In international environmental law, the concept of sustainable development and its complementary principles are given effect via a series of tools and approaches found across many environmental treaties. They include environmental impact assessment,29 requirements of notification, consultation and information exchange, and risk assessment.30 Although international environmental law, its principles and tools have generally had a forward-looking preventative focus, treaty development in the field has often been reactive, with regulations put in place following the occurrence of disasters.31 The evolution of the treaty regimes governing oil pollution and radioactive contamination from nuclear facilities—discussed in more depth in the chapter by Michael Faure in this volume—has closely tracked the occurrence of high-profile disasters, including the Chernobyl nuclear reactor meltdown and major oil spill incidents such as the Torrey Canyon in 1967, the Amoco Cadiz in 1978, the Exxon Valdez in 1989 and the Prestige in 2002. As pointed out by Denis Edwards in his chapter, the European Union’s famous “Seveso Directive” was expressly named after a 1976 industrial accident in Seveso, Italy. While most of international environmental law is focused on manmade harms, there are some environmental treaties that use the terminology of (natural) disasters or have a sufficiently wide scope to incorporate these issues. For example, several of the treaties dealing with the response to environmental emergencies of differing kinds—discussed in detail in the chapter by Carl Bruch, Rene Nijenhuis and Shanna McClain32—apply both in cases of manmade or technological disasters, and in situations of natural disasters. Likewise, the UNCCD applies to desertification caused either by natural or “human activities.”33 Indeed, the United Nations Environmental Programme’s (UNEP) operating definition of “environmental emergencies” is “­ sudden-onset 28  See Nicholas A. Robinson, The UN SDGs and Environmental Law: Cooperative Remedies for Natural Disaster Risks, chapter 12, in this volume. 29  The obligation to conduct an environmental impact assessment where activities threaten transboundary harm has also been recognized as a “requirement under general international law” by the International Court of Justice: see Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14, para. 204. 30  Sands and Peel, supra note 8. 31  Id., 23. 32  See Carl Bruch, Rene Nijenhuis and Shanna N. McClain, International Frameworks Governing Environmental Emergency Preparedness and Response: An Assessment of Approaches, chapter 13, in this volume. 33  See UNCCD, art. 1(a).

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disasters or accidents resulting from natural, technological or human-induced factors, or a combination of these, that causes or threatens to cause severe environmental damage as well as loss of human lives and property.”34 The possibility for conjoint natural and technological disasters—for instance, where an earthquake and tsunami triggers meltdown of reactors at a nuclear power plant—has given rise to the new concept of “natechs” (natural hazards triggering technological disasters).35 Other environmental treaty regimes are being re-envisioned as tools for DRR in addition to their environmental purposes. For example, the United Nations Economic Commission for Europe (UNECE), which administers a suite of treaties focused on environmental assessment,36 public participation and access to justice,37 protection of freshwater resources,38 and industrial accidents,39 views these environmental treaties as a “key tool” in regulatory frameworks for DRR. It sees the potential for approaches such as environmental assessment, environmental human rights, watercourse protections, and the development of contingency plans and precautionary actions for industrial accidents, to be re-deployed as measures for preventing disasters and mitigating their effects on the environment and communities.40 Under the auspices of UNEP, efforts are also being made to incorporate a more specific focus on disaster risk into a range of widely ratified environmental treaties traditionally focused on manmade harms.41 This work is seen 34  UNEP Governing Council, Further Improvement of Environmental Emergency Pre­ vention, Preparedness, Assessment, Response and Mitigation, Note by the Executive Director, UNEP/GC.22/INF/5, Nov. 13, 2002. 35  Rene Nijenhuis, The International Environmental Emergencies Response System: A Case Study of Supertyphoon Haiyan (Yolanda), The Philippines, 6(2) Asian Journal of Envi­ ronment and Disaster Management 175, 177 (2014). 36  Convention on Environmental Impact Assessment in a Transboundary Context, Finland, Feb. 25, 1991, in force Sep. 10, 1997, 1989 UNTS 309. 37  Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Aarhus, Jun. 25, 1998, in force Oct. 30, 2001, 2161 UNTS 447. 38  Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, Mar. 17, 1992, in force Oct. 6, 1996, 1936 UNTS 269. 39  Convention on the Transboundary Effects of Industrial Accidents, Helsinki, Mar. 17, 1992, in force Apr. 19, 2000, 2105 UNTS 457. 40  See UNECE, ‘UNECE Activities that Contribute to Better Disaster Risk Management’, at http://www.unece.org/sustainable-development/disaster-risk-reduction/unece-drr.html. 41  UNEP, ‘Disasters and Conflicts—Global Advocacy’, at http://www.unep.org/disaster sandconflicts/Introduction/DisasterRiskReduction/Globaladvocacy/tabid/104427/ Default.aspx. See also, Nathalie Doswald and Marisol Estrella, Promoting Ecosystems for Disaster Risk Reduction and Climate Change Adaptation, UNEP Discussion Paper (2015).

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as a complement to international DRR efforts such as the Hyogo and Sendai ­frameworks (discussed further in section 2.2, below) that advocate greater integration with environmental, development and climate-focused treaties and institutions but which—as soft law documents—lack binding effect. Examples of efforts to modify global environmental treaties to improve state implementation of DRR include:

• The adoption of a decision at the 12th Conference of the Parties (COP) of

the CBD, with reference to “Biodiversity and Climate Change and Disaster Risk Reduction.”42 The CBD COP decision requests the CBD Executive Secretary to “promote Ecosystem Based Approaches for Disaster Reduction” giving a mandate to initiate action to promote DRR through instruments available to CBD parties, including National Biodiversity Strategies and Action Plans. The adoption of a resolution at the 12th COP of the Ramsar Wetlands Convention on “Wetlands and Disaster Risk Reduction,” which introduces DRR as one of the objectives for wetlands management.43

•

It is likely these efforts will be extended to other environmental conventions, both at global and regional levels, which present opportunities for mainstreaming DRR, such as the UNCCD. Another crucial pivot point for the growing intersection between DRR and environmental protection is the international climate change regime under the auspices of the UNFCCC. The UNFCCC and its supplementary Kyoto Protocol were, for the most part, drafted with the primary goal of reducing anthropogenic emissions of greenhouse gases in order to mitigate climate change.44 However, each treaty also includes some duties for state parties related to adaptation to climate change, both with regard to preparatory steps at home and to support for developing countries.45 Lackluster progress

42  C BD COP, Biodiversity and Climate Change and Disaster Risk Reduction, Dec. XII/20, UNEP/CBD/COP/12/20, Oct. 17, 2014. 43  Res. XII/13, Wetlands and Disaster Risk Reduction, 12th Meeting of Conference of Parties of Convention on Wetlands, Punta del Este, Uruguay, 1–9 June 2015, available at http:// www.ramsar.org/sites/default/files/documents/library/cop12_res13_drr_e_0.pdf. 44  Adaptation by contrast was largely a “taboo” topic within the regime until 2007: see Roger Pielke Jr, Gywn Prins and Steve Rayner, Climate Change 2007: Lifting the Taboo on Adaptation, 455 Nature 597 (2007). 45  See, e.g., UNFCCC arts. 4–6; Kyoto Protocol arts. 10(b) & 12.8. The Paris Agreement strengthens this focus with self-standing articles on adaptation (art. 7) and loss and damage (art. 8).

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in reducing global emissions has sparked a growing focus on managing the impacts of climate change on the environment and communities, including through dedicated funding, as well as the potential of dealing with unavoidable loss and damage.46 The climate change regime’s turn towards adaptation and climate change-induced damage—consolidated by the recent 2015 Paris Agreement—bring it into greater alignment with the field of DRR. However, the full implications of a closer relationship between the climate change regime, DRR, and related areas such as development assistance for legal requirements, approaches, institutions, and financing arrangements remain far from clear. Many of the chapters in this volume consider these questions, offering reflections on the gaps that exist as well as possible approaches for improved coordination. International Disaster Law—From Emergency Response to Risk Reduction Compared with international environmental law, international disaster law is a field in a more embryonic stage of development,47 even though early attempts at treaty making can be traced back to the 1800s.48 Indeed, some experts remain unconvinced that it can currently be referred to as a field of law at all.49 However, the last several decades have seen the development of a substantial number of relevant bilateral and regional treaties, along with a handful of global treaties. These global treaties focus primarily on disasters (such as the Tampere Convention on the Provision of Telecommunications Resources for Disaster Mitigation and Relief Operations of 1988,50 and the Framework Convention on Civil Defense Assistance of 2000)51 or address disaster issues 2.2

46  See UNFCCC, Work Program on Loss and Damage, http://unfccc.int/adaptation/work streams/loss_and_damage/items/6056.php. See also Paris Agreement, art. 8. 47  American Society of International Law, Disaster Law, at http://www.asil.org/community/ disaster-law. 48  International Federation of Red Cross and Red Crescent Societies, Law and legal issues in international disaster response: A desk study (2007), at 25. 49  See, e.g., Arnold Pronto, Consideration of the Protection of Persons in the Event of Disasters by the International Law Commission, 15 Int’l Law Students Assoc. J. of Int’l and Comp. L 449, 454 (2009). 50  Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, June 18, 1998, in force Jan. 8, 2005, United Nations depositary notification C.N.608.1998.TREATIES-8 of Dec. 4 1998. 51  Framework Convention on Civil Defense Assistance, 2172 UNTS 213, May 22, 2000, in force Sept. 23, 2001.

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under the rubric of another theme (as in the case of Special Annex J.5 of the Convention on the Harmonization and Simplification of Customs Procedures as revised in 1999).52 A recent study cited more than 200 international instruments “regulating various matters related to the prevention, management of disasters and post-disaster rehabilitation and reconstruction.”53 In addition, there are a significant number of influential soft law instruments, such as resolutions, frameworks, codes and guidelines, providing a normative basis for the field. Following the evolution of thinking in the field of disaster (risk) management, earlier instruments tended to refer exclusively to facilitating emergency response (covering issues such as offers and requests for assistance, coordination, border crossing formalities, status of personnel and liability issues).54 Modern instruments have started to move toward a more holistic approach, in particular, incorporating aspects of DRR (such as commitments on early warning systems, educational programs, and reinforcement of critical infrastructure). For example, in 1991, the member states of the Caribbean Community adopted the Agreement Establishing the Caribbean Disaster Emergency Response Agency,55 focused mainly on mutual assistance in the event of a disaster. In 2013, the agreement was amended and the agency renamed the “Caribbean Disaster Emergency Management Agency” in order to emphasize its growing focus on promoting member state preparedness and prevention efforts. Similarly, in 1991, the Council of the European Union adopted a resolution on “improving mutual aid between member states in the event of a natural or technological disaster.”56 This resolution focused, as its title suggests, on emergency assistance among member states. In a series of ­subsequent

52  Protocol of Amendment to the International Convention on the Simplification and Harmonization of Customs Procedures, 2370 UNTS 27, June 26, 1999, in force February 3, 2006. 53  Andrea de Guttry, Surveying the Law, in Andrea De Guttry et al., eds., International Disaster Response Law (2012), at 4. 54  Id. at 9. 55  Agreement Establishing the Caribbean Disaster Emergency Response Agency, Feb. 26, 1991, in force May 19, 1992. 56  Resolution of the Council and of the Representatives of the Governments of the Member States meeting within the Council of 8 July 1991on improving mutual aid between Member States in the event of natural or technological disasters, Official Journal No. C. 198, July 27, 1991.

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decisions in 2001,57 2007,58 and 2013,59 the Council developed a much more elaborate “civil protection mechanism” with a growing (though certainly non-exclusive) emphasis on promoting risk reduction activities. At the global level, a series of resolutions by the International Telecommunications Union (and its predecessor organization) related to emergency communications preceded the development, in 1998, of the Tampere Convention. The latter is addressed both to “mitigation and relief,” although its preventative aspects have rarely been invoked. Of course, specific norms and mechanisms for emergency response continue to be necessary (indeed, increasingly so, as the number and variety of international disaster responders continue to increase over time),60 and accordingly continue to be developed and refined. However, the 1980s also saw the beginnings of a specific global framework for DRR. In 1987, UN General Assembly Resolution 42/169 declared the 1990s the “International Decade of Natural Disaster Reduction.” This was followed by a series of time-bound international strategies adopted by international conferences (and later also by resolutions of the UN General Assembly): the Yokohama Strategy and Plan of Action of 1994, the Hyogo Framework of Action in 2005,61 and, most recently, the Sendai Framework for Disaster Risk Reduction of 2015.62 The most recently completed of these strategies, the Hyogo Framework, set out five priorities for the efforts of the international community between 2005 and 2015: 1. 2.

Ensure that disaster risk reduction is a national and a local priority with a strong institutional basis for implementation. Identify, assess and monitor disaster risks and enhance early warning.

57  Council Decision 2001/792/EC, establishing a Community mechanism to facilitating reinforced cooperation in civil protection assistance interventions of 23 October 2001, Official Journal L 297/7 Nov. 15, 2011. 58  Council Decision 2007/162/EC of 5 March 2007, establishing a civil protection financial instrument, Official Journal L1/9, March 10, 2007. 59  Decision No. 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism, Official Journal L 347, Dec. 20, 2013, 924–947, 60  See IFRC, supra note 48, at 28–31. 61  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 Reduction, available at http://www.unisdr.org/we/coordinate/hfa. 62  Sendai Framework for Disaster Risk Reduction, UNGA Res. 69/283, Jun. 23, 2015, available at http://www.unisdr.org/we/inform/publications/43291.

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3. 4. 5.

13

Use knowledge, innovation and education to build a culture of safety and resilience at all levels. Reduce the underlying risk factors. Strengthen disaster preparedness for effective response at all levels.

An end-of-term synthesis of prior assessment reports found good progress against most of these five priorities, particularly Priority 5 on preparedness and Priority 1 on institutional (and legal) frameworks. Far less accomplishment was recorded with regard to Priority 4, with the conclusion that “countries have been more challenged to factor disaster risk reduction into public investment, land-use planning, infrastructure projects, environmental management and social policies, which are the activities under HFA Priority for Action 4 on reducing the underlying risk drivers and tackling the causes of risk creation.”63 States addressed the implementation gaps in the Hyogo Framework in their negotiation of the Sendai Framework in 2015 with the explicit understanding that DRR must now be pursued “in the context of sustainable development and poverty eradication.”64 Noting the need to disrupt existing disaster cycles, the Sendai Framework calls for “more dedicated action on disaster risk drivers,” including poverty and inequality, climate change and variability, and unsustainable uses of natural resources, among others.65 Nevertheless, arresting environmental degradation and protecting “environmental assets”66 does appear as an ambition in various parts of the document, reflecting a growing intersection with the goals of international environmental law. Indeed, language from international environmental law is deliberately employed in the Framework with, for example, disaster risk identified as a “common concern” for states.67 One of the priorities under the Sendai Framework is “strengthening disaster risk governance.”68 To achieve this priority states and local communities 63  U NISDR, Rationale for a post-2015 framework for disaster risk reduction—Evidence from the Global Assessment Report 2009, 2011 and 2013 (2014), at 2, available at http:// www.preventionweb.net/files/38421_garforhfa2final.pdf. 64  Sendai Framework, supra note 62, para. 12. Similar language also appears in the objective of the Paris Agreement, art. 2(1). 65  Curiously, however, the notion of risk drivers did not receive top billing in Sendai’s “priorities for action,” which were reduced to four points (understanding disaster risk; strengthening disaster risk governance to manage disaster risk; investing in disaster risk reduction for resilience; enhancing disaster preparedness for effective response and to “Build Back Better” in recovery, rehabilitation and reconstruction). Id. at para. 20. 66  Sendai Framework, supra note 62, p. 8, para. 19(c). 67  Sendai Framework, supra note 62, p. 8, para. 19(a). 68  Sendai Framework, supra note 62, p. 12, para. 26.

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are expected to implement strategies that will prevent the creation of risk, reduce existing risk, and strengthen “economic, social, health, and environmental resilience.”69 One such disaster risk governance strategy will be the fuller implementation of national or municipal environmental laws to protect key environmental assets using a DRR lens.70 This strategy might be achieved with new legislation providing for natural capital accounting and taking into account impact assessment focused on understanding ecosystem services.71 At the international and regional level, states should actively seek “transboundary cooperation . . . for the implementation of ecosystem-based approaches with regard to shared resources . . . to build resilience and reduce disaster risk.”72 This ecosystem-based cooperation prioritization closely matches similar obligations under the International Watercourses Convention and the UN Fish Stocks Agreement designed to protect watercourses and straddling and highly migratory fisheries.73 For international aid donor states, DRR should be mainstreamed for any investments to support “sustainable development, environment . . . and adaptation to climate change” in recipient States.74 While ostensibly the Sendai Framework is an international disaster law agreement like its predecessor the Hyogo Framework, it clearly also furthers the goals of international environmental law by promoting domestic implementation of environmental protection obligations and transboundary cooperation to protect ecosystems. The instrument illustrates the increasingly intersecting international agendas on DRR, climate adaptation, and sustainable development.

69  Sendai Framework, supra note 62, p. 13, para. 27(b). 70  Id. at p. 13, para. 27(d) (“Encourage the establishment of necessary mechanisms and incentives to ensure high levels of compliance with existing safety-enhancing provisions of sectoral laws and regulations, including those addressing land use and urban planning, building codes, environmental and resource management and health and safety standards, and update them, where needed, to ensure an adequate focus on disaster risk management”). 71  Id. at p. 15, para. 30(n) (Calling for States and municipalities to “strengthen the sustainable use and management of ecosystems and implement integrated environmental and natural resource management approaches that incorporate disaster risk reduction.”). 72  Sendai Framework, supra note 62, p. 14, para. 28(d). 73  U N Watercourses Convention, 36 ILM 700 (1997) and 1995 Agreement for the Imple­ mentation of the Provisions of the 1982 United Nations Law of the Sea Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 3, Article 6. 74  Sendai Framework, supra note 62, p. 23 para. 47(d).

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The (Porous) Border between “Manmade” and “Natural” Disasters

If there is a growing consensus among disaster risk management specialists that traditional rationales for the distinction between manmade and natural disasters are no longer sustainable, should these distinctions remain in law? Disasters arise where a hazard—such as a flood, fire, earthquake, storm, etc.—impacts upon a population.75 Human activities and choices shape both the hazards we face and our vulnerability to those hazards. The choices people, communities and governments make have an impact on their degree of exposure and vulnerability. Living in exposed locations such as along the coast, near seismic fault lines or volcanoes, or in areas where natural protections such as coastal wetlands have been removed, increases the likelihood of being impacted.76 Likewise, people in hazard-prone locations may be more or less vulnerable to the impacts of hazards, depending on factors varying from the quality of the construction of their homes, to the sustainability of their livelihoods. While climate-linked disasters are perhaps the poster child of anthropogenic “natural” disasters, the human contribution to disaster is evident even in the case of geophysical hazards such as earthquakes and volcanoes.77 As one engineer put it poignantly in the wake of the devastating 2015 earthquake in Nepal, “Earthquakes don’t kill people, buildings do.”78 For many the interplay between natural and human agency in the manifestation of disaster undermines the field’s traditional distinction between natural and manmade disasters: In practice, humanitarian emergencies may result from a mixture of causes: they may be partly natural and partly manmade; they may have several independent causes; and they may occur as a series of linked events . . . It has therefore rightly been stated that ‘the multiple causes often associated with disasters make the ‘natural’—‘manmade’ 75  Randolph C. Kent, Anatomy of Disaster Relief: The International Network in Action (1987) 4. 76  David A. McEntire, Triggering Agents, Vulnerabilities and Disaster Reduction: Towards a Holistic Paradigm, 10(3) Disaster Prevention and Management 189 (2001). 77  On the potential human role in triggering even geophysical disasters such as earthquakes see USGS, Induced Earthquakes, at http://earthquake.usgs.gov/research/induced/. 78  Brad Plummer, We Know How to Reduce Earthquake Deaths. So Why Aren’t We Doing It?, Vox Science and Health, Apr. 27, 2015, at http://www.vox.com/2015/4/27/8501281/ earthquake-risk.

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d­ istinction . . . difficult to uphold in any rigorous way’. So-called natural disasters are misnamed essentially because they include a component which reflects mankind’s relationship with the environment. This is increasingly demonstrated as more people become vulnerable to the effects of natural phenomena.79 However, growing understanding that natural and manmade disasters may often have similar causes has not yet translated extensively into legal instruments, particularly at the national level, where the natural and manmade categories remain very separate. Of course, traditions and inertia have a large part to play in this. It is in the nature of legal instruments to lag behind “current wisdom” in light of the ponderous (and political) process required to develop them. However, there may also be more deep-seated reasons for legal distinctions that may not easily yield to integration. Both the potential synergies and remaining rationales for distinction are explored in various parts of the chapters that follow, most particularly in the chapters found in Part I of the book. The theme of Part I is the relationship between disaster and environmental law, and the increasing intersection between them. The chapters in this Part challenge the distinction between natural and manmade disaster risks, particularly in an era of climate change, and consider the consequences of growing porosity at the boundary between disaster and environmental law. It starts out with Lisa Grow Sun’s chapter on Climate Change and the Narrative of Disaster. In this chapter, Sun considers the potential consequences of a fuller recognition of the human role in causing “natural” disasters and the concomitant blurring of the natural/manmade disaster distinction. Her contribution is intended as a thought-mapping exercise, “contemplating how narratives reconceptualizing human agency in natural disaster might affect disaster law and policy at many different scales.” Sun’s thesis is that the emerging consensus in the disaster law literature that no disaster is truly natural masks potentially deep divisions about how the human role in disasters ought to be understood and play out in policy and decision-making. She envisages that the collision between different approaches to climate disasters in particular—from the disaster management side and from the environmental side—will result in a multitude of potential narratives around the human role in disaster.

79  Peter Macalister-Smith, International Humanitarian Assistance: Disaster Relief Actions in International Law and Organization (1985) 3; Quoting B.A. Turner, Manmade Disasters (1978) 14.

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Building on Sun’s examination of the consequences of a blurring of the distinction between natural and manmade disasters, the following chapter— Disaster Law in the Anthropocene by Daniel Farber—highlights implications at the boundary between the associated legal regimes of disaster and environmental law in the era of the Anthropocene of which climate change is a key example. The chapter canvasses the ways in which climate change is affecting concepts of natural disaster, and the consequences for the international legal regime dealing with disasters, as “natural disasters” increasingly merge with “climate disasters.” Farber argues that efforts to deal with climate change through forging connections between international climate law and international disaster law promise to strengthen the latter. In particular, the chapter identifies the climate regime’s increasing focus on risk mitigation (in the guise of adaptation) and victim compensation (through debates over mechanisms for responding to loss and damage) as avenues for injecting needed resources into DRR and developing better rules to address the needs of people displaced by climate disasters, particularly in developing countries. Rosemary Lyster’s contribution on A Capabilities Approach to Defining Climate Disaster expands on Farber’s insight about the coalescence of natural disasters with climate disasters, detailing the “many faces” of the latter. Lyster’s chapter draws on the theories of Amartya Sen and Martha Nussbaum to articulate a “capabilities approach” to climate justice that envisages climate disasters, and responses to the same, as a key determinant in whether just outcomes are reached. She argues that climate disasters destroy and undermine human and non-human (ecosystem) capabilities unless vulnerability and exposure are reduced and resilience building is actively pursued. Through a close analysis of the various elements of the post-2015 agenda—dealing with DRR, human rights and climate change, sustainable development and human security—she highlights the increasing call for more integrated responses at the international level that will impose obligations on states to deal with climate disasters in new and more effective ways. The chapter by Anne Siders on Resilient Incoherence—Seeking Common Language for Climate Change Adaptation, Disaster Risk Reduction and Sus­ tainable Development illustrates that despite the recent attempts to merge international policy efforts in these areas, often with a focus on “building resilience,” there remains a lack of common understanding among participating disciplines as to what resilience means and its consequences for on-the-ground adaptation, development, and DRR activities. Like Lyster, Siders examines key elements of the “post-2015 agenda,” including the Sendai Framework, the United Nations SDGs, and decisions of the UNFCCC COP. She uses this analysis to map the interactions and tensions that exist between the three areas

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and identifies a need for greater coherence. However, the answer to achieving greater coherence, she argues, does not lie—at least at the operational level— in the highly malleable concept of resilience. Instead she suggests there is a need to articulate clear priorities for the respective areas of DRR, climate adaptation and sustainable development that could facilitate the identification of conflicts and promote consideration of workable tradeoffs. The final chapter of Part I—Disastrous Adaptation by Cinnamon Carlarne— highlights the consequences of the overlaps and incoherence between DRR, climate adaptation and development identified by Siders for climate financing arrangements. Focusing on climate-related disasters at the intersection of DRR and climate change adaptation (CAA), Carlarne points out the volatility, fragmentation, inequities and information gaps that characterize existing patterns of DRR/CAA funding. The chapter emphasizes reaching equitability as a key challenge of financing in this area. Reflecting the relatively uncharted territory that DRR/CCA financing represents, Carlarne maps out critical framing questions at the DRR/CCA interface that warrant further exploration. These questions relate both to data needs and calls for increased transparency in financing arrangements, and to how equity and considerations of vulnerability affect the understanding of funding priorities and their operationalization in different contexts. The chapter stresses the urgency of exploring these questions now while the linked DRR-CCA financing arrangements remain at an early stage of evolution and retain a degree of malleability. 4

Using Environmental Legal Tools for Disaster Risk Reduction

Although environmental legal requirements—at both the domestic and international levels—have often been developed in response to specific disasters,80 contemporary environmental law has a strong focus on harm prevention, preparedness and precautionary action. Speaking about international environmental law, the tribunal in the Iron Rhine Arbitration recognized that “[t]oday . . . a growing emphasis is being put on the duty of prevention” and that “[m]uch of international environmental law has been formulated by reference to the impact that activities in one territory may have on the territory of another.”81 This approach was affirmed in the Pulp Mills case, 80  Examples include the Bhophal industrial disaster at the Union Carbide plant in India and the Love Canal toxic waste scandal in the United States. 81  Iron Rhine Arbitration, Belgium v. Netherlands, Award, ICGJ 373 (PCA 2005), 24th May 2005, Permanent Court of Arbitration, paras. 59 and 222.

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where the International Court of Justice drew connections between “the principle of prevention, as a customary rule” and “the due diligence that is required of a State in its territory.”82 The Court went on to hold that: . . . it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.83 Given that principles and tools for the anticipation and prevention of harm are well-developed in international and domestic environmental law, to what extent can these tools be redeployed to the task of DRR? This question underlies the chapters in Part II of the book. By and large the various authors conclude that there is substantial scope for using environmental law tools for DRR purposes. There is not a need, therefore, to reinvent the wheel in response to the challenges of risk reduction in international disaster law; rather environmental law offers a range of approaches, principles and even treaty regimes that have scope to be adapted to the needs of DRR. However, although it is possible to envisage new applications for environmental law tools in the field of disaster prevention, preparedness and mitigation, it should be borne in mind that such tools have often faced difficulties of poor implementation in the environmental arena that may carry over to the DRR field. The first chapter of Part II authored by Denis Edwards discusses Disaster Risk Assessment: An Appraisal of European Union Environmental Law. Edwards’ goal in this chapter is to assess the state of European Union (EU) regional environmental laws from the standpoint of disaster risk assessment. While EU environmental law is underpinned by principles of prevention and precaution, and has a long-standing regime for the assessment and reduction of risks from industrial accidents under the Seveso directive, its focus on DRR is more recent. This has been prompted in part by international developments such as the Hyogo Framework, as well as growing concerns over the impacts of 82  Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14, para. 101. 83  Ibid.

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climate change. Focusing on the extent to which EU environmental law contains norms and principles relevant to disaster risk assessment and risk reduction, Edwards surveys instruments such as the Floods Directive, the Environmental Impact Assessment (EIA) Directive and the Directive on Strategic Environmental Assessment. His conclusion is that—beyond the specific contexts of flood management and preparedness and emergency response in the case of certain industrial accidents—natural disaster risk assessment is not yet integral to EU environmental measures, though pending amendments to the EIA Directive will go some way to addressing this deficiency. The following two chapters, by A. Dan Tarlock and Mary Picard, focus on the specific area of international and regional water law, and the capacity of treaties in this field to provide tools for responding to water-related disasters. Tarlock’s focus in his contribution is on The Potential Role of International Environmental and Water Law to Prevent and Mitigate Water-Related Disasters, including severe floods, droughts and the collapse of stressed aquatic ecosystems. In this regard, he particularly examines the potential of the UN Watercourses Convention—which came into force in 2014—arguing that the Convention provides relevant, if underdeveloped, principles to address the three types of water-related disasters. Acknowledging the central role of nation states to prevent water-related disasters, Tarlock nonetheless sees scope for international environmental and water law’s key duties of transboundary harm prevention and cooperation to foster efforts at shared management, with better disaster prevention and mitigation as a potential by-product. Mary Picard’s chapter on Water Treaty Regimes as a Vehicle for Cooperation to Reduce Water-Related Disaster Risk: The Case of Southern Africa and the Zambesi Basin takes a regional approach in assessing the scope for water basin treaties to contribute to DRR. Picard recognizes that as a historical matter, treaties for the management of transboundary waterways have not been designed as tools for responding to water-related disaster risks such as floods and droughts. The question she explores in the chapter—using regional water treaties in Southern Africa and the Zambesi basin as a case study—is whether such treaties can be repurposed for DRR, drawing on evolving international policy and legal understanding of the links between watercourse management, climate change and DRR. Her assessment highlights three main conclusions: (1) that there is increasing integration of DRR and sustainable development concerns in water management regimes, including in the specific regional treaties examined; (2) that the closer the treaty is to an actual river basin, the more it can be tailored to local needs, which in the case of Southern Africa and the Zambesi basin, includes coordinating the riparian states in managing slow-onset disasters that dovetail with development planning; and (3) that there is a role for

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regional water management authorities in developing the necessary policies, strategies and standard operating procedures to ensure that emergency notification and response coordination for sudden-onset disasters in shared river basins is better implemented and institutionalized. The following chapter by Arden Rowell and Lesley Wexler—Valuing Foreign Disasters in International Environmental Law—turns from a consideration of tools under international environmental law treaties to the question of how legal policymakers should conceive of foreign—as opposed to domestic— disaster risk. The chapter begins by exploring the distinctive challenges that legal policymakers face when dealing with foreign disasters. Rowell and Wexler argue that tools for explicit valuation of risk, such as those that are routinely incorporated into domestic cost-benefit analyses, are particularly useful given the political, philosophical, psychosocial, and practical challenges of managing and responding to foreign disasters. Finally, the chapter grapples with the question of what opportunities exist for incorporating explicit disaster risk valuation into international environmental law. The authors see explicit valuation as potentially informing the satisfaction of threshold conditions to trigger legal requirements; choosing among multiple feasible compliance strategies; adding content to the principle of common but differentiated responsibilities; operationalizing the precautionary principle; and justifying the creation of legal strategies for special disaster risks such as those that are truly uncertain or those with extremely damaging potential outcomes. The final chapter of Part II contributed by Michael Faure considers Liability and Compensation as Instruments of Disaster Risk Reduction? While liability and compensation provisions under international environmental treaties are focused on ex post measures to deal with the aftermath of disasters like oil spills or nuclear accidents, they may also function to provide ex ante incentives for DRR. As Faure identifies, the specific design of liability and compensation rules is critical in determining whether they function to provide ex ante incentives for actions by tortfeasors to prevent or mitigate potential risks. The chapter demonstrates how different types of liability rules across the regimes applicable to nuclear safety, oil and hazardous substance pollution of marine areas, and civil aviation influence incentives for DRR activities to prevent associated technological disasters. Faure notes that liability rules are generally not available in the case of natural disasters, with the result that other forms of compensation measures may be used, such as insurance or compensation funds. The chapter finds a close link between an ex post finding of liability and ex ante DRR but that these positive incentive effects are less likely in the case of (government financed) compensation schemes or funds.

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Linking Institutions and Approaches in the Environmental and Disaster Risk Management Fields

As with many other types of linkages that arise in international law—trade and the environment, human rights and security etc.—a key question concerns how better coordination can be achieved between institutions and approaches dealing with overlapping issues from different perspectives. Calls for enhanced coordination in dealing with disaster risk have come from all sides. For instance, the Sendai Framework articulates as a “guiding principle” that: [t]he development, strengthening and implementation of relevant policies, plans, practices and mechanisms need to aim at coherence, as appropriate, across sustainable development and growth, food security, health and safety, climate change and variability, environmental management and disaster risk reduction agendas. Disaster risk reduction is essential to achieve sustainable development.84 However, although the links between DRR and climate change adaptation, and between DRR, environmental management and sustainable development more broadly, are increasingly recognized at a political level, a substantial “disconnect” persists between DRR and other fields. According to the Intergovernmental Panel on Climate Change (IPCC), this reflects “different institutional structures and a lack of awareness of linkages.”85 As Anne Siders’ chapter in Part I highlights, this may lead to common terms like “resilience” being understood in substantially different ways in different fields.86 Achieving better coordination between DRR, environmental protection and sustainable development is likely to require more than just the articulation of a common language; it will also be necessary to identify and develop workable models and approaches for bridging the gap between practices in the environmental and disaster management areas. At the same time, practitioners need to bear in mind that independent efforts to address disaster risk in different forums—

84  Sendai Framework, supra note 62, para. 19(h). 85  IPCC, Climate Change 2007, Working Group II: Impacts, Adaptation and Vulnerability, section 20.5, at https://www.ipcc.ch/publications_and_data/ar4/wg2/en/ch20s20-5.html. 86  See Anne Siders, Resilient Incoherence—Seeking Common Language for Climate Change Adaptation, Disaster Risk Reduction and Sustainable Development, chapter 5, in this volume.

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sometimes pejoratively labeled “fragmentation”87—may not always be detrimental, particularly where one forum offers greater prospects for moving an issue forward than others or where a diversity of forums addressing an issue promotes innovation and experimentation.88 The chapters in Part III of the book approach the question of greater coordination between environmental protection and disaster risk management from a variety of perspectives. Nicholas A. Robinson’s chapter at the start of Part III, discussing The UN SDGs and Environmental Law: Cooperative Remedies for Natural Disaster Risks, explains the role of general principles and tools of environmental law in forging linkages between environmental protection, sustainable development, and DRR. Robinson’s analysis focuses on the recently concluded UN SDGs as important tools for designing cooperative remedies, applicable across many contexts, which give a priority to reducing disaster risk. Robinson’s close examination of the content and scope of each of the SDGs explains the different ways in which these goals and their supporting indicators can incentivize ecosystem-based adaptation to disaster risk. He sees the SDGs as “pregnant with the possibility that states will wake from their neglect of environmental law and deploy its tools to avert disaster damage.” However, ultimately, Robinson argues, the capacity of environmental legal principles and agreements to reduce disaster risks will depend on conceiving disaster response as a core component of the longer-term mission of attaining conditions for sustainable development. The following chapter by Carl Bruch, Rene Nijenhuis and Shanna McClain on International Frameworks Governing Environmental Emergency Preparedness and Response: An Assessment of Approaches undertakes a fine-grained analysis of the more than 30 treaty arrangements and instruments applicable to environmental emergency response. As highlighted in section 2 above, the notion of an environmental emergency is one that frequently blurs the lines between the environmental and disaster management fields and hence represents a microcosm of the challenges of coordination and coherence across these different areas. Bruch, Nijenhuis and McClain identify, as a key limitation, the lack of an overarching framework within which various institutions 87   For the International Law Commission’s definitive study on the issue see Martii Koskenniemi, Fragmentation of International Law: Difficulties Arising from Diversi­ fication and Expansion of International Law, Report of the Study Group of the Inter­ national Law Commission, A/CN.4/L.682, Apr. 13, 2006. 88  See, e.g., Elinor Ostrom, A Polycentric Approach for Coping with Climate Change, World Bank Policy Working Paper, No. 5095, Oct. 1, 2009.

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and ­agreements concerned with environmental emergency preparedness and response operate. As a result, they argue, a “patchwork” of agreements has emerged, addressing specific types of disasters, specific regions, and specific responses, that lacks integration and coordination and which has perpetuated differing operational responses to natural and technological disasters. At the conclusion of the chapter the authors consider options for improving coordination, integration and the efficacy of these arrangements, including through securing a political mandate for improving international environmental emergency governance systems and by developing a new international legal instrument governing notification and response to environmental emergencies. How best to improve institutional coordination in complex governance contexts is also a focus of the next chapter by Hari Osofsky, Jessica Shadian and Sara Fechtelkotter on Preventing and Responding to Arctic Offshore Drilling Disasters: The Role of Hybrid Cooperation. This chapter assesses challenges of linkage and coordination across diverse stakeholders and institutions engaged in environmental protection, resource exploitation, and disaster mitigation activities in the region of the Arctic. Climate change in this region, as a result of rapid melting, is opening up new frontiers for exploration and exploitation of natural resources, such as oil and gas. At the same time, the challenges of exploration in this environment, and the difficulties of responding to disasters like oil spills if they occur, remain significant. The chapter highlights the complex and fragmented governance arrangements that govern natural resource exploitation in this region as another key challenge. The authors propose a model of “hybrid cooperation” as a way forward for managing these diverse challenges, a form of cooperation in which diverse public and private stakeholders at multiple governmental levels coordinate their efforts through either (1) creating institutions or (2) integrating each other’s standards in agreements and regulations. Osofsky, Shadian and Fechtelkotter examine six case studies of emerging instances of hybrid cooperation in the Arctic offshore drilling context. While it is too early to know how successful many of these efforts will be in addressing governance fragmentation, the authors see substantial potential for this cooperative model to address governance concerns constructively in complex regulatory settings. The final chapter of Part III is the contribution by Anastasia Telesetsky discussing Overlapping International Disaster Law Approaches with International Environmental Law Regimes to Address Latent Ecological Disaster. Telesetsky’s focus is on the latent ecological disaster of hypoxia caused by o­ ver-nutrification of marine waters from land-based activities. Whereas many of the other chapters in the book ask what contribution international environmental law can

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make to the developing field of international disaster law, Telesetsky reverses this question. Noting the many failures and lack of urgency to address overnutrification problems evident in the plethora of treaty instruments that govern land-based marine pollution, Telesetsky asks whether reframing the issue of hypoxia through a disaster lens might prompt a more coordinated, effective response. She argues that applying concepts of active disaster risk reduction to the implementation of international environmental legal regimes might enhance the effective domestication of international environmental law, particularly in areas such as land-based pollution where little success has been achieved. Part III concludes with an afterword on Environmental Disasters and Human Rights contributed by UN Special Rapporteur on Human Rights and the Environment, John H. Knox. While prior chapters focus primarily on the relationship between international environmental law and DRR, this essay considers the contribution that the field of environmental human rights law may make to the developing international disaster prevention regime. Highlighting environmental human rights’ tripartite focus on procedural mechanisms (such as information, participation and access to justice), substantive human rights protections, and protections for particularly vulnerable groups, Knox explains the ways that human rights law may assist the development of standards and institutional responses for DRR. The underlying message of the essay is one that runs through much of the book: that those seeking to develop and interpret an effective regime of DRR should not overlook the concrete ways that it can be strengthened by perspectives from other areas of international law. 6 Conclusion At the end of their discussion at the Stanford workshop that inspired this book, participants acknowledged that they had only begun to unwrap the potential for international environmental law, tools and principles to contribute to reducing the risk of disasters and their impacts on human beings. The potential for a greater linking of international environmental and disaster law— exemplified most clearly in the context of the developing climate change regime, with its tripartite focus on mitigation, adaptation, and loss and ­damage—also remains in its infancy but holds important promise. It is hoped that the thoughtful reflections contained here will open a wider dialogue among academics and practitioners in both fields, with life-saving improvements to legal approaches in the future.

PART 1 The (Porous) Border between Disaster Law and Environmental Law

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CHAPTER 2

Climate Change and the Narrative of Disaster Lisa Grow Sun Introduction The way we talk about disasters—how we describe them and the metaphors we use—matters. The frames we choose help determine the solutions we imagine, the resources we dedicate, the institutions we mobilize, the policy approaches we select, and the legal rules we craft.1 Thus, the way we narrate, describe, limit, and categorize disasters fundamentally shapes our approaches and solutions. And the perceived etiology of disasters has traditionally played a central role in disaster narratives: What is the origin of disasters? Who causes them? Who is to blame? The development and entrenchment of these narratives represents both an attempt to assign meaning to life and the events that shape the human condition, and an exercise of power, most often by elites, to bend that meaning for their own purposes and to their own advantage and benefit.2 The way society frames natural disasters has changed and evolved, but the role of human responsibility has always featured prominently in disaster narratives. Historically, natural disasters—earthquakes, fires, hurricanes, floods, or disease epidemics—were often framed as divine punishments: retribution from God for humanity’s sins.3 Over time, other competing narratives of 1  Cf. Patrick S. Roberts, Disasters and the American State: How Politicians, Bureaucrats, And The Public Prepare for the Unexpected 8 (2013) (“[O]ne process shapes disaster policy— social construction.”). 2  See Gregory V. Button, The Nation of Disaster: The Media Response to Oil Spills in Great Britain, in The Angry Earth: Disaster in Anthropological Perspective 113, 129 (Anthony Oliver-Smith & Susanna M. Hoffman eds., 1999) (“The underlying cultural logic of disaster narratives tends to reinforce the hegemonic forces of society.”); Naomi Klein, The Shock Doctrine 7–11 (2007) (arguing that elites use disaster shocks to construct “clean slates” on which they can impose free-market policy reforms). 3  Kevin Rozario, The Culture of Calamity: Disaster & The Making of Modern America 41 (2007) (arguing that “seventeenth-century Puritans . . . rarely deviated from the view that calamities were temporal punishments”). Some religious leaders and commentators emphasized the “corrective,” rather than the punitive, aspects of God’s chastisement, arguing that disasters

© Peel and Fisher (eds), ���6 | doi ��.��63/9789004318816_003

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disaster arose and the conception of natural disasters began to change. While natural disasters were still viewed as “Acts of God,” those Acts of God were no longer ascribable to human behavior. That is, rather than sinners causing natural disasters by calling down God’s chastisement, natural disasters deemed Acts of God came to absolve humans of responsibility all together. Indeed, in the legal system, people regularly invoked the notion of an “Act of God” to excuse them from responsibility for fulfilling a contract or to escape tort liability for the consequences of a natural event.4 Thus, disasters came to serve as a legal excuse for failing to perform duties that the law otherwise imposed, enacting legal (if not divine) absolution rather than punishment. The framing of natural disasters continues to shift. While certainly still in flux, increasingly, there is a strong recognition among most disaster scholars, and at least some policymakers, that the human contribution to disasters must be understood and recognized.5 Humans must share at least some of the culpability with God. Indeed, there is a near consensus in the disaster literature that there is no such thing as a truly natural disaster.6 Natural events like earthquakes and hurricanes become disasters only as they interact with human systems and impact human communities and individuals.7 Thus,

were blessings that paved the way for spiritual, and often material, progress. Id. at 50–52. The Puritan view that God blessed the spiritually obedient and used natural calamities to punish the disobedient imparted “a sense of psychic control over their environment”: “If sins spurred God to send storms and earthquakes, repentance was a means for restoring the natural world.” Id. at 39. 4  See, e.g., Jill M. Fraley, Re-Examining Acts of God, 27 Pace Envtl. L. Rev. 669, 669 (2010) (tracing the history of the Act of God defense and noting that “[f]or more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man’s anticipation and control”); Dennis Binder, Act of God or Act of Man: A Reappraisal of the Act of God Defense in Tort Law, 15 Rev. Litig. 1, 4 (1996) (examining the history of the Act of God defense and its application to negligence principles in American jurisprudence). 5  See, e.g., Charles Perrow, The Next Catastrophe: Reducing Our Vulnerability to Natural, Industrial, And Terrorist Disasters 317 (2007) (arguing that society must recognize and address the growing concentration of population and infrastructure in dangerous locales in order to mitigate disaster costs). 6  See, e.g., Daniel A. Farber, et al., Disaster Law and Policy 3–4 (3d. ed. 2015); Thomas A. Birkland, Disasters, Focusing Events, and Sociolegal Studies, in Disaster and Sociolegal Studies 235, 237 (Susan Sterett ed., 2013). 7  See, e.g., Dennis S. Mileti, Disasters by Design: A Reassessment of Natural Hazards in the United States 3 (1999) (“Many disaster losses—rather than stemming from unexpected events—are the predictable result of interactions among three major systems: the physical environment, which includes hazardous events; the social and demographic characteristics

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the consequences of natural disasters are at least as much a function of where and how we live as a function of the natural hazards themselves.8 While the foundations for appreciating this human role in setting the stage for disaster were laid as early as the 1755 Lisbon earthquake by thinkers like Rousseau,9 this understanding has been slow to take hold in many quarters. Indeed, rather than emphasizing the upfront human contribution to disasters, we have, in recent years, tended instead to overemphasize human failings at the back-end, during the response phase of disasters.10 Thus, for example, a narrative of victim-blaming has sometimes taken hold in the aftermath of large disasters, in which disaster survivors are accused of antisocial behavior, including looting and violence, that supposedly interferes with effective disaster response and exacerbates the harm of disasters.11 Similarly, some states have moved to criminalize non-evacuation behavior by residents, an approach that assigns not only moral blame, but criminal liability, to the difficult choices individuals and families make about whether and when to evacuate in the face of impending disaster.12 More broadly, critiques of “natural” disaster policy have often tended to focus on inadequate response to disasters, rather than on inadequate mitigation of risk, and this emphasis reflects and reinforces the belief that the disaster itself was outside human control and that the only role for human agency and responsibility is in preparing to respond to disasters and then responding of the communities that experience them; and the buildings, roads, bridges, and other components of the constructed environment.”). 8  See, e.g., id. at 155–56 (arguing that “[n]o single approach to bringing sustainable hazards mitigation into existence shows more promise at this time than increased use of sound and equitable land-use management”); Farber, supra note 6, passim; Perrow, supra note 5, at 29 (arguing that increasing concentration of population and infrastructure in disasterprone areas is the primary driver of sky-rocketing disaster costs). 9  Rousseau argued that urbanization, rather than nature, was responsible for the Lisbon earthquake deaths. Rozario, supra note 3, at 19 (quoting Rousseau asking whether “the order of the world ought to change according to our whims, that nature ought to be subjugated to our laws, and that in order to interdict an earthquake in some place, we have only to build a city there?”). 10  Mileti, supra note 7, at 1 (explaining that the focus of disaster policy has historically been on “picking up the pieces after disasters,” and that mitigating disaster risk ahead of time has only recently become a “cornerstone of the nation’s approach to addressing natural and technological hazards”). 11  See, e.g., Lisa Grow Sun, Disaster Mythology and the Law, 96 Cornell L. Rev. 1131, 1134–36 (2011). 12  See Brandon Curtis, Criminalizing Non-Evacuation Behavior: Unintended Consequences and Undesirable Results, 2015 BYU L. Rev. 503, 505.

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to them effectively. Thus, for example, the Bipartisan Committee Report on Hurricane Katrina concluded that “[i]f 9/11 was a failure of imagination, then Katrina was a failure of initiative”—initiative in planning for effective emergency response.13 While the 9/11 Commission Report focused primarily on the need for better detection and prevention of terrorism, the Katrina report focused almost exclusively on the failure to effectively prepare to respond to disasters that, the report tacitly assumed, are all but inevitable. In the realm of natural disasters, that assumption of inevitability is deeply engrained and has been difficult to shake.14 Today, the assumption that human agency plays a role only in responding to natural disasters once they are underway, and not in creating them in the first instance, is challenged both by the growing recognition that disaster impacts are shaped by human exposure and vulnerability to hazards and by the recognition that anthropogenic climate change is increasingly driving and exacerbating extreme events. This chapter considers some of the potential consequences of a fuller recognition of the human role in causing so-called natural disasters and a concomitant blurring of the traditional distinction between “manmade” and “natural” disasters. At the same time, this chapter reveals that the emerging consensus that no disaster is truly natural masks potentially deep divisions about how that human role ought to be conceptualized. Indeed, the various interests at stake and the convergence of two quite different understandings of human contribution to disaster—one rooted in traditional approaches to disaster mitigation and the other rooted in climate 13  See Select Bipartisan Comm’n to Investigate the Preparation for and Response to Hurricane Katrina, A Failure of Initiative, H.R. Rep. No. 109–377, at xi (2006); see also id. at x (explaining that the report “focused on the preparation for and response to Katrina, for the most part paring down the timeline to one week before and two weeks after the storm”). The primary exception to the “response-failure” focus of the report was the discussion of levee failure, which can be viewed as a failure to manage and mitigate risk. See id. at 87. 14  Indeed, one might define a truly natural disaster as one that is inevitable and wholly outside human control. Cf. Robin Kundis Craig, “Stationarity is Dead”—Long Live Transformation: Five Principles for Climate Change Adaptation Law, 35 Harv. Envtl. L Rev. 9, 38 (2010) (suggesting that climate change adaptation (but not mitigation) law should “treat[] climate change impacts as though they were arising entirely from natural causes” because although “[h]uman industrialization may have set climate change in motion, . . . the planet’s systems are responding in ways that we do not fully understand and at spatial and temporal scales that far exceed the scope of existing regulatory mechanisms,” and thus “[i]mpacts from climate change, for the next several decades at least, are largely beyond human control, regardless of human mitigation efforts”).

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change policy—all but guarantee that there will be no single narrative of human agency in disaster, but rather multiple, potentially conflicting narratives that need to be unpacked, identified, and analyzed. This chapter explores six potential consequences of more fully acknowledging the human role in “natural” disasters and blurring—or eventually abandoning altogether—the traditional distinction between manmade and natural disasters: (1) increasing investment in disaster mitigation; (2) shifting understandings of moral and legal responsibility to pay for all stages of disaster management; (3) growing potential for the development of “corrosive communities” in the aftermath of disasters formerly conceptualized as natural in origin; (4) increasing harmonization of the goals of environmental and disaster law; (5) rising acceptance of drastic engineered solutions to disasters; and (6) a continuing tendency to meld disasters, on the one hand, with terrorism and war, on the other.15 This exploration of potential consequences is less prediction than thought-exercise, contemplating how narratives reconceptualizing human agency in natural disaster might affect disaster law and policy at many different scales. Throughout, the chapter emphasizes the multiplicity of potential narratives of the human role in disaster and considers the potential consequences of divergent narratives. 1

Increasing Investment in Disaster Mitigation

One might well imagine that a fuller acknowledgment of the human role in creating natural disasters would increase the amount of attention and resources dedicated to minimizing that human contribution to disaster risk. If forced to confront more fully the ways in which human action is driving disaster costs, policymakers might substantially increase investment in mitigating natural disaster risk in the first instance, rather than just responding once that risk comes to fruition. Moreover, one possible reason, among others, that natural disaster risk is often undervalued and inadequately mitigated is that, as a cognitive matter, manmade risks attract more attention and are judged to be more serious than 15  Although this chapter addresses only these six potential consequences, blurring or collapsing the distinction between manmade and “natural” disasters would likely have many other effects, as well. For example, the demise of the natural/manmade distinction would likely reinforce the all-hazards planning approach to disaster management that the U.S. federal government has endorsed. See, e.g., Farber, supra note 6, at 157–58 (describing the all-hazards approach to disaster planning).

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risks associated with natural processes.16 Formally recognizing the important human contribution to natural disaster risk might counter somewhat the effect of this manmade-versus-natural heuristic. Of course, the fact that humans tend to pay more attention to manmade risks than natural ones may play only a small role in underinvestment in mitigation. There are a wide variety of obstacles that conspire to prevent optimal investment in mitigation measures. For example, investing in mitigation measures pays much lower political dividends to politicians than investing in highprofile response and compensation measures after disaster strikes.17 Response measures have a clear political pay-off to politicians then in office who can claim credit for rescuing individuals and saving communities, while mitigation measures are unlikely to pay off in any obvious way while the official who spent capital to implement them is still in office.18 Additionally, in the U.S., proposed mitigation measures are often opposed by property-rights advocates, and policymakers are sometimes deterred from implementing such measures because of the threat of Takings liability.19 Thus, while narratives that more 16  See, e.g., Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, Stan. L. Rev. 683, 709 (1999). 17  See, e.g., Mileti, supra note 7, at 160 (arguing that many local government concerns are “more pressing” than disaster mitigation and that “the costs of mitigation are immediate while the benefits are uncertain, do not occur during the tenure of current elected officials and are not visible”); Perrow, supra note 5, at 8 (“Perverse incentives in the form of subsidized insurance and federal reconstruction funds, combined with powerful local growth policies, increase our losses from natural disasters every decade.”); Roberts, supra note 1, at 140 (“Commercial pressures to develop coastal lands and the short time horizons of politicians focused on elections limit what FEMA civil servants can do to prepare for major disasters.”); id. at 141 (“Local leaders face pressure from citizens and developers to build in vulnerable areas or divert institutions, such as levee boards, from their original purpose to more short-sighted activities that provide immediate benefits to constituents and carry electoral benefits.”). 18  See, e.g., Raymond J. Burby, Hurricane Katrina and the Paradoxes of Government Disaster Policy: Bringing About Wise Governmental Decisions for Hazardous Areas, 604 Annals of Am. Acad. Pol. & Soc. Sci. 171, 184 (2006). The disaster-aid payoff for politicians is supported by the periodicity of U.S. disaster declarations, which “spike” in presidential election years and “dramatically plummet” in the “years immediately following a presidential election.” See James Ming Chen, Legal Signal Processing 1 (June 4, 2015), available at http:// ssrn.com/abstract=2614273. 19  See, e.g., Booz, Allen, & Hamilton, Hazard and Resiliency Planning: Perceived Benefits and Barriers Among Land Use Planners, National Oceanic and Atmospheric Administration Costal Services Center, p. 31, Apr. 26, 2010, available at http://www.floods.org/ace-files/ documentlibrary/NOAA_CSC_Research_Report.pdf (“Planners said that property owners

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fully acknowledge the human role in causing natural disasters may lead to some increase in funding for mitigation activities, mitigation measures are still likely to be undersupplied. 2

Shifting Understandings of Moral and Legal Responsibility for Disaster Mitigation, Response, Compensation, and Recovery

Closely related to questions about how much money will be invested in mitigation measures are questions about who should be morally or legally obligated to pay—not just for mitigation measures—but for all phases of disaster management. The most basic reason for distinguishing between manmade and natural disasters is that a manmade origin suggests potential moral and legal obligations to mitigate risk in the first instance, to aid victims of the disaster in the immediate aftermath, and to compensate those who are harmed and aid in their long-term recovery.20 Reorienting our understanding of the causes of disaster will presumably alter existing intuitions and understandings about who should pay the costs of mitigating and responding to disasters. Interestingly, at least in the United States, victims of serious natural disasters have long been considered to have a strong claim on the national polity felt [disaster mitigation measures] infringed on their rights, making local governments afraid of litigation.”). Some of the pressure that Takings suits exert against disaster mitigation may be counterbalanced by the suggestion in some recent Takings cases that the benefits of adaptation measures—such as storm protection from rebuilding dunes— should be taken into account in setting just compensation for the takings that enabled those adaptation measures. See Jacqueline Peel & Hari M. Osofsky, Sue to Adapt, 99 Minn. L. Rev. 2177, 2202–05 for a thoughtful discussion of these cases and their implications. Peel & Osofsky also consider the potential of adaptation litigation more broadly to incentivize local jurisdictions to engage in adaptation planning. See id. at 2248. 20  See, e.g., Robert R.M. Verchick, Disaster Justice: The Geography of Human Capability, 23 Duke Envtl. L. & Pol’y F. 23, 29 (2012) (arguing that considering the role of human agency and attribution for disasters may help “draw the line between misfortune and injustice” and is a “first step in understanding” disaster justice issues). Thus, those responsible for technological disasters have often tried to situate those disasters within the natural disaster narrative in an attempt to minimize their culpability and financial responsibility for disaster impacts. Button, supra note 2, at 130 (arguing that the narrative of technological disasters, particularly environmental disasters, often “attempt[s] to naturalize the disaster,” by emphasizing the effects on the environment rather than people and by attempting to situate the disaster “outside human control,” such that disaster response “is depicted as a valiant, and often futile struggle with Mother Nature” and the disaster appears “more like an accident and less the result of human negligence” and responsibility).

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(and arguably on the international polity) both for short-term aid and at least some longer-term compensation. Indeed, as Michele Landis Dauber has argued, many other groups seeking federal aid in the United States have tried to situate themselves within the narrative of natural disaster victims (“innocent” victims of outside forces beyond their control) in order to strengthen their own claims for federal relief.21 While this narrative has been challenged in recent years by the portrayal of some disaster victims as antisocial hooligans who exploit disaster chaos to prey on other victims22 and, to some extent by arguments that victims exposed themselves to hazards,23 most U.S. disaster victims have nonetheless historically occupied a privileged place in the hierarchy of claims to societal aid—judged more deserving or worthy of compensation and help than other victims of more routine “bad luck” or misfortune, from poverty to more mundane, everyday accidents.24 21  Michele Landis Dauber, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State 13–14 (2013). Dauber does note, however, that the disaster narrative of “blameless loss,” which has been “so central to the U.S. welfare state,” is not l­ imited to natural disasters. Michelle Landis Dauber, The Real Third Rail of American Politics, in Catastrophe: Law, Politics, and the Humanitarian Impulse 60, 72 (Austin Sarat & Javier Lezaun, eds. 2009). Instead, “nature is less a gatekeeper than a particularly useful ally in making the case that a loss was beyond the victim’s control to prevent.” Id. at 73. Thus, she argues, “the boundary between natural and man-made events has proven in practice to be of only secondary importance to decisions about whether to provide disaster relief.” Id. 22  See Sun, supra note 11, at 1134–36. 23  Dauber, supra note 21, at 14 (noting that “[c]laims for relief of floods and hurricanes have long been subject to criticism that their victims could have foreseen and prevented the damage by avoiding building in areas that had repeatedly suffered similar events” and that, just as “it is possible to have man-made ‘disaster,’ it is possible to move a ‘natural’ disaster outside the realm of disaster entirely”). Dauber argues that the “fluidity” between natural and man-made disasters—about “what constitutes a true ‘disaster’ ”—has been driven by debates over the legitimacy and priority of claims to disaster aid. Id. at 14 (“Money is the driver of these contests [over the meaning of disaster]: there is a direct relationship in the American context between the ability to represent a loss as blameless and the amount of aid that can be claimed. It is far better when requesting federal funds to be standing hip deep in water than to be standing in an unemployment line.”). 24  In addition to the “innocent victim” narrative identified by Michele Landis Dauber, there are a number of other possible explanations for the focus on compensating disaster victims, rather than victims of poverty, illness, job loss, and other misfortune. Kevin Rozario argues that “disaster victims command[ed] a singular sympathy” because the “calamities were the sort of afflictions that struck the worthy and unworthy alike,” and potential donors could more easily “identify with disaster victims than with, say, the ‘dangerous poor.’ ” Rozario, supra note 3, at 131. Additionally, “disaster relief promised to be a one-time deal”—a “temporary hand up,” rather than a “permanent dependen[cy].” Id.

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However, as disasters continue to multiply and their costs mount, compassion fatigue25 and resource constraints may contract, rather than expand, the category of disaster victims whose claims are viewed as compelling. One possibility is that recognizing human responsibility for disasters that used to be thought of as natural in origin might suggest that providing disaster relief is not the common humanitarian duty of mankind but should be the primary (or sole) responsibility of those most responsible for the harms. Thus, for example, the New York Times reported that charitable contributions to victims of the 2010 BP oil spill were far lower than donations to victims of “natural disasters,” such as Hurricane Katrina and the Haitian earthquake.26 Experts attributed the lower donation rates to a widespread public perception that BP should bear the responsibility for making victims of the manmade disaster whole.27 Whether this same sentiment would prevail in situations in which the human responsibility for manmade disasters is arguably much more diffuse, or collectively shared, is unclear. Alternatively, recognizing the human contribution to disaster might lead to the privileging of disaster claims with some firmer tie to human c­ ulpability. Another possible political reason for distinguishing between disaster victims and victims of poverty is that disasters and disaster victims are highly visible and attract significant media attention, whereas poverty is a less visible form of human suffering. Thus, the social cost of witnessing unabated human suffering may be higher for disasters than for poverty because of the relative visibility of the victims. See id. (suggesting that the immense publicity that the “suffering of disaster victims” tends to garner increases the likelihood that they will obtain government aid). One might argue that in more recent days, the U.S. focus on disaster victims serves to justify the existence of the security state in ways that focusing on victims of other mundane misfortunes does not. Cf. id. at 143 (“Over time, an overinvestment in spectacular calamities helped to ensure that disaster victims rather than, say, the homeless, the poor, and other victims of economic misfortune, would be deemed uniquely worthy of attention and support from government, the public, and philanthropic organizations. The modern regime of disaster management was established by media preoccupations as well as an intricate combination of constitutional considerations, economic interest, and security commitments.”). 25  Paul Slovic, Psychic Numbing and Genocide, Psychol. Sci. Agenda (Nov. 2007), http://www .apa.org/science/about/psa/2007/11/slovic.aspx (quoting writer Annie Dillard’s description of “compassion fatigue,” in which “[s]he struggles to think straight about the great losses that the world ignores: ‘More than two million children die a year from diarrhea and eight hundred thousand from measles. Do we blink?’ ” and “asks ‘At what number do other individuals blur for me?’ ”). 26  Andrew Adam Newman, Oil Spill Aid is Small, But Some Companies Step Up, N.Y. Times, Aug. 2, 2010, http://www.nytimes.com/2010/08/03/business/media/03adco.html?_r=0. 27  Id.

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Arguably, if collective responsibility for climate disasters is emphasized, disaster aid might flow more freely to victims of those type of disasters. Giving priority to such claims might lead to divergent treatment of climate disasters and so-called geophysical disasters (such as earthquakes, tsunamis, and volcanic eruptions), for which any climate change influence is much more attenuated or nonexistent.28 Thus, rather than collapsing the categories of manmade and natural disasters, recognition of human-caused climate disasters as a category of disasters for which man bears particular responsibility might simply carve up the world of disasters in a different way, redefining natural disasters (primarily geophysical disasters) as a narrower category less deserving of compensation. That result would be in some tension with the position advocated by many disaster scholars that vulnerability should be addressed, regardless of the causal agent that lays it bare, but in many respects disaster policy itself already draws such lines by privileging the claims of vulnerable individuals harmed by disasters over those harmed by chronic disease, poverty, and a myriad of other social problems. Of course, human decisions and land-use patterns shape our exposure and vulnerability to geophysical disasters, as well, but that aspect of human contribution might be eclipsed and overlooked if policymakers emphasize the climate-change strand of human responsibility to define climate disasters out of the natural disaster category. Nonetheless, the notion that geophysical disasters might be the only true “natural” disasters is challenged, at least in the case of earthquakes, not only by the fact that zoning and building codes have a major impact on earthquake damages29 but by the increasing incidence of manmade earthquakes triggered by human activities such as building

28  As Dan Farber’s chapter in this book argues, climate change may ultimately exacerbate harms from all disasters, including geophysical disasters, by draining disaster response and mitigation resources, weakening infrastructure, and decreasing resilience. See Daniel Farber, Disaster Law in the Anthropocene: Human Agency, Extreme Events, and International Law. Recently, some scientists have suggested a more direct link between climate change and geophysical disasters, such as earthquakes and volcanic eruptions. Alex Renton, More Fatal Earthquakes to Come, Geologists Warn, Newsweek, Apr. 28, 2015, http://www.newsweek.com/nepal-earthquake-could-have-been-manmade-disasterclimate-change-brings-326017.html (quoting scientists who suggest that sea-level rise, the melting of existing ice sheets, and changing rainfall patterns might trigger seismic activity along certain faults). 29  See Perrow, supra note 5, at 16.

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reservoirs30 and fracking.31 Likewise, the particularly dramatic and devastating effects of geophysical disasters may have enough emotional impact to continue to attract relatively high levels of post-disaster aid, even if the human contribution to these disasters is minimized vis-à-vis climate disasters. This discussion suggests that the effect that emphasizing the manmade contribution to natural disasters will have on moral and legal claims to ex ante aid for mitigation and preparation and ex post compensation for disaster damages may be less clear and more complex than has sometimes been acknowledged. In particular, the question of legal responsibility will be bound up with the kind of causal, manmade narrative that takes hold in the context of so-called natural disasters. There are at least several different narratives of human responsibility for natural disasters that might emerge. One narrative strand might emphasize collective responsibility—that “all of us” are responsible for natural disasters, either as contributors to climate change or as contributors to the structural factors that drive development in risky locations. A second narrative might emphasize that particular “bad actors” are primarily responsible for natural disasters—whether those bad actors are fossil-fuel-based power companies that produce greenhouse gases, developers that knowingly develop risky locales, or cities that approve such development or otherwise fail to mitigate new disaster risks posed by climate change. A narrative that looks like collective responsibility at one scale (for example, a domestic narrative in the United States that all U.S. citizens share responsibility for fossil fuel contributions to climate change) may look like a “bad actor” narrative at another scale (an international narrative that particular developed countries, like the United States, that contributed disproportionately to built-in climate change should bear particular responsibility for climate harms worldwide). A third narrative might instead stress that individual choice is the primary driver of natural disaster risk: that those who benefit from the ocean view or choose to build homes in the wildland-urban interface are themselves responsible for the disaster risk

30  See, e.g., Fan Xiao, Did the Zipingpu Dam Trigger China’s 2008 Earthquake?, Probe Int’l, (Dec. 2012), http://probeinternational.org/library/wp-content/uploads/2012/12/Fan-Xiao12-12 .pdf (exploring possibility that the May 2008 Sichuan earthquake may have been triggered by the recently constructed Zipingpu Reservoir, which was located near the fault). 31  See, e.g., Adrienne LaFrance, Man-Made Earthquakes Are Changing the Seismic Landscape, Atlantic, Aug. 8, 2014 (explaining that deep injection of fracking wastewater has caused a “flurry of earthquakes that registered at least 3.0 or higher in magnitude” in Oklahoma, “an uptick that scientists agree is linked to fracking in the state”).

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they incur, even if those risks are exacerbated by climate change to which the individual contribution is de minimis.32 Of course, each of these narratives has many potential (and potentially overlapping) variants, as well, and which of these narratives takes hold, and in what context, may have a significant effect on how successful disaster victims will be in pressing their compensation claims and how successful those in particularly vulnerable locales will be in attracting aid, ex ante, to mitigate disaster risk. Likewise, these narratives have important implications for calls for climate change justice (and, in particular, aid from industrialized to developing nations). For example, narratives of human responsibility for climate disasters that, while focusing on collective societal responsibility, emphasize land use and choices about where and what to build in risky areas are likely to allocate more blame to the local communities that most directly influence such choices or to national government policies that drive those local choices. This narrative would thus contrast with a collective responsibility narrative that focuses on the role of climate change itself (and the greenhouse gas emissions that drive it) in causing or exacerbating extreme events. And, of course, a narrative emphasizing individual choice to live in risky locations threatened by climate change would suggest individual, rather than collective, responsibility both for disaster mitigation and disaster losses.33 Given that these narratives have quite different implications for claims of moral and legal duty to compensate victims, one would expect that which narratives take hold will depend in no small part on who the narratives suggest should be held responsible for climate harm.34 Powerful elites—and powerful countries—can be expected to advance and promote narratives that minimize 32  These various disaster narratives correspond roughly to different narratives of responsibility for accidents in industrialized society: accidents are the inevitable byproduct of an industrialized society; accidents are the fault of bad actors who should be held liable for their negligence; and accidents are the result of choices by individuals who assume the risk of living in industrialized society. Each of these narratives likewise suggests different potential legal responses to accidents: socialized insurance, fault-based tort liability, and first-party insurance or individual responsibility, respectively. 33  This narrative would push back against the “innocent victim”-of-outside-forces narrative that Dauber argues has helped natural disaster victims seek aid and compensation in the past. See Dauber, supra note 21, at 14. 34  There may also be an important temporal component to disaster narratives. For example, a city facing sea-level rise might wish to promote an individual or local-collective responsibility narrative before a disaster to try to incentivize better land-use choices but might wish to advocate a more generalized collective responsibility narrative after a disaster occurs to lay claim to national or even international disaster aid and compensation.

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their own responsibility for compensation. Thus, at an international scale, one might expect developed countries to push narratives of vague, diffuse collective responsibility or individual or local community responsibility for land-use decisions. These patterns have already been observed in international negotiations over mechanisms for Loss and Damage under the United Nations Framework Convention on Climate Change.35 Similarly, as Professor Rob Verchick’s recent work suggests, many will resist the human responsibility narrative all together, if it implies the need for policy solutions (such as centralized control) with which they disagree.36 Additionally, different potential disaster narratives will resonate differently in different countries, not only as a result of their respective contributions to greenhouse gas emissions and the likely domestic effects of climate change but because of existing legal structures and cultural views and commitments about the role of the state in regulating private industry and in ensuring minimum standards of living for citizens. Moreover, the different narratives also reflect the assumptions, experience, and orientation of different disciplines approaching disaster risk from different perspectives. The narrative of local “land-use” responsibility is the narrative that most domestic disaster mitigation advocates have been pushing for decades, at least since the father of modern floodplain management, Gilbert White, declared, “Floods are ‘acts of god,’ but flood losses are largely acts of man.”37 Some domestic disaster mitigation advocates have favored a narrative of individual responsibility,38 but more recently, most have argued that individual choices about housing location are largely driven by structural factors, including wealth inequality, government regulation, and insurance markets, and that these structural contributions to poor land-use choices

35  See, e.g., Lou Del Bello, What’s Loss and Damage: Negotiating Tool or Moral Compass?, http:// roadtoparis.info/2015/10/21/whats-loss-and-damage-negotiating-tool-or-moral-compass/. 36  See Robert R.M. Verchick, Culture, Cognition, and Climate, 2016 Univ. Ill. L. Rev. __ (forthcoming) (discussing the implications of cultural cognition theory for climate change mitigation and adaptation policy). 37  See, e.g., John Schwartz, Obituary, Gilbert F. White, 94, Expert on Floods and Nature, Dies, N.Y. Times, Oct. 7, 2006, http://www.nytimes.com/2006/10/07/obituaries/07white.html. 38  For example, information-based solutions to disaster risk, which focus on providing individuals increased disclosure of disaster risks in property transactions, suggest a narrative of individual responsibility for imprudently purchasing property in risky locales. See, e.g., Farber, supra note 6, at 40–41 (describing California’s statutory requirement that sellers of land notify prospective purchasers about a variety of hazards, including flooding, earthquake, and wildfire risk).

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must be addressed if individuals are to live in safer locales.39 To some extent, those interested in climate change adaptation have taken a similar tack, finding some success in promoting local climate change adaptation efforts,40 but adaptation advocates also are likely to be more inclined to broader narratives of climate change responsibility that address issues of climate change justice, both domestically and internationally. Those advocates focused primarily on climate change mitigation—addressing greenhouse gas emissions that drive climate change—are even more likely to downplay any local land-use role in shaping disaster risk because they are focused on creating the right incentives for greenhouse gas mitigation at the national and international levels. Thus, the growing acceptance of the truism that no disaster is truly natural masks a deep and critical divide about who bears responsibility for the manmade contribution to disasters that were once denominated as natural. Rather than one consensus narrative of the role of human agency in disaster, we should expect that multiple competing narratives will vie for prominence in policy debates about the proper allocation of legal and moral responsibility for the costs of mitigating, responding to, and recovering from disaster. 3

Growing Potential for “Corrosive Communities”

In addition to prompting (and reflecting) reconsideration of the moral and legal blame for disaster-related harms, the increasing recognition of the human contribution to natural disasters may also have consequences for the long-term recovery of communities. One distinction traditionally found in the disaster literature between natural and manmade disasters is the contention that, at least in the United States, while natural disasters tend to result in “therapeutic communities,” in which community members come together, at least temporarily, to help each other deal with the disaster’s aftermath, technological disasters are much more likely to result in “corrosive communities,” characterized by social fragmentation and growing distrust in social institutions.41 A variety 39  See, e.g., Verchick, supra note 20, at 29 (noting that “[f]or decades, the scholarly literature on disaster has been moving toward the ‘socialization of disaster,’ particularly stressing the role of social inequality”). 40  See, e.g., Robert R.M. Verchick & Abby Hall, Adapting to Climate Change While Planning for Disaster: Footholds, Rope Lines, and the Iowa Floods, 2011 B.Y.U. L. Rev. 2203, 2215 (­describing some local adaptation efforts). 41  J. Steven Picou, et al., Disaster, Litigation, and the Corrosive Community, 82 Soc. Forces 1493, 1495–97 (2004); J. Steven Picou, Disaster Recovery as Translational Applied Sociology:

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of different causes of this corrosive community phenomenon have been suggested, many of which relate to the long-term uncertainty and ongoing risks associated with toxic contamination, the perceived failure of responsible institutions to react effectively, and the prolonged uncertainty associated with protracted litigation seeking to fix blame and obtain compensation.42 Some studies have identified litigation as the primary driver in the creation of corrosive communities.43 As the law increasingly acknowledges the human contribution to natural disasters and treats natural and manmade disasters as comparable or even indistinguishable, the likelihood of protracted litigation in the aftermath of natural disasters may continue to increase, and with it the risk that more communities will experience the effects of the corrosive community phenomenon.44 Of course, that risk might be outweighed by the salutary incentive effects of holding those that contribute to natural disasters legally and morally accountable. Moreover, it may well be that the other factors that contribute to the corrosive community (long-term uncertainty, blame of institutional actors, etc.), as well as post-disaster litigation, will inevitably increase in any event. Alternatively, compensation mechanisms other than litigation could defuse some of these risks45 and, if empirical research bears out this possibility, that understanding might influence the kind of international, national, and local compensation mechanisms—if any—developed for climate change harms.

Transforming Chronic Community Distress, 32 Humboldt J. Soc. Rel. 123, 131 (2009); see also id. at 129 (“[S]tudies that have compared ‘natural disaster’ impacts to ‘technological disaster’ impacts clearly reveal more severe, long-term social consequences for survivors of human-caused catastrophes.”). 42  Picou et al., supra note 41, at 1496; see also Picou, supra note 41, at 129 (“[A] preponderance of recent studies have documented that when disasters occur because of anthropogenic failure, often resulting in the contamination of natural, modified and built environments, a conflict-prone ‘definition of the situation’ emerges which has long-term community impacts that last for decades.”). 43  Picou et al., supra note 41, at 1514 (finding that the “most important social structural characteristic” in predicting post-disaster psychological stress that shapes the “corrosive community” is “being a plaintiff in the civil litigation” the disaster spurred). 44  See id. at 1515 (“Indeed, as technological disasters increase and as natural disasters increasingly are viewed as human caused, the legal system in an already litigious society will play an even more prominent role in postdisaster damage awards.”). 45  Id. at 1515–16 (advocating study of alternative dispute resolution mechanisms for disasters that might help alleviate some of the “corrosive community” effect).

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Increasing Harmonization of Environmental and Disaster Law

In addition to the basic causal distinction between manmade and “natural” disasters, another traditional distinction between the two categories is their divergent effects on the built and natural environments. We are trained to think about natural disasters “primarily [as] destroy[ing] the ‘built’ and ‘modified’ environments,” and, concomitantly, disrupting human social systems.46 In contrast, manmade or technological disasters “often leave the ‘built’ and ‘modified’ environments intact, but severely, and oftentimes permanently, contaminate the ‘biophysical environment.’ ”47 Of course, this distinction is far from absolute: natural disasters such as naturally occurring pandemics or heat waves can wreak havoc on human systems while leaving the built environment entirely unscathed and hurricanes can lead to serious coastal erosion, while some technological disasters like the 1976 Teton Dam failure48 and the West Fertilizer plant explosion in Texas in 201349 may inflict significant damage on the built environment. Interestingly, those manmade disasters that fall under the ambit of the U.S. Stafford Act, which addresses primarily natural disasters, are those (“fire, flood, or explosion” “regardless of cause”)50 that are likely to cause significant damage to the built environment and thus require response and recovery measures similar to those required for natural disasters. Conversely, the push to recognize so called “natech disasters”—naturally triggered disasters that result in serious contamination issues—attempts to draw attention to the serious environmental and long-term health consequences of some natural disasters.51 46  J. Steven Picou, Katrina as a Natech Disaster: Toxic Contamination and Long-Term Risks for Residents of New Orleans, 3 J. Applied Soc. Sci. 39, 40 (2009). 47  Id. at 41. 48  U.S. Dept. of the Interior, Failure of the Teton Dam: A Report of the Findings 42, 48 (1977), https://archive.org/details/failureoftetonda00teto (recounting how the flooding left some 25,000 people homeless, destroyed or damaged thirty-two miles of railroad, and caused hundreds of millions of dollars of property damage). 49  Reuters, Partial Settlement Reached in Deadly Texas Fertilizer Plant Explosion, Oct. 12, 2015, http://news.yahoo.com/partial-settlement-reached-deadly-texas-fertilizer-plantexplosion-144200225.html (noting that the fertilizer plant explosion “tore apart a section of the city, killed 15 people, including 12 firefighters, and caused an estimated $100 million in damages” when the resulting “fire and explosion gutted a 50-unit apartment complex, demolished about 50 houses and battered a nursing home and several schools”). 50  Robert T. Stafford Disaster Relief & Emergency Assistance Act, 42 U.S.C. § 5122(2) (2006). 51  Picou, supra note 46, at 41–42; see also id. at 52 (arguing that reframing Katrina as a natech disaster would help focus attention on the “long-term risks” of the toxic contamination Katrina caused).

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Yet this traditional assumption that natural disasters primarily damage built infrastructure and manmade disasters primarily damage green infrastructure is unsurprising given that a great many—if not most—technological (manmade) disasters have been environmental disasters. Environmental law has traditionally had little concern for the built environment beyond the distinct area of cultural heritage; it has focused instead on protecting the natural environment and on human health and safety and viewed the built environment largely as a competitor of the natural environment. Disaster law, in turn, has often undervalued the natural environment, particularly in the response phase, when environmental impacts of disasters have been largely ignored. The amount of oil spilled during the Hurricane Katrina disaster, for instance, rivaled that of the Exxon Valdez spill, and yet few people speak of Katrina in the same breath as other major spills.52 A holistic treatment of natural and manmade disasters might encourage policymakers confronting environmental disasters and risks to consider more fully impacts on the built environment (which are largely responsible for skyrocketing disaster costs in developed countries) and encourage policymakers confronting so-called natural disasters to account more fully for and grapple with environmental risks and damage. The social-ecological resilience framework now very much in vogue has some promise in this regard, though the challenges of expanding and adapting ecological notions of resilience to the concrete challenges faced by cities and communities are myriad.53 5

Rising Acceptance of Drastic Solutions to Disaster Risk

A shift toward emphasizing the manmade contribution to natural disasters might also have interesting, if unpredictable, consequences for public sentiment about the propriety of drastic potential responses to climate change, such as geoengineering, that attempt to remedy the manmade crisis by asserting even greater “control” over the natural environment. The history of disaster management is littered with discarded proposals for human intervention in meteorological events, from schemes to slow hurricane momentum 52  See Justin Pidot, Oil and Gas and Floods, 48 U. Rich. L. Rev. 959, 960 (2014); see also Perrow, supra note 5, at 24 (detailing the extent of oil and other hazardous spills during Katrina). 53  See, e.g., Anne Siders, Resilient Incoherence: Common Language for Climate Change Adaptation, Disaster Risk Reduction and Sustainable Development (discussing the many conflicting meanings of resilience in various disciplines involved in disaster risk reduction).

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by “saturat[ing] ocean waters with oil” to plans to break up incipient storms by detonating atomic bombs in their midst.54 At base, these schemes have assumed that humans have the ability to control and subjugate nature to eliminate natural hazard risk. A narrative of human responsibility for disasters—one that actively counters the traditional assumption that natural disasters are inevitable and outside human control—might suggest not only the feasibility, but the desirability of humans exerting new, more drastic forms of control over nature in order to mitigate new, more drastic kinds of risks created (or at least exacerbated) by humans themselves. Acceptance of these highly engineered solutions may reflect and perpetuate illusions of human control over the environment. On a more mundane level, this mindset that humans can, and should, control natural risk might likewise exacerbate existing tendencies to prefer adaptation techniques like hard armoring over more natural soft armoring or retreat and amplify existing hubris about our ability to engineer our way out of risk.55 As Charles Perrow has explained, “Societies put their people in harm’s way. Modern societies do so with an especial vengeance because their technology and resources encourage risk.”56 The allocation of human responsibility for climate disasters may likewise influence not just the kind of techniques we use to counter climate risks but views about who decides what techniques should be used. If—at the international scale—the narrative of human responsibility allocates substantial responsibility to a relatively limited set of actors, that assignment of responsibility—financial and otherwise—may suggest to responsible parties that they are entitled to mitigate their liabilities by unilaterally engaging in geoengineering to attempt to limit climate harm. This possibility is heightened by the fact that some countries that are becoming major greenhouse gas contributors, such as China, appear to be more accustomed to and accepting of large-scale manipulation of environmental conditions to address environmental problems.57 54  Rozario, supra note 3, at 163; see also Marsha L. Baum, When Nature Strikes: Weather Disasters and the Law 32 (2007) (describing U.S. government attempts to “reduce the power of hurricanes by undertaking cloud seeding”). 55  Cf. Mileti, supra note 7, at 2 (“One central problem is that many of the accepted methods for coping with hazards have been based on the idea that people can use technology to control nature to make themselves safe.”). 56  Perrow, supra note 5, at 14. 57  See, e.g., Samantha Young, Governments Turn to Cloud Seeding to Fight Drought, U.S. News, Dec. 11, 2009, http://www.usnews.com/science/articles/2009/12/11/governmentsturn-to-cloud-seeding-to-fight-drought (noting that “China spends an estimated $100

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Continued Blurring of Disasters with Terrorism and War

Blurring the traditional lines between natural and technological disasters by recognizing that they exist along a continuum of human contribution might also open the door to grouping natural disasters, not just with technological disasters like toxic releases and industrial accidents, but with intentional manmade crises such as terrorism and war. This blurring of the boundaries between disasters, terrorism, and war might prove problematic for a number of reasons. First, U.S. natural disaster policy is already rife with the rhetoric of war and national security,58 and any reclassification that exacerbates that association is likely to further skew disaster policy in undesirable ways. Framing disasters as akin to terrorism and war may encourage a misguided hunt for “enemies,” breed secrecy,59 and encourage a never-retreat mentality.60 Second, classifying all disasters as manmade may encourage further consolidation of disaster and terrorism policies under the same administrative umbrella. If the same agencies are charged with preventing and responding to both disasters and terrorism, resources may flow disproportionately to terrorism, as terrorisms risks are particularly high-profile and salient to both individuals and policymakers. A similar consolidation in the United States after 9/11 appears to have contributed to the organizational dysfunction and disarray that characterized the slow and ineffective response to Hurricane Katrina. 7 Conclusion It should hardly be surprising that the existing taxonomies of disaster matter and, accordingly, that blurring or eliminating the traditional distinction between manmade and natural disasters might have far-reaching ­consequences million a year on cloud-seeding efforts” to combat drought and that U.S. expenditures are “tiny” by comparison); Rongxing Guo, Understanding the Chinese Economies 176–80 (2013) (noting that China is the world’s largest cloud seeder); see also Jonathan Watts, China’s Environment in 2020, in China 2020: The Next Decade for the People’s Republic of China 113, 126 (Kerry Brown ed., 2010) (arguing that there is “a long-established tendency among Chinese officials to rely on science, technology and hardware to try to engineer a solution to the nation’s environmental problems”). 58  See Lisa Grow Sun & RonNell Andersen Jones, Disaggregating Disasters, 60 U.C.L.A. L. Rev. 884, 914–21 (2013). 59  See id. at 887. 60  Justin Pidot, Deconstructing Disaster, 2013 B.Y.U. L. Rev. 213, 221 (“If natural disaster represents attack, failure to rebuild represents capitulation and retreat”).

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for disaster policy. “[A]s the sociologist Kai Erikson reminds us, the[] meanings [of catastrophe] are not as innocent as they may seem. On the contrary, definitions serve specific political agendas.”61 The narratives that grow up around the evolving understanding of the human role in disasters may likewise shape our investments in disaster mitigation, our conception of who should pay for those investments—as well as for any residual harm, the way that disaster law interacts with other legal frameworks such as environmental law, and the way that communities and nations confront the growing risk of disaster and deal with the disasters that nonetheless come. This chapter’s exploration of these potential consequences seeks to begin the conversation about where this profound shift in the conception of disasters may ultimately lead and the urgent need for critical evaluation of the divergent narratives that may emerge to give meaning to the truism that no disaster is truly natural. 61  Rozario, supra note 3, at 12.

CHAPTER 3

Disaster Law in the Anthropocene Daniel Farber 1 Introduction Natural disasters have loomed large in recent years. In the last two decades, disasters have affected over four billion people, killing over a million of them and costing two trillion dollars.1 And the future probably holds worse in store. A 2014 report by the International Federation of Red Cross and Red Crescent Societies (IFRC) and United Nations Development Programme (UNDP) highlights the increasing importance of this topic and its link with climate change, which will “load the dice even more against the poor . . . bringing disasters to new places and making them more severe.”2 International law has attempted to address disaster issues, but has focused primarily on post-disaster response, unlike the broader portfolio of risk management addressed by domestic disaster law.3 Moreover, the international disaster law has been quite separate from international environmental law. But this distinction has begun to unravel in the era of climate change. Disasters and their growing connection with climate change exemplify a fundamental transformation of the human relationship with the world. It remains to be seen whether the Anthropocene—the Age of Humans—will be recognized as a official geological era like the Jurassic or whether it will remain unofficial, like the term “Bronze Age.” But there is a case to be made for formal

1  United Nations Development Programme & International Federation of Red Cross and Red Crescent Societies, Effective Law and Regulation for Disaster Risk Reduction: A Multi-Country Report (2014), available at http://www.undp.org/content/undp/en/home/librarypage/crisisprevention-and-recovery/effective-law---regulation-for-disaster-risk-reduction.html. 2  Id. at ii. 3  Disaster law’s goals are “to increase the preparedness of all social institutions, including official and nongovernmental actors, to anticipate sudden, calamitous events, and to bring the optimal portfolio of legal rules to bear when such events occur” Jim Chen, Modern Disaster Theory: Evaluating Disaster Law As A Portfolio of Legal Rules, 25 Emory Int’l L. Rev. 1121, 1123– 24 (2011). Note the reference to “sudden, calamitous events”; this temporal element is one traditional aspect of the way disasters are defined, as discussed in the text.

© Peel and Fisher (eds), ���6 | doi ��.��63/9789004318816_004

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recognition.4 Whether or not geologists choose to make a formal designation to this effect, it is clear that humans have made an imprint on the planet that will survive into the geological record. “Nature,” in the sense of the world as it would be without human influence, is increasingly a counter-factual concept. Climate change is a key example of this new era, but not the only one. Humans have become dominant forces in other ways as well that are relevant to disasters. For instance, “[t]hrough mining activities alone, humans move more sediment than all the world’s rivers combined”,5 thereby modifying water flows and creating potential for landslides. Geologists estimate that humans have modified over half the earth’s land surface.6 Humans have also dramatically impacted the biological world. According to a recent scientific review, “[i]n the past 500 years, humans have triggered a wave of extinction, threat, and local population declines that may be comparable in both rate and magnitude with the five previous periods of mass extinctions of Earth’s history.”7 Many ecologists believe there is no relevant analogy to the current situation, so the world is heading into unexplored ecological territory.8 Thus, it is not only human disasters, but also ecological ones, that are now traceable to human activities. In short, for better or for worse, we can no longer disclaim responsibility for the world as a whole. The story told by this chapter—about the increasingly close connection of international disaster law with international environmental law—is likely to be seen as only one instance of this larger trend. In the Anthropocene, even the weather has become a human responsibility.

4  See Nicholas A. Robinson, Keynote: Sustaining Society in the Anthropocene Epoch, 41 Denv. J. Int’l L. & Pol’y 467, 487–88 (2013). 5  Richard Monastersky, Anthropocene: The Human Era, 519 Nature 144 (2015). See Anthropocene: A Man-Made World, The Economist (May 26, 2011), available at http:// www.economist.com/node/18744401. It seems clear that we have made our mark on our planet, for better or for worse. 6  Roger Hooke et al., Land Transformations by Humans: A Review, 22 GSA Today, doi: 10.1130/ GSAT151A.1. 7  Rodolfo Dirzo et al., Defaunation in the Anthropocene, 345 Science 401, 401 (2014). As another report puts it, “biodiversity loss, however it is measured, is showing little signs of abatement.” Ben Collen & Emily Nicholson, Taking the Measure of Change: Predictive Models of Biodiversity Change Are Required to Inform Conservation Policy Decisions, 346 Science 166, 166 (2014). 8  For discussion of the implications in the context of U.S. law, see J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future, 88 B.U. L. Rev. 1, 11 (2008).

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Natural Disasters and the International Regime

To understand how climate change is affecting our concept of natural disasters and the legal regime for dealing with them, we need first to examine the baseline, the world of international disaster law as it evolved independently. We will begin with a seemingly trivial but actually rather knotty issue: how to define the term “disaster.” We will then examine the efforts of the international community to deal with disasters that are beyond the capacity of the impacted countries to handle. 2.1 Defining Disaster The common conception of natural disasters focuses on events that are sudden, significant, and natural.9 But “disaster” is in practice a malleable term.10 The suddenness criterion emphasizes the emergency period, but an important consideration in defining the field is whether prevention and development of resilience before the event, and compensation and rebuilding after the event, are to be included. Moreover, the term is sometimes used to refer to more slowly developing but severe harms. The second factor, significance, is to some extent in the eye of the beholder. With respect to the third factor of naturalness, it has been argued that there is actually “no such thing as a natural disaster.”11 “Naturalness” thus turns out to be somewhat complex— a complexity that is central to the subject of this chapter. Physical “phenomena are a necessary component of risk, but they are only the starting point in addressing safety concerns”—to be fully effective, the work of calculating and planning for disaster risk must account for “acts of nature, . . . weaknesses of

9  Scholars disagree about the desirability of distinguishing between natural, technological, and deliberate disaster events. See National Research Council, Facing Hazards and Disasters: Understanding Human Dimensions 75 (2006). 10  This malleability has practical as well as theoretical significance in disputes over the allocation of federal resources. Michele L. Dauber, “Let Me Be Next Time ‘Tried By Fire’ ”: Disaster Relief and the Origins of the American Welfare State, 92 Nw. U. L. Rev. 967, 971 (1998). 11  Neil Smith, There’s No Such Thing as a Natural Disaster (June 11, 2006), available at http:// understandingkatrina.ssrc.org/Smith. (“It is generally accepted among environmental geographers that there is no such thing as a natural disaster. In every phase and aspect of a disaster—causes, vulnerability, preparedness, results and response, and reconstruction—the contours of disaster and the difference between who lives and who dies is to a greater or lesser extent a social calculus.”)

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human nature, and . . . side effects of technology.”12 And as we will see, in the Anthropocene, even the idea of “acts of nature” becomes more complex. There is a significant and varied literature attempting to define disasters.13 A National Research Council report defines disasters as non-routine physical events that connect with “social definitions of human harm and social disruption,” a rather vague formulation.14 Alternatively, the report speaks of disasters as unexpected “acute events” with a high threshold of physical and social impact.15 Professor Stephen Sugarman offers a more concrete formulation. He defines as major disasters events that involve “relatively large aggregate losses that are (a) comprised, at least in part, of harms that are catastrophic to many individuals and (b) . . . often sufficiently grave to overtax the capacity of even moderate size or larger communities to deal with the consequences.”16 In the United States, the Stafford Act defines a major disaster to be any “natural catastrophe” or “regardless of cause, any fire, flood or explosion,” which the President considers severe enough to warrant disaster assistance.17 At the international level, the Hyogo Framework did not explicitly define the term “disaster”, but observes that disaster risk “arises when hazards interact with physical, social, economic and environmental vulnerabilities,” with water and weather causing the “large majority” of disasters.18 The Framework also stated 12  Farber, Chen, Verchick, and Sun, Disaster Law and Policy 3 (2d. ed. 2009); Daniel A. Farber et al., Reinventing Flood Control, 81 Tul. L. Rev. 1085, 1090 (2006). 13  National Research Council, supra note 10, at 15. 14  Id. at 13, 16. 15  Id. at 18–19. 16   Stephen D. Sugarman, Roles of Government in Compensating Disaster Victims, in Issues in Legal Scholarship 5 (2007), available at http://www.degruyter.com/view/j/ ils.2007.6.issue-3/ils.2007.6.3.1093/ils.2007.6.3.1093.xml?rskey=XcY5SX&result=3. 17  42 U.S.C. § 5122(2). In turn, “natural catastrophe” includes “any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought.” Id. The National Response Framework does not distinguish on the basis of an incident’s cause. Federal Emergency Management Agency, National Response Framework, Catastrophic Incident Annex (2008). 18  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 Reduction 1. The U.N. Office for Disaster Risk Reduction defines disasters broadly to include “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.” http://www.unisdr.org/ we/inform/terminology. That definition sweeps broadly—for instance, it could include a war or an economic depression. For some purposes, the broader definition may be appropriate—for instance, post-conflict assistance to a war-torn country might have some

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that it “encompasses disasters caused by hazards of natural origin and related environmental and technological hazards and risks,” language that is largely repeated in its successor, the Sendai Framework.19 Meanwhile, the IFRC, with the endorsement of the state parties to the Geneva Conventions in 2007, has defined a disaster as “a serious disruption of the functioning of society, which poses a significant, widespread threat to human life, health, property or the environment, whether arising from accident, nature or human activity, whether developing suddenly or as the result of long-term processes, but excluding armed conflict.”20 It is commonplace to use the term “natural disaster,” but it seems almost equally commonplace in the field to question whether the distinction between natural disasters and other catastrophic events is viable. Clearly, human activities often interact with natural events in ways that are hard to disentangle21 and some question the utility of distinguishing between natural and manmade.22 The IFRC and UNDP have also recognized that “the term ‘natural disaster’ is not entirely accurate, since the conditions that lead to the catastrophic impacts of a natural hazard are linked to the prevailing socio-economic conditions that are not natural, but rather, determined by human actions and decisions.”23 As the IFRC and UNDP observe, “it is well accepted that the actions and decisions of individuals, communities and nations make a significant difference as to whether a natural hazard turns into a disaster.”24 Still, this observation does take for granted that some hazards are “natural,” even though their ultimate impact on society may be mediated by social factors. Although it is frequently criticized, the distinction between natural hazard and human-originated hazards does have some significance. In the case of a natural hazard, human responsibility for any resulting harm can only stem from the failure to guard against harm, a failure to act. Human-originated

commonalities with post-disaster assistance after a catastrophic natural event. Obviously, however, the pre-event risk reduction methods would be require different. 19  Id. at n. 3; Sendai Declaration n. 4 (2015), available at http://www.unisdr.org/files/ resolutions/N1516716.pdf. 20  International Federation of Red Cross and Red Crescent Societies, Introduction to the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance 14 (2011), available at http://www.ifrc.org/ PageFiles/125652/1205600-IDRL%20Guidelines-EN-LR%20(2).pdf. 21  Sugarman, supra note 18, at 5. 22  Id. 23  IFRC & UNDP [2014 Report], supra note 2, at xv. 24  Id. at 2.

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hazards, in contrast, stem from affirmative human actions. In addition to the possible moral difference between causing harm and merely permitting it to happen, there may also be an institutional difference: preventing environmental harms primarily involves prohibiting or at least discouraging harmful behavior, whereas dealing with natural disasters tends to require more in the way of affirmative programs. In addition, in terms of rebuilding, hazards caused by identifiable human agents are likely to have legal or at least moral claims for compensation that are not present in other types of disasters. Thus, at least in some context, the human origin of a hazard may have policy relevance. Of course, it remains true that human failures can sometimes make all the difference between a hazard that causes disastrous results and one that is managed appropriately, regardless of the origin of the hazard. But the origin of the hazard may also be relevant. The origin of the hazard historically has also been the key to determining what area of law is applicable. When the origin of the physical hazard is a human activity, environmental law is the dominant legal field. In contrast, although definitions of disaster may also encompass some human-originated hazards, natural hazards are solely the domain of disaster law. The next section discusses how disaster law attempts to deal with those and other hazards. 2.2 Disaster Law at the International Level To understand international disaster law, it is helpful to grasp the full range of disaster-related interventions. What most characterizes disaster law is the “circle of risk management”: a set of strategies including “mitigation, emergency response, compensation, and rebuilding,” with rebuilding completing the circle by including or failing to include mitigation measures.25 (See Figure 1 below.) As we will see, the international regime has been most effective in terms of the right-hand side of the cycle, but has been weaker in terms of risk mitigation, perhaps because that is the phase with the least public visibility. International disaster relief has a long history, dating back at least to the great earthquake that destroyed Lisbon in 1755.26 Three years later, Vattel recognized a duty to provide humanitarian aid as part of international law.27 It 25  Id. at 3. Much of the cycle is implicit in the National Research Council’s description of disasters as embedded in circular “social time,” but is not articulated explicitly there. National Research Council, supra note 10, at 23–26. 26  Alejandra de Urioste, When Will Help Be on the Way? The Status of International Disaster Response Law, 15 Tul. J. Int’l & Compl. L. 18, 183 (2006). 27  David P. Fidler, Disaster Relief and Governance After the Indian Ocean Tsunami: What Role for International Law?, 16 Melb. J. Int’l L. 458 (2005).

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The Circle of Disaster Risk Management

was only in the early Twentieth Century, however, that nations have formed international organizations to address disasters. By 1921, the Red Cross recommended an international convention on disasters, leading to the creation of an International Relief Union [IRU]—which unfortunately did not survive World War II.28 The aftermath of the war saw the creation of the UN Disaster Relief Coordinator, later subsumed into the Office for the Coordination of Humanitarian Affairs.29 Apart from these efforts to address disaster issues at the global level, there are also regional conventions, bilateral treaties, soft law instruments of various kinds, and some important specialized multilateral agreements dealing with specific areas such as telecommunications and aviation after natural disasters.30 Continuing efforts at providing greater coherence include the Sphere Project and projects by the IFRC and others.31 Despite these international efforts, an IFRC publication still speaks of a “yawning gap” in international law regarding disaster response.32 Indeed, the introduction to a law review symposium on international disaster law was 28  Id. at 463; Uriose, supra note 28, at 184. 29  Uriose, supra note 28, at 186. 30  Fidler, supra note 29, at 464; Uriose, supra note 28, at 188–190; Int’l Fed’n of Red Cross & Red Crescent Soc’ys, Law and Legal Issues in International Disaster Response: A Desk Study (2007). 31  Uriose, supra note 28, at 192. For a history of the Sphere Project, see Margaret L. Satterthwaite, Indicators in Crisis: Rights-Based Humanitarian Indicators in Post-Earthquake Haiti, 43 N.Y.U. J. Int’l L. & Pol. 865, 889–896 (2011). Other soft law principles include the IFDRC’s “Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery” (2007), assistancehttp://ifrc.org/en/what-we-do/disasterlaw/about-disaster-law/international-disaster-response-laws-rules-and-principles/ idrl-guidelines/. 32  Uriose, supra note 28, at 186.

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somewhat chagrined to observe that no such coherent body of law exists, while others are more optimistic about the development of the field but also see gaps and inconsistencies.33 This lack of coherence has practical consequences. Some of the resulting practical problems can be seen in the massive international response to the 2004 Southeast Asian Tsunami, which involved more than two hundred NGOs and a dozen governments. The tsunami was almost beyond imagination, involving energy equivalent to twenty-three thousand Hiroshima bombs, killing at least 150,000 people immediately, and leaving millions homeless.34 In the resulting confusion, communication was poor, efforts were duplicated, and lack of shared expertise led to failures in assistance.35 As a result, despite the best of intentions, a massive influx of resources did not produce a corresponding degree of actual assistance. Similar problems surfaced in the response to the 2010 Haitian earthquake.36 A study by Tulane and the State University of Haiti evaluated the earthquake response and concluded that the humanitarian response met immediate needs but undermined long-term resilience.37 According to the study, “the humanitarian response frequently undermined the capacity of Haitian individuals and organizations” as “[k]ey organizations were hindered by poaching of staff and their inability to compete with larger, international NGOs for support and 33  See Jenny R. Hernandez & Anne D. Johnson, A Call to Respond: The International Community’s Obligation to Mitigate the Impact of Natural Disasters, 25 Emory Int’l L. Rev. 1087, 1092 (2011) (lack of coherent scheme); Andrea de Guttry, Surveying the Law, in Andrea de Guttry, Marco Gestri, and Gabriella Venturini, International Disaster Response Law 40 (2012)(a comparison of “regional and subregional treaties reveals significant overlapping and inconsistencies,” and there is “frequent contradiction of valid regional or subregional agreements and bilateral treaties”). 34  See National Geographic News, The Deadliest Tsunami in History? (2005), http://news. nationalgeographic.com/news/2004/12/1227_041226_tsunami.html. Other sources indicate a higher death count over 200,000. http://www.newscientist.com/article/dn9931facts-and-figures-asian-tsunami-disaster.html#.VRdVBJPF828. 35  Uriose, supra note 28, at 194–195. 36  The impact of the quake on the already impoverished country posed special problems. Paul E. Weisenfeld, Successes and Challenges of the Haiti Earthquake Response: The Experience of USAID, 25 Emory Int’l L. Rev. 1097, 1099–100 (2011). Clearly, the disaster relief effort faced enormous challenges. 37  Tulane University and the State University of Haiti, Haiti Humanitarian Assistance Evaluation from a Resilience Perspective (May 2012), available at http://www.drlatulane .org/groups/haiti-humanitarian-aid-evaluation/final-report/english-documents/ UEH%20Tulane%20DRLA%20Haiti%20Humanitarian%20Aid%20Evaluation%20 ENGLISH%20May%202012.pdf/view.

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access to the decision making process.”38 News reports also document difficulties in coordination, particularly with smaller agencies, sometimes resulting in duplicative efforts or gaps in coverage.39 A few international mechanisms are beginning to emerge to a limited extent to provide financial assistance countries hit by natural disasters. The International Monetary Fund can make special funding available to countries if a disaster disrupts their balance of payments.40 The IMF has “provided resources in cases of earthquakes, drought, hurricanes, floods, and cyclones.”41 The World Bank has also been involved in disaster funding. Examples are provided by the creation of “special purpose funds” by the Bank for reconstruction efforts in Indonesia after the Southeast Asian Tsunami and Haiti.42 On top of this, of course, there are also offers of financial assistance from donor countries in the aftermath of disasters, provided for strategic or humanitarian reasons via a coordinated appeals by the IFRC or the UN. Still, at least some observers believe that, “[a]t the dawn of the 21st century, a cohesive approach to international disaster law is not much farther along than it was at the start of the 20th.”43 Indeed, the prospects for a unified international regime may have been more promising before World War I than they are today. There is also a gap on the intellectual side, with the American Society of International Law referring to the “embryonic state” of international and comparative law scholarship on disasters.44 Clearly, much more work remains to be 38  Id. at 43. Notably, there were coordination problems even between agencies within the U.S. government. Weisenfeld, supra note 38, at 1105. Coordination with private entities and non-U.S. entities presumably involved even greater difficulties. For a fuller discussion of issues in the Haitian relief effort, see IFTC, IDRL in Haiti (undated) (also citing lack of quality control of relief efforts and customs). 39  See Ezra Fieser & Sarah Llana, Haiti Earthquake Anniversary: The State of Global Disaster Relief, Christian Science Monitor (January 11, 2011), available at http://www.csmonitor .com/World/Global-Issues/2011/0111/Haiti-earthquake-anniversary-the-state-of-globaldisaster-relief. The authors also report an increase in attention to pre-disaster planning. Id. 40  Joseph Gold, Natural Disasters and Other Emergencies Beyond Control: Assistance by the IMF, 24 Int’l L. 621 (1990). 41  Id. at 633. 42  Jenny R. Hernandez & Anne D. Johnson, A Call to Respond: the International Community’s Obligation to Mitigate the Impact of Natural Disasters, 25 Emory Int’l L. Rev. 1087, 1093 (2011). 43  International Federal of Red Cross and Red Crescent Societies, World Disasters Report 2000, 157 (2007). 44  http://www.asil.org/community/disaster-law.

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done if we are to have a system for dealing with major disasters that measures up to the world’s needs. It is clear that disaster law has lagged well behind environmental law in its development. As we will see in Part III, however, the effort to deal with climate change is beginning to connect the two areas. In the process, it promises to strengthen the international regime dealing with disasters. 3

The Climate/Disaster Connection

Fifty years ago, apart from a few scientists, most people would have regarded it as obvious that heat waves, droughts, floods and other extreme weather events were products of nature alone. But climate change has already been found responsible for some extreme weather events, and climate law is beginning to address this emerging problem. Given the relative weakness of international disaster law has it has developed, we can only hope that it receives an infusion of strength from climate law. 3.1 Climate Change and Extreme Events The evidence that carbon emissions from human activities cause climate change is now too overwhelming to require discussion. Not only do we expect further climate change, but also the effect of our carbon emissions has already been felt. According to the most recent report45 by the Intergovernmental Panel on Climate Change (IPCC),46 “each of the last three decades has been successively warmer at the Earth’s surface than any preceding decade since 1850,” and the Northern Hemisphere has just completed the warmest three-decade period since 700 AD, shortly after the fall of the Roman Empire.47 With rare exceptions, individual recent years rank at the top of the list of the w ­ armest global temperatures.48 Thus, we keep breaking records, and there is every rea45  Note: in-line citations in the report will be deleted in quotations throughout this chapter without notation to that effect. 46  The IPCC is a United Nations body with 195 member nations, whose mission is to improve scientific understanding of climate change. See IPCC, Organization, available at http:// ipcc.ch/organization/organization.shtml. 47  Intergovernmental Panel on Climate Change, Summary for Policymakers, in Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 5 (2013). The Fifth Assessment Report is commonly referred to as AR5. 48  David Archer and Stefan Rahmstorf, The Climate Crisis: An Introductory Guide to Climate Change 43 (2010).

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son to think we will continue to do so: depending on future emissions and climate sensitivity, the world will probably end up two to seven degrees Celsius warmer (between around four to twelve degrees Fahrenheit).49 Temperature change in the Arctic will be about twice as large—from seven up to as much as twenty-five degrees Fahrenheit warmer in scenarios with high climate sensitivity and high emissions.50 Average global warming of two degrees Celsius, which now seems virtually inevitable, would leave the earth warmer than it has been in millions of years.51 Climate change is already having an impact on the world’s oceans as well as land. In the past twenty years, “the Greenland and Antarctic ice sheets have been losing mass, glaciers have continued to shrink almost worldwide, and Arctic sea ice and Northern Hemisphere spring snow cover have continued to decrease in extent.”52 Not surprisingly, “[t[he rate of sea level rise since the mid-19th century has been larger than the mean rate during the previous two millennia.”53 Thus, we are already in the midst of sea level rise, and we can expect much more to come. The most dramatic effects of climate change involve extreme events rather than averages.54 Consider the worst weather disaster to strike the developed world in this century.55 Americans may instantly think of Hurricane Katrina but, measured in terms of loss of life, Katrina was far less serious than a catastrophe that quietly struck Europe in 2003, leaving tens of thousands of dead behind. The summer of 2003 was the hottest in at least five hundred years,56 49  Id. at 129. 50  Id. at 133. 51  Id. at 225. 52  Id. at 9. 53  Id. at 11. For a discussion of climate models, their validation, and modeling uncertainties, see Daniel A. Farber, Modeling Climate Change and Its Impacts: Law, Policy, and Science, 86 Tex. L. Rev. 1655 (2008). 54  In general, models incorporating the effects of greenhouse gases account well for changes in extremes. See Sonia Senevaratne & Neville Nicholls, Changes in Climate Extremes and their Impacts on the Natural Physical Environment, in IPCC, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation 126 (SREX) (2012). 55  Disasters in the developing world have sometimes caused hundreds of thousands of deaths, dwarfing those in the developed world. See Jason K. Levy & Chennat Gopalkrishnan, A Policy-Focused Approach to Natural Hazards and Disasters—Toward Disaster Risk Reduction (DRR), 2 J. Nat. Res. Pol’cy Res. 317, 317 (2010). 56  Janet Larsen, Setting the Record Straight: More than 52,000 Europeans Died from Heat in Summer 2003, Earth Policy Institute, July 28, 2006, available at http://www.earth-policy .org/index.php?/plan_b_updates/2006/update56.

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or as the New York Times put it, “since at least 1540, the year King Henry VIII discarded his fourth wife, Anne of Cleves.”57 A high-pressure area sat over Western Europe, preventing air from the Atlantic from entering.58 Temperatures reached extraordinary heights. The summer in Geneva was similar to the normal summer in Rio de Janeiro.59 Temperatures in parts of Italy were over 15 °F warmer than the preceding year in August; in Portugal, temperatures were over 104 °F for many days, while London had its first recorded temperatures over 100 °F in history.60 The prolonged heat was catastrophic. Estimates of the total number of deaths begin at thirty thousand and run as high as fifty thousand.61 In rough terms, the heat wave’s death toll was equivalent to the 2011 Japanese tsunami, or to ten to fifteen 9/11 incidents, or seventeen to twenty-eight hurricanes like Katrina. In Paris alone, there were over twelve hundred excess deaths.62 The estimate for France as a whole was over fourteen thousand.63 The biggest risk factors were “being a woman 75 years old and older and living alone at home.”64 In addition to its health impacts, the heat wave also impacted agriculture and caused numerous forest fires, destroying over 640,000 hectares of forest (roughly 2500 square miles, an area about the size of Delaware).65 The heat wave was extreme compared to historical temperatures, but less abnormal compared to recent decades because of the upward trend in European weather.66 Although it is impossible to say for sure whether climate change “caused” this particular heat wave, it is possible to ask whether climate 57  David Jolly, Heat Waves in Europe Will Increase, Study Finds, NY Times (Dec. 8, 2014), available at http://www.nytimes.com/2014/12/09/world/europe/global-warming-to-makeeuropean-heat-waves-commonplace-by-2040s-study-finds.html. The study also suggested that European heat waves will become commonplace by mid-century and that climate change has already increased the likelihood of a heat wave like 2003 by a factor of eight. Id. 58  United Nations Environment Programme (UNEP), Impacts of Summer 2003 Heat Wave in Europe, 29 Environment Alert Bulletin (June–Sept. 2003). 59  Id. 60  Larsen, supra note 58. 61  Id. The World Bank gives 35,000 deaths as the lower bound. World Bank [UnNatural Disasters], supra note 75, at 219 n. 8. 62  Emamanuelle Cadot, Victor G. . Rodwin, & Alfred Spira, Lessons from the Heat Waves in Paris, J. Urban Health, doi:10.1007/s11524-007-9161-y (2007). 63  Cadot, Rodwin, & Spira, supra note 64. 64  Id. 65  UNEP, supra note 60. 66  Martin Rebetez, Heat and Drought 2003 in Europe: A Climate Synthesis, 63 Ann. Forest Sci. 63 (2006).

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change increased the likelihood of such a heat wave. Scientists have concluded that “past human influence has more than doubled the risk of European mean summer temperatures as hot as 2003” and that “the likelihood of such events [is] projected to increase 100-fold over the next four decades.”67 Another historic heat wave hit Russia in 2010. As we will see later, this heat wave was probably intensified by climate change as well. The heat wave was well outside historic norms, a “one in 1000 year” event.68 The initial estimate of the death toll was fifteen thousand,69 but the World Meteorological Organization estimates the total number as over fifty-five thousand.70 In addition, there was massive damage to crops and forests.71 Climate change will amplify disaster risks, putting even more stress on disaster response systems.72 The list of potential disasters is a long one, including “heat waves, droughts, crop failures, wildfires, and outbreaks of illness.”73 Besides the direct threat to human life and property, impacts on agriculture could be severe due to “[i]ncreased pests, water stress, diseases, and weather extremes.”74 The most recent IPCC report on adaptation identifies a number of additional risks as having been established with high confidence. The list of risks includes deaths from flooding in low-lying coastal zones and small islands, extreme weather events causing disruption of critical infrastructure and services, deaths from heat waves, and breakdown in food systems due to

67  Peter A. Stott, D.A. Stone, & M.R. Allen, Human Contribution to the European Heatwave of 2003, 452 Nature 610 (2004). 68  Australian Meteorological and Oceanographic Society, The Great Russian Heatwave of 2010 33 (Aug. 10, 2010), available at http://www.amos.org.au/news/id/83. 69  Id. 70  World Meteorological Organization (WMO), The Global Climate 2001–2010: A Decade of Climate Extremes 33, available at http://library.wmo.int/pmb_ged/wmo_1103_en.pdf. 71  Id. at 34. 72  Id. at 71–73. 73  Robert R.M. Verchick, Adapting to Climate Change While Planning for Disasters: Footholds, Rope Lines, and the Iowa Floods, 2011 BYU L. Rev. 2203, 2207 n. 2 (2011). Droughts are the most deadly disasters. See World Bank, Natural Hazards/UnNatural Hazards: The Economics of Prevention 11 (2010). But deaths from malnutrition attract little public attention: “for every person who dies in an earthquake, more than 19,000 people must die of food shortage to receive the same expected media coverage, all else equal.” Id. at 23. This is a striking tribute (and a disturbing one) to the human preference for attending to the sudden and dramatic over the slow and insidious. 74  Robert M. Verchick and A. Hall, Adapting to Climate Change While Planning for Disasters: Footholds, Rope Lines, and the Iowa Floods, 2011 BYU L. Rev. 2203, 2207 (2011).

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drought or flooding.75 Indeed, the IPCC reports that “for many kinds of disruption, from crop failure caused by drought to sickness and death from heat waves, the main risks are in the extremes, with changes in average conditions representing a climate with altered timing, intensity, and types of extremes.”76 As the IPCC points out, the effects will be especially grave for groups that are already badly disadvantaged.77 Effects also vary regionally. In Africa, decreases in grain production are likely to threaten food security.78 Impacts on food security are also projected for Asia, and water challenges will be increased by projected population growth.79 If emissions are not abated, the impacts could be much larger. With a 4°C warming, high temperatures and humidity will “compromise normal human activities, including growing food or working outdoors,” threatening food security and causing possibly large increases in fire risk.80 The IPCC also projects large increases in water stress on the one hand and flooding on the other.81 The World Bank calls the 4°C scenario devastating, describing possible outcomes such as flooding coastal cities, unprecedented heat waves, substantially exacerbated water scarcity in many regions, and more intense cyclones.82 Overall, climate change poses serious threats to human security.83 Besides the direct threat to human life and property, impacts on agriculture could be severe due to heat, drought, insect predation, and storm damage.84 Climate change will undermine livelihoods, disrupt cultures, increase migration, increase violent conflict, and undermine the ability of states to protect their populations.85 75  IPCC, Summary for Policymakers, in IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability 13 (2014). 76  IPCC, Technical Summary, in IPCC Climate Change 2014, Impacts, Adaptation, and Vulnerability 53 (2014). 77  Id. at 51. 78  Id. at 75. 79  Id. at 76. 80  Id. at 63. 81  Id. at 63. 82  World Bank, Turn Down the Heat: Why a 4 °C Warmer World Must be Avoided, at v. (2012), available at http://www.worldbank.org/en/topic/climatechange/publication/turn-downthe-heat-climate-extremes-regional-impacts-resilience. Because of the rapid pace of climate change, “[m]any species will be unable to disperse rapidly enough to track the changing climate and remain within their ‘climate envelope’ of temperature and precipitation.” Richard Primack, Essentials of Conservation Biology 208 (5th ed. 2010). 83  For discussion of these issues, see W. Neil Adger & Juan M. Pulhin, Human Security, in IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability 755 (2014). 84  Id. 85  Id. at 758.

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It will contribute to famine and political instability, with a particular impact on socially marginalized populations that have limited assets to draw on.86 Overall, the IPCC says, the risks will be greatest in developing countries and in tropical or subtropical regions.87 Climate change will also amplify threats from existing risks.88 It is also important to note that climate change in one area can have impacts elsewhere.89 One reason is migration; another is that weather can affect global food prices or availability, or interfere with transportation of goods.90 The World Bank estimates that the annual damage from stronger tropical storms could be $28–68 billion a year.91 Damage estimates also depend on time periods. One estimate for 2030 gives $28–67 billion and a 2050 estimate is $70–100 billion.92 But these estimates have serious limitations because they use only a small number of climate scenarios, include only limited adaptation options and sectors, and do not fully take into account extreme events.93 Adaptation to these impending changes poses serious challenges:94 “Extreme events such as floods and drought cause extensive damage to many parts of society, and thus a critical issue for adaptation is the degree to which frequency, intensity, and persistence of extreme events change.”95 For low-lying countries, adaptation could be several percent of GDP.96 The Stern Review ­estimates that the cost of adapting infrastructure could be risk $15–150 billion

86  Id. at 761. 87  Michael Oppenheimer, Maximiliano Campos, and Rachel Warren, Emergent Risks and Key Vulnerabilities, in IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability 1077 (2014). 88  Id. at 1057. 89  Id. at 1062. 90  Id. 91  World Bank, supra note 84, at 20. 92  Muyeye Chambwera & Goeffrey Heal, Economics of Adaptation, in IPCC, Climate Change 2014: Impacts, Adaptation and Vulnerability 959 (2014). 93  Id. at 959–960. 94  These challenges are discussed in Tim Bonyhady, Andrew Macintosh, & Jan Mcdonald, Adaptation to Climate Change: Law and Policy (2010); U.S. Government Accountability Office, Climate Change Adaptation: Strategic Federal Planning Could Help Government Officials Make More Informed Decisions, available at http://www.gao.gov/products/GAO10-113 (2010). 95  W.E. Easterling III, B.H. Hured, & J.B. Smith, Coping with Global Climate Change: The Role of Adaptation in the United States 17 (2004) (available at http://www.c2es.org/publications/ role-adaptation-united-states. 96  IPCC [Summary for Policymakers], supra note 77, at 17.

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per year.97 Thus, a critical issue for adaptation is the degree to which frequency, intensity, and persistence of extreme events change.”98 In assessing the impacts of extreme events, it is important to keep in mind that deaths from disasters occur predominantly in developing countries.99 Low-income countries are home to one-third of global population but experience two-thirds of the fatalities.100 In terms of purely economic losses, the absolute amounts are higher in developed countries where more expensive property is at stake, but “when differences . . . in economic development are removed, India and China then account for 90 percent of total damages.”101 3.2 Identifying Climate Disasters Perhaps the greatest threat to the concept of “natural” disasters is posed by climate change.102 As discussed earlier, we do know that climate change will increase the likelihood of certain kinds of extreme events.103 But there is something of a gap between this statistical observation and the conclusion that we should attribute particular disasters to climate change. In the previous section, such attributions were mentioned for two particularly severe disasters. Making such attributions is actually a complete undertaking, and it is worthwhile to understand how these connections are made and what they mean.

97  Nicholas Stern, The Economics of Climate Change: The Stern Review 417 (2007). 98  W.E. Easterling III, B.H. Hured, & J.B. Smith, supra note 97 at 17. 99  Carolyn Kousky, Informing Climate Adaptation: A Review of the Economic Costs of Natural Disasters, Their Determinants, and Risk Reduction Options (2012), available at http://www .rff.org/Publications/Pages/PublicationDetails.aspx?PublicationID=21945, 15. 100  Id. 101  Id. 16. 102  Incidentally, the IPCC finds “low confidence” in the relationship between past changes in hurricanes and climate change. See Nathaniel Bindoff et al., Detection and Attribution of Climate Change: from Global to Regional, in Climate Change 2013: The Physical Science Basis, Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 813, 871 (2013). Thus, not every disaster in the world is linked to climate change or other product of human activity. 103  It should be kept in mind, however, that any link with other types of extreme events remains unclear. Tropical cyclones (hurricanes) are a leading example. Dennis L. Hartmann et al., Observations: Atmosphere and Surface in IPCC, Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 217 (2013). In terms of the future, predictions are still not firm but seem to suggest increases in intensity but not number. IPCC [SREX], supra note 56, at 162.

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Climate scientists have carefully investigated the possible causal connections between climate change and specific extreme events,104 though it is also fair to characterize this as a developing area of science.105 It is important to note that there are two measures of the contribution of climate.106 As the IPCC explains, the attributable-risk approach asks how climate change has affected the likelihood of an event of that magnitude, whereas the attributable-magnitude approach asks whether climate change made the event more severe.107 For instance, in the case of a heat wave, we might ask how much climate change increased the likelihood that temperatures would remain over 100°F for a week (the attributable-risk approach). We might conclude that such an event would happen only once in every five hundred years without climate change but that we would expect it to happen once every fifty years with climate change. Or we might ask how much climate change increased the temperature of the heat wave (say 4° from 98° to 102°). Both approaches are equally valid scientifically. As to which number is more relevant, the question really turns on how the temperature during the heat wave relates to health effects. If the death rate really jumps when temperature cross the 100°F threshold, then the first question is the most relevant. On the other hand, if mortality is proportional to the temperature increase, then we really want to know how much additional heat was added by climate change. And indeed, researchers have found that past certain thresholds, mortality from heat exposure rises exponentially.108 The threshold effect is also obviously important in flooding, since a flood that is under the height of a levee is completely different from one exceeding that height. The most recent climate change assessment by the IPCC reviews a number of attribution studies. The 2010 Russian heat wave has received particular attention. One study found that the likelihood of such a heat wave has increased by

104  It is easier to establish that climate change is responsible for a general change in the likelihood or magnitude of categories of extreme events. Senevaratne & Nicholls, supra 56, at 112. 105  See Bindoff, supra note 104. For a list of recent studies, see Wolf Cramer & Gary Yohe, Detection and Attribution of Observed Impacts, in IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability 999 (2014). 106  Bindoff, supra note 104, at 914. 107  Id. at 914. 108  See Sharon Harlan et al., Heat-Related Deaths in Hot Cities: Estimates of Human Tolerance to High Temperature Thresholds, 11 Int. J. Env. Res. Pub. Health 3304 (2014) (doi: 10.3390/ ijerph110303304 (Figure 2(a) shows the exponential nature of the increase in an especially clear way.).

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a factor of five due to global warming.109 Another found that the heat wave was unrelated to climate change, while a third study found that global warming increased the magnitude of the resulting heat wave by 1.5°C, but increased the likelihood that the heat wave would be a strong as it was by a factor of three.110 As discussed above, even if there would have been a severe heat wave anyway, the increased temperature might well have a disproportionate impact on mortality. It is exceptional to be able to link a given disaster with climate change, at least at this point in time. Overall, the IPCC concludes that the contribution of climate change to the magnitude of any one event is still likely to be small given the relative small amount of global warming to date.111 On the other hand, the IPCC perceives growing confidence in the ability to estimates of how much climate change contributes to the risk of certain kinds of events.112 The ability to make these estimates seems likely to improve, not only because of scientific progress, but also because increased warming will push the world farther from the baseline of pre-industrial weather patterns. Disaster Issues, Climate Change, and International Environmental Law The conceptual shift from “natural disasters” to “climate disasters” brings into play the field of international environmental law, which is firmly rooted in ideas of human agency and responsibility. To the extent that there was a founding moment for the field, it probably came with the 1941 Trail Smelter decision,113 which established the principle that states are responsible for environmental harm in other states caused by activities on their territory. This principle has become rooted in international law. By 1971, the Stockholm Declaration had proclaimed that “States have . . . the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.”114 Similarly, under section 601 of the Restatement (Third) of Foreign Relations Law, “a state 3.3

109  Bindoff, supra note 104, at 916. 110  Id. 111  Id. 112  Id. at 916–917. 113  Trail Smelter Arbitration (United States v. Canada) Ad Hoc International Arbitral Tribunal, 1941 3 U.N. Rep. Int’l Arb. Awards 1911, 1938 (1941). 114  Stockholm Declaration on the Human Environment, Principle 21, adopted June 16, 1972, at the UN Conference on the Human Environment, Stockholm, Report of the U.N. Conference on the Human Environment, UN Doc. A/CONF.48/Rev1 (1973), UN Doc. A/ CONF. 48/14 (1972), reprinted in 11 ILM 1416 (1972).

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is obligated to take such measures as may be necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control . . . are conducted so as not to cause significant injury to the environment of another state or of areas beyond the limits of national jurisdiction.” Thus, under international environmental law, nations are responsible for the harm they cause. Human agency in producing environmental harm essentially defines the field. It is not surprising that international environmental law’s efforts to prevent harmful conduct have found more resonance in the international community than disaster law’s rules governing affirmative assistance. This difference has its parallels elsewhere in the legal system such as American tort law. For instance, according to the Restatement of Torts, “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.”115 On the other hand, as a general matter, “[a]n actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other” unless a limited number of affirmative duties apply.116 Although other legal systems do impose affirmative duties more freely, they still tend to distinguish between a duty to assist and a duty refrain from harm. On similar grounds, developing countries see adaptation funding as compensation for the hazards created by emissions from developed countries, applying the basic precept of “[y]ou broke it, you fix it.”117 Thus, adaptation needs may have additional ethical heft (or at least intuitive appeal) beyond that of appeals for assistance after purely natural events like major earthquakes. As a result of demands by developing countries, adaptation issues have played an increasing role in climate negotiations. International law has begun to recognize a duty to engage in adaptation efforts.118 According to the Cancun Agreement, “action on adaptation . . . should follow a country-driven, gendersensitive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems . . . ” [II(12)] Moreover, the Conference of the Parties “[i]nvites all Parties to enhance action on 115  Restatement of Torts (Third) § 7(a). 116  Restatement of Torts (Third) § 37. 117  Samuel Fankhauser, If It Warms Up, Who’s Going to Pay?, The Wall Street Journal (Dec. 2009), available at http://www.wsj.com/articles/SB10001424052748703811604574531 473066785480. 118  Adaptation requires society to manage climate impacts using strategies of resistance, adjustment, and retreat. See Robert R.M. Verchick, Adapting to Climate Change While Planning for Disasters: Footholds, Rope Lines, and the Iowa Floods, 2011 BYU L. Rev. 2203, 2209 (2011).

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a­ daptation . . . taking into account their common but differentiated responsibilities and respective capabilities by undertaking [specified actions].” [II(14)]119 Furthermore, Article III(14) of the Cancun Agreement calls on “all Parties to enhance action on adaptation . . . taking into account their common but differentiated responsibilities and respective capabilities by undertaking [specified actions].”120 In addition, Article III(14)(e) specifically calls for disaster reduction committees. The Rio+20 Declaration also recognizes the need to address the link between climate change and disaster risks. Paragraph 184 provides: We stress the importance of stronger interlinkages among disaster risk reduction, recovery and long-term development planning, and call for more coordinated and comprehensive strategies that integrate disaster risk reduction and climate change adaptation considerations into public and private investment, decision-making and the planning of humanitarian and development actions, in order to reduce risk, increase resilience and provide a smoother transition between relief, recovery and development. Paragraph 190 also “emphasize[s] that adaptation to climate change represents an immediate and urgent global priority.” Adaptation to climate change is likely to reduce harm from disasters in several ways. First, it may provide funding sources for risk mitigation that would not otherwise be available. Second, adaptation and climate change share the common goal of increasing resilience and will sometimes involve similar risks. Third, responses to climate change may involve the creation of new mechanisms to deal with such issues as compensating disaster victims or ensuring that they can find new places to live when needed. As the IPCC points out, “[i]nternational funding for disaster risk reduction remains relatively low as compared to the scale of spending on international humanitarian response.”121 Nevertheless, there are now over twenty funds engaged in adaptation funding.122 Disaster risks are the focus of at least one 119  FCCC/CP/2010/7/Add.1. 120  Decision 1/CP.16, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (UN Doc. FCCC/ CP/2010/7/Add.1, 15 March 2011). 121  IPCC [SREX], supra note 56, at 15. 122   For discussion of the funds, see UNFCCC, Adaptation Funding, http://unfccc.int/ adaptation/implementing_adaptation/adaptation_funding_interface/items/4638.php.

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fund, the Global Facility for Disaster Reduction and Recovery (GFDRR) managed by the World Bank.123 Funding for the GFDRR is relatively modest (about $300 million)124 compared with the need for improved disaster response, but at least this is a start. Beyond producing funding for projects related specifically to climate change, adaptation shares a common goal with disaster law. Adaptation is often conceptualized in terms of community resilience.125 The term seems to have been adopted from the science of ecology, where a resilient ecosystem is one that can withstand disturbance and maintain its structure despite abrupt disturbances.126 Similar forms of resilience are now the goal of disaster mitigation.127 More resilient communities will be better prepared to withstand disasters of all kind, climate-related or otherwise. Given this commonality of purpose, adaptation efforts will often serve the purposes of disaster law. In addition to these commonalities, adaptation efforts may result in creating new tools to address disaster issues (beyond just increased funding for disaster mitigation). Post-disaster compensation to allow victims to rebuild is

123  See UNFCCC, Adaptation Funding: GFDRR, available at http://unfccc.int/adaptation/ implementing_adaptation/adaptation_funding_interface/items/4632.php. 124  See GFDRR Consolidated Pledges and Contributions as of 31 December 2012, available at http://gfdrr.org/sites/gfdrr.org/files/GFDRR_Consolidated_Update_Dec_2012_1.pdf. The Fund is still small but is already actively assisting developing countries, with 226 operational grants financed with $156 million in commitments. Global Fund for Disaster Response and Recovery, Our Portfolio, available at https://www.gfdrr.org/our-portfolio. 125  See, e.g., Council on Environmental Quality, Climate Change Resilience, available at https://www.whitehouse.gov/administration/eop/ceq/initiatives/resilience; Food and Agriculture Organization of the United Nations and Organization for Economic Co-Operation and Development, Building Resilience for Adaptation to Climate Change in The Agriculture Sector (2012); available at http://www.fao.org/docrep/017/i3084e/ i3084e.pdf; Georgetown Climate Center, 20 Good Ideas for Promoting Climate Resilience: Opportunities for State and Local Government (2014). 126  See Craig Anthony Arnold & Lance H. Gunderson, Adaptive Law and Resilience, 43 Env. L. Rep. 10426–10427 (2013). 127  See, e.g., John R. Nolon, Land Use and Climate Change Bubbles: Resilience, Retreat, and Due Diligence, 39 Wm. & Mary Envtl. L. & Pol’y Rev. 321 (2015); Kate Baldridge, Disaster Resilience: A Study of San Francisco’s Soft-Story Building Problem, 44 Urban Lawyer 465 (2012), Anna K. Schwab & David J. Brower, Increasing Resilience to Natural Hazards: Obstacles and Opportunities for Local Governments Under the Disaster Mitigation Act of 2000, 38 Env. L. Rev. 10171 (2008); Andrea McArdle, Storm Surges, Disaster Planning, and Vulnerable Populations at the Urban Periphery: Imagining a Resilient New York After Superstorm Sandy, 50 Idaho L. Rev. 19 (2014).

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often a problem. Just as disaster prevention is imperfect, climate change will undoubtedly cause harm despite adaptation efforts. The international community is beginning to address that issue under the rubric of “loss and damage,” with the negotiations still in the early stages.128 Although the meaning of loss and damage remains vague, “for many people these two words are euphemisms for ‘liability and compensation.’ ”129 As we saw earlier, it is now increasingly possible to identify climate change as a contributing factor in specific disasters such as major heat waves. It would not be difficult to imagine a mechanism using contributions from high emissions countries, perhaps in the form of carbon tax proceeds, to finance some type of compensation scheme. Alternatively, “loss and damage” might include improved mechanisms for international assistance with emergency response and rebuilding. Emergency response, rebuilding, and compensation are issues within the heartland of disaster law. In addition to funding, the international regime may need to provide for those who are displaced by extreme events, particularly those events related to climate change. Impacted groups, especially among those who lack the resources to protect themselves from climate change, may pick up and move. Migration is a well-established response to disasters,130 and for that reason will increase due to climate change. For instance, as agriculture becomes more difficult or riskier, rural populations may move elsewhere. Such people are often referred to as “climate migrants” or “environmentally displaced persons” (or more colloquially as climate refugees).131 There have been proposals for an international convention to protect these individuals, at least when they cross

128  United Nations Framework Convention on Climate Change (UNFCCC), 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, UNFCCC/CP/2012/8/Add.1, Decision 3/CP.18 (2012). 129   Saleemum Huq, Loss and Damage: A Guide for the Confused (August 12, 2014), http://www.rtcc.org/2014/10/20/loss-and-damage-a-guide-for-the-confused/. For extensive discussion of the issues posed by liability for climate change, see Richard Lord, Silke Goldberg, Lavanya Rajamni, & Jutta Brunnée, Climate Change Liability: Transnational Law and Practice (2012); Michael Faure & Marjan Peeters, Climate Change Liability (2011). 130  Leah Boustan, Matthew Kahn, & Paul Rhode, Moving to Higher Ground: Migration Response to Natural Disasters in the Early Twentieth Century, 102 Amer. Econ. Rev.: Papers and Proceedings 238 (2012). 131  Cinnamon Carlarne, Risky Business: The Ups and Downs of Mixing Economics, Security and Climate Change, 10 Melb. J. Int’l L. 439, 464 (2009).

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national borders.132 Some writers have gone further and called for an global international convention that covers internal displacement.133 To date, these efforts “controversial and largely unsuccessful”, leaving climate migrants with little protection.134 Thus, there is now a large and increasing overlap between adaptation law and international disaster law. Because of the prominence of climate issues, and because developed countries may have to make concessions to developing countries, climate negotiations may well provide support for dealing with disaster risks, either through risk mitigation or by strengthening post-disaster coping mechanisms.135 Of course, there is also the chance that increasing attention to climate change will divert time and attention from strengthening the regime of international disaster law as such. This possibility cannot be excluded, but international disaster law has not made much progress to date, and it is speculative whether it would do so if left to its own devices. Given the generally fragile state of international disaster law, the odds are that this overlap will strengthen rather than weaken the current disaster regime. 4 Conclusion Environmental law is about the harm that humanity does to Nature, while disaster law is about the harm the environment can do to humanity. Surprisingly, although these two areas of law seem in some ways the reverse of each other, 132  B. Mayer, The International Legal Challenges of Climate-Induced Migration: Proposal for an International Legal Framework, 22 Colo. J. Int’l Env. L. & Pol’y (2011), 357; Bonnie Docherty & Tyler Giannini, Confronting A Rising Tide: A Proposal for a Convention on Climate Change Refugees, 33 Harv. Envtl. L. Rev. 349 (2009). For a more recent discussion of the issue, see Jessica L. Noto, Creating A Modern Atlantis: Recognizing Submerging States and Their People, 62 Buff. L. Rev. 747 (2014). For a book-length treatment, see Jane McAdam, Climate Change, Forced Migration and International Law (2013). 133  David Hodgkinson & Lucy Young, In the Face of Looming Catastrophe: A Convention for Climate Change Displaced Persons, CCDP Convention (August 2012), available at http:// www.ccdpconvention.com/documents/Updated%20treaty%20proposal.pdf. 134  Carlarne, supra note 133, at 464. For an argument that much of the analysis of the issue has lacked sufficient nuance, see Sheila C. McAnaney, Sinking Islands? Formulating A Realistic Solution to Climate Change Displacement, 87 NYU. L. Rev. 1172, 1174 (2012). 135  Clearly, reducing carbon emissions is itself a potent method of reducing future disaster risks. Although this section has focused on the connection between climate adaptation and disaster law, climate change mitigation is also crucial.

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the two are now beginning to overlap. In the process, the distinction between the natural world and the products of human activity is being blurred. Climate change is largely responsible for this shift in legal and conceptual boundaries. There is increasing confidence that climate change will cause more frequent and severe extreme events such as droughts, heat waves, and floods. The size of the effect will ultimately depend on how successful we are in limiting emissions, but even today, this trend seemingly has already started. Thus, it will often be difficult to disentangle “nature” and “human” in the sources of disaster risks. Scientists are increasingly able to link increases in the likelihood and severity of specific extreme events to climate change. Indeed, there are indications that two severe European heat waves, which between them killed 45,000 to 105,000 people, were linked with climate change.136 As the science develops, it may be increasingly possible to pin human responsibility on serious disasters. This will not only change the way we think about disasters, it will also bring into play environmental law as a way of dealing with disasters. Disaster risks will no longer be the sole fault of nature, chance, or deities—instead, they will often be attributable to the actions of countries that added huge amounts of carbon to the atmosphere. While climate change is transforming our concept of disaster, it is also beginning to augment disaster law. The legal regime addressing climate change has grown up side-by-side with international disaster law, which has struggled to make progress over the past century. Climate law is now establishing a foothold in the disaster space by dealing with risk mitigation (in the guise of adaptation) and debating victim compensation (under the rubric of loss and damage). This should be seen as a constructive development. Efforts to deal with climate change may help inject much needed resources into disaster risk mitigation. Climate negotiations may help establish better rules to address the needs of people who are displaced by extreme weather events like droughts, especially in developing countries. There is also a broader lesson to be learned, beyond the specific topics of climate and disaster law. Climate change is emblematic of the emerging epoch of the Anthropocene. Like it or not, we have entered an era where our fingerprints will be found wherever place on earth we turn.

136  See Part III(B) supra.

CHAPTER 4

A Capabilities Approach to Defining Climate Disasters Rosemary Lyster The multilateral climate change negotiations under the United Nations Framework on Climate Change (UNFCCC)1 have been underway now for twenty three years. During this time the Intergovernmental Panel on Climate Change has produced five Assessment Reports on: the physical basis of climate change; impacts, vulnerability and adaptation; and opportunities for mitigation. In December 2015, the Parties to the UNFCCC, met in Paris to forge an historic agreement for action on climate change for the year 2021 and beyond. It is sobering to have observed over the twenty three years how the Parties focused at first on mitigation in the hope that they would successfully combat escalating greenhouse gas emissions such that adaptation would be needed as a secondary climate change response. In 2010, at the Seventeenth Conference of the Parties, it was agreed that mitigation and adaptation needed to be dealt with, and funded, in equal measure. In 2013, at the Twentieth Conference of the Parties the Warsaw International Mechanism For Loss and Damage associated with the Impacts of Climate Change2 was established acknowledging that the world is now facing extreme weather and slow onset climate disasters on an unprecedented scale. These disasters are being felt in developed and developing economies with unequal consequences for all who lie in their path. The phenomenon of Climate Displaced Persons, not protected under any International Law agreement, and who according to some estimates may reach 200 million, have also been brought within the purview of the UNFCCC for the Parties attention. It is often said that mitigation is the best form of adaptation and that adaptation to climate change will cushion humans, ecosystems and indeed the Planet from the worst impacts of climate change. Yet recent reviews of the Parties’

1  Available at http://unfccc.int/files/essential_background/background_publications_htmlpdf/ application/pdf/conveng.pdf (last visited 12 September 2015). 2  Available at http://unfccc.int/resource/docs/2014/cop20/eng/l02.pdf (accessed 12 September 2015).

© Peel and Fisher (eds), ���6 | doi ��.��63/9789004318816_005

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Intended Nationally Determined Contributions (INDCs)3 going into the Paris negotiations,4 undermine the hope that the level of mitigation, required by climate science, will be assured in Paris. Also, the IPCC Working Group II’s Fifth Assessment Report5 provides little comfort to those imagining that adaptation is the solution to avoiding climate disasters. The buffer which it can provide is modest, as has been recognized by the Parties to the UNFCCC. Not only this, but funding for developing countries to engage in climate change adaptation and disaster risk reduction (DRR) activities is seriously limited.6 Even in developed countries, climate disasters overwhelm governments as insurers choose to vacate areas which they regard as uninsurable.7 All of this leads to a new area of climate change research and engagement—Climate Disaster Law. It behooves governments, insurers, corporations, academics, stakeholders and citizens to engage meaningfully with the demands of all stages of a disaster— prevention, response, recovery and rebuilding and compensation. This chapter will adopt a Capability Approach to defining climate disasters thereby calling for an integrated and coherent response to climate­ disasters at International Law. If these integrated international instruments are translated into action at the domestic level, as required upon ratification, there is hope that the worst impacts of climate disasters can be ameliorated. 3  Available at http://www4.unfccc.int/submissions/indc/Submission%20Pages/submissions. aspx (last visited 13 September 2015). 4  See, for example, the interview with Christiana Figueres, UNFCCC Executive Secretary with Kevin Rudd on CNN, 29 August 2015 during which she expressed concern at the level of emissions reduction commitment currently expressed in countries’ INDCs. 5  See IPCC, Summary for Policymakers, Regional Risks and Potential for Adaptation, available at http://ipcc-wg2.gov/AR5/images/uploads/WG2AR5_SPM_FINAL.pdf (last visited 16 July 2014) at 20–25. 6  See further, Cinnamon P. Carlarne, Disastrous Adaptation, chapter 6 in this volume. 7  This became clear during the catastrophic 2010–11 Queensland floods, following which the insurer Suncorp placed a temporary embargo on new customers in the outback towns of Roma and Emerald. In the insurer’s view, the townships had been left exposed to natural hazard risk due to underinvestment by government in the ‘prevention’ phase, despite severe and repeated flood damage to these townships in recent years. Suncorp declared the level of flood risk faced by these towns to be unacceptably high. It stated that the underinvestment in disaster mitigation was particularly clear in Roma, where a flood levee to protect the town had been discussed since 2005, with cost estimates ranging between A$ 2–A$ 15 million. Yet the preventative measure had not been undertaken. Consequently, some households in Roma were inundated by flood water three times in as many years; see Suncorp’s submission to the Productivity Commission review of Barriers to Effective Climate Change Adaptation available at http://www.pc.gov.au/inquiries/completed/climate-change-­adaptation/­submissions/ subdr127.pdf (accessed 16 January 2015).

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The responses that need to be integrated include the outcomes of the Twenty First Conference of the Parties under the UNFCCC to be concluded in Paris in December 2015, the Sendai Framework for Disaster Risk Reduction 2015–2030,8 the 2015 Transforming Our World by 2030: A New Agenda for Global Action,9 Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda,10 and the UN General Assembly Resolution 46/182, Strengthening of the coordination of humanitarian emergency assistance of the United Nations.11 1

What is a Climate Disaster?

The IPCC defines climate disasters as: Severe alterations in the normal functioning of a community or a society due to hazardous physical events interacting with vulnerable social conditions, leading to widespread adverse human, material, economic, or environmental effects that require immediate emergency response to satisfy critical human needs and that may require external support for recovery.12 The IPCC’s 2013 Working Group I Fifth Assessment Report,13 and the 2012 Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (SREX)14 evaluate how hazards, like natural climate variability and anthropogenic climate change, influence the climate extremes that contribute to disasters when they intersect with the exposure and vulnerability of human society and natural ecosystems to these extremes. The Report emphasizes that the integration of disaster risk management and climate 8   Sendai Framework for Disaster Risk Reduction 2015–2030 at Art. 14, http://www .preventionweb.net/files/resolutions/N1516716.pdf (accessed 14 September 2015). 9   Available at https://sustainabledevelopment.un.org/post2015/transformingourworld (last visited 13 September 2015). 10   Available at http://www.ohchr.org/Documents/Publications/WhoWillBeAccountable .pdf (accessed 12 December 2014). 11  Available at www.un.org/documents/ga/res/46/a46r182.htm (last visited 12 December 2014). 12  IPCC, Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (hereinafter SREX), at 5, available at http://ipcc-wg2.gov/ SREX/24. 13  See www.ipcc-wg2.gov/AR5/ar5.html (last visited 20 February 2014). 14  SREX, supra note 12.

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change adaptation can increase resilience. Meanwhile, Working Group II’s Report entitled Climate Change 2014: Impacts, Adaptation and Vulnerability15 evaluates the risks, and potential benefits, of climate change for human and natural systems and how these can be managed through adaptation and mitigation.16 The IPCC states that attribution of changes in individual climate events to anthropogenic forcing is complicated.17 However, there is sufficient evidence to suggest that climate extremes such as heat waves, record high temperatures and, in many regions, heavy precipitation have changed due to climate change in the past half century.18 Climate-related disasters can result from climate extremes, or even a series of non-extreme events, which occur in combination with social vulnerabilities and exposure to risks.19 The IPCC is careful to explain that there is not a ‘one-to-one’ relationship between extreme weather events and disasters. Rather, extreme events will lead to disaster ‘if: 1) communities are exposed to those events; and 2) exposure to potentially damaging extreme events is accompanied by a high level of vulnerability (a predisposition for loss and damage)’.20 The resilience of people exposed to extreme events can be increased if policies to avoid, prepare for, respond to and recover from the risks of disaster are adopted. However, when thresholds or tipping points associated with social and/or natural systems are exceeded, limits to resilience will be reached, posing severe challenges for adaptation. In any case, the escalating impacts associated with extreme weather events are due to several factors, including climate change, the growth of urban development and population density in exposed areas, and a higher concentration of assets and values at risk.21 The IPCC acknowledges with high confidence that economic 15  IPCC, supra note 5. 16  The Report incorporates a wider literature review including scientific, technical and socio-economic literature, while also covering a broader range of topics and sectors. Human systems, adaptation and the ocean and given greater attention than in the past. This Report builds not only on the IPCC’s Fourth Assessment Report but also the SREX Report, mentioned above. The Report addresses: Observed Impacts, Vulnerability, and Adaptation in a Complex and Changing World, as well as Future Risk and Opportunities for Adaptation. 17  SREX, supra note 12 at 368. 18  See further Daniel Farber, Disaster Law in the Anthropocene, chapter 3, in this volume. 19  Id. 20  Id. 21  Alberto Monti, Climate Change and Weather-related Disasters: What Role for Insurance, Reinsurance and Financial Sectors?, 15 Hastings West and Northwest Journal of Environmental Law and Policy, 151 (2009).

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losses from weather- and climate-related disasters have increased, although with large spatial and interannual variability.22 2

The Many Faces of Climate Disasters

The IPCC’s statements on the current and future vulnerabilities and exposure of communities to the risks of extreme weather and slow onset climate disasters have been confirmed in recent reports compiled by leading agencies, including UN Habitat, the World Bank, the Food and Agriculture Organization (FAO), and the International Food Policy Research Institute (IFPRI) to name a few. These reports include a focus on cities, food security, drought, floods, bushfires, desertification, climate displaced people including in Small Island Developing States (SIDS). 2.1 Cities The UN Habitat’s Global Report on Human Settlements 2011: Cities and Climate Change,23 released in March 2011, sets out some of the possible effects of ­climate change on the world’s cities including the following:

• By 2050, climate change will displace as many as 200 million people; • By the 2080s, sea level rise and its associated impacts will affect five times as many coastal residents as in 1990; • In coastal North African cities, 6–25 million people could be exposed to flooding from sea level rise if temperatures rise by 1–2°C; • By 2070, the top ten cities exposed to flooding will be located in developing countries (particularly in China, India and Thailand); • By 2070, up to 150 million people could be living in a 100-year flood plain

with the financial impact rising from US$3 trillion in 1999 to US$38 ­trillion by this time; In Latin America by the 2020s, 12–81 million residents could experience increased water stress and by the 2050s this could rise to 79–178 million.24

•

22  SREX, supra note 12 at 269. 23   Available at http://unhabitat.org/books/cities-and-climate-change-global-report-onhuman-settlements-2011/ (last visited 12 January 2015). 24  Id; Press Release for Chapter of the Report entitled Risky Cities: The Deadly Collision Between Urbanization and Climate Change available at http://mirror.unhabitat.org/­ downloads/docs/GRHS2011/Pr3RiskyCities.pdf (last visited 12 January 2015).

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Meanwhile, the World Bank’s 2010 report Climate Risks and Adaptation in Asian Coastal Megacities25 states that thirteen of the world’s twenty largest cities are located on the coast, and more than a third of the world’s people live within 100 miles (160 kilometers) of a shoreline.26 By 2070, nine of the top ten most population exposed cities are expected to be in Asian developing countries. Adaptation poses an enormous challenge for flood-prone cities, such as Ho Chi Minh City, Kolkata, Dhaka, and Manila, facing potential sea level rise and increased frequency and intensity of extreme weather events, with the urban poor most at risk from exposure to hazards. Despite this, few developing country cities have attempted to incorporate climate change systematically into their decision-making processes.27 2.2 Food Insecurity The IPCC WG II states that the impacts of climate change have been more negative than positive (high confidence) especially with regard to wheat and maize (medium confidence), while rice and soybean have been less affected. Climate change is one of the factors explaining rapid food and cereal price increases following climate extremes (medium confidence).28 These scenarios need to be viewed against the background of the 2008 food-price hike leading to food riots and political change in several countries, as well as the excessive heat and drought in Russia leading to wildfires29 and a grain embargo, and the unprecedented floods in Pakistan. Food demand will inevitably increase as the world population reaches 9 billion by 2050.30 As well, the redistribution of catch potential of marine fisheries from tropical countries to higher latitudes has potential implications for food security (medium confidence). If

25   Available at http://siteresources.worldbank.org/EASTASIAPACIFICEXT/Resources/ 226300-1287600424406/coastal_megacities_fullreport.pdf (last visited 13 January 2014). 26  World Bank Report, supra note 25 at xi. 27  Id. 28  IPCC, supra note 5 at 6. 29  See also Jerry Williams et al. Findings and Implications from a Coarse/Scale Global Assessment of Recent Selected Mega-Fires, 5th International Wildland Fire Conference, Sun City, South Africa, 9–13 May 2011; here the authors report on ‘mega-fires’ which are extraordinary conflagrations unprecedented in the modern era for their deep and longlasting social, economic and environmental impacts. Global warming is identified as one of the cumulative effects changing wildfire protection in many countries; available at http://foris.fao.org/static/pdf/fm/5thIWFConference2011.pdf (last visited12 January 2015). 30  IPCC, supra note 5 at 1.

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temperatures rise beyond 4°C or more and this is combined with increased food demand there is a large risk of food insecurity.31 The Food and Agriculture Organization (FAO),32 meanwhile, estimates that, in 2012–14, 805 million people, or about one in nine of the world’s population, were chronically undernourished with insufficient food for an active and healthy life, and with the vast majority of them living in developing regions.33 To meet the expected demand for food in 2050 without significant price increases, and in light of the growing impacts of climate change, among others, the world needs to increase food production by 70–100 per cent.34 Since food production is critically dependent on local temperatures and precipitation, climate change will only add to these pressures as the capacity for farmers to adapt their practices is questionable.35 Meanwhile, the IPCC points out climate change is very likely to have an overall negative effect on yields of major cereal crops across Africa, though with strong regional variability in the degree of loss. At mid-century, estimated yield losses range from 18 percent for southern Africa to 22 percent aggregated across sub-Saharan Africa, with yield losses for South Africa and Zimbabwe in 31  Id. at 18. 32  FAO, The State of Food Insecurity in the World 2014 (2014) available at http://www.fao. org/3/a-i4030e.pdf (last visited 23 November 2014). See also Sepo Hachigonta et al. (eds.), Southern African Agriculture and Climate Change: A Comprehensive Analysis (2013) available at www.ifpri.org/publication/southern-african-agriculture-and-climate-change (last visited 24 November 2014); Abdulai Jalloh, et al. (eds.), West African Agriculture and Climate Change: A Comprehensive Analysis (2013) available at www.ifpri.org/publication/ west-african-agriculture-and-climate-change (last visited 24 November 2014); Michael Waithaka et al. (eds.), East African Agriculture and Climate Change: A Comprehensive Analysis (2013) available at http://www.ifpri.org/publication/east-african-agricultureand-climate-change-comprehensive-analysis (last visited 24 November 2014). 33  FAO, supra note 32 at 12. 34  See J. Pretty et al., The top 100 questions of importance to the future of global agriculture 8 International Journal of Agricultural Sustainability 219 (2010), available at www. julespretty.com/wp-content/uploads/2013/09/16.-100-Questions-IJAS-2010-Pretty-et-al2010.pdf (last visited 12 January 2015) at 220. See also Gerald C. Nelson et al., Food Security and Climate Change: Challenges to 2050 and Beyond (2010) available at www .ifpri.org/sites/default/files/publications/ib66.pdf (last visited15 January 2015). See also FAO, “Climate Smart” Agriculture: Policies, Practices And Financing For Food Security, Adaptation And Mitigation (2010) available at www.fao.org/docrep/013/i1881e/i1881e00. htm (last visited12 January 2015) and CARE International, Adaptation and Food Security (2011) available at http://www.care.org/sites/default/files/documents/CC-2011-CARE_ Food_Security_Brief.pdf (last visited 12 January 2015). 35  Pretty, supra note 34 at 2.

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excess of 30 per cent.36 Climatic stresses account for 62.5 percent of all stresses on land degradation in Africa, while seasonal temperatures in the Sahel have already risen by 1.5–2.0°C as the incidences of drought and erratic rainfall have increased over the last forty years.37 As the Human Development Report 2014: Sustaining Human Progress: Reducing Vulnerabilities and Building Resilience (the HDR)38 notes, in the first half of 2012, Niger experienced a severe food and nutrition crisis triggered by a drought spanning the latter part of 2011 and the beginning of 2012, compounding similar drought-related food crises in 2010, 2005 and 2004. These droughts also affected neighboring countries and others in the Sahel.39 Events in other countries exacerbated the 2012 crisis in Niger including the influx of tens of thousands of people fleeing from conflict in Mali.40 Meanwhile, in the drylands of the Horn of Africa,41 home to over 20 million people, chronic poverty is pervasive. Most people rely on pastoral livestock production and related activities for their livelihoods. Yet in recent years this region has become one of the most disaster-prone in the world, as drought affects more people more frequently than any other disaster. In 2011, the Horn of Africa suffered one of its worst droughts, which claimed 50,000 lives and affected 13 million people, including 4.5 million in Ethiopia and 4 million in Kenya. This cost Kenya an estimated 17 per cent of its GDP.42 With climate change and increased climatic variability, drought will remain a constant hazard making it imperative that DRR is integrated into all aspects of development and humanitarian policy and programming. 36  See IPCC’s Fifth Assessment Report: What’s in it for Africa? Executive Summary (2014) available at http://cdkn.org/wp-content/uploads/2014/04/J1731_CDKN_FifthAssesment Report_WEB.pdf (last visited 23 November 2014). 37  SREX, supra note 12 at 19. 38   Available at http://hdr.undp.org/sites/default/files/hdr14-report-en-1.pdf (last visited 13 September 2015). 39  Id. at 93. 40  Id. 41  See Catherine Fitzgibbon & Alexandra Crosskey, Disaster Risk Reduction Management in the Drylands in the Horn of Africa (2013) available at http://globalallianceforaction .com/docs/Disaster%20risk%20reduction%20management.pdf (last visited 16 December 2014). See also Tobi Petrocelli et al., Climate Change and Peacebuilding in the Sahel, 25 Peace Review: A Journal of Social Justice 546 (2013). 42  UNCCD, Land-based Adaptation and Resilience: Powered by Nature (2014) available at www.unccd.int/Lists/SiteDocumentLibrary/Publications/Land_Based_Adaptation_ENG% 20Sall_web.pdf (last visited 24 November 2014) at 3.

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From 2006 to 2010, the Syrian Arab Republic suffered an unprecedented drought, devastating much of its rural society and contributing to the Syrian civil war in 2011, as impoverished farmers migrated into the slums of the city. The HDR notes that the United Nations Integrated Strategy for the Sahel43 takes a multifaceted approach to humanitarian, development and security activities but fails to address directly the underlying driver of climate change.44 Smallholder farmers in South Asia are also particularly vulnerable with 93 million small farms in India. These groups already face water scarcity while some studies predict crop yields up to 30 per cent lower over the next decades, even as population pressures continue to rise.45 2.3 Floods and Cyclones In the summer of 2010, China and Pakistan experienced extraordinary rainfall resulting in 6,000 deaths. One-fifth of Pakistan was flooded, affecting 20 million people, inundating thousands of schools and health centers and destroying 2.2 million hectares of crops, making this the worst natural disaster in Pakistan’s history.46 Although this flood resulted in an estimated $9.5 billion in economic loss only $100 million was insured as it occurred in very low income areas of a low income country.47 Five million people were affected by undernourishment and severe damage of crops led to higher food prices.48 In China an estimated 230 million people were affected, 15 million of who became homeless. The overall damage was estimated to be US$53 billion for China and US$6 billion for Pakistan, with estimated insured losses of only US$761 million in China. This left the rest of the damage to be absorbed by individuals, government and non-governmental organizations (NGOs) as clearly the private sector, acting alone, cannot provide adequate security and insurance to low-income

43   Available at http://unowa.unmissions.org/Default.aspx?tabid=869 (last visited 11 December 2014). 44  HDR, supra note 38 at 95. 45  Id. at 127. 46  Swiss Re, Natural Catastrophes and Man-Made Disaster in 2010: A Year of Devastating and Costly Events (2010) at 8 available at www.swissre.com/sigma/?year=2011#inline (last visited 12 January 2015). 47  Abhas Jha et al., Five Feet High and Rising: Cities and Flooding in the 21st Century (2011) available at http://library1.nida.ac.th/worldbankf/fulltext/wps05648.pdf (last visited 14 September 2015). 48  Id. at 14.

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clients.49 Meanwhile, in Brazil a flood triggered mudslides that killed more than 600 people, one of the country’s deadliest natural disasters on record.50 Lloyd’s calculated the total damage from the 2011 Thai flood as US$30 billion or 8.68 per cent of GDP.51 Insured losses were US$12 billion or 3.47 per cent of GDP, leaving an insurance gap of US$18 billion or 5.21 per cent of GDP. However, when the impact on international supply chains is included, the World Bank estimated the total loss to be US$45.7 billion, making this one of the top five costliest natural disaster events in modern history.52 Then, in November 2013, Typhoon Haiyan struck the Philippines causing an estimated total damage of US$14.5 billion with only US$300 million of the loss insured. Weather risks are changing faster in North America than anywhere else in the world.53 In 2012, Hurricane Sandy devastated the Caribbean and the East Coast of the United States and inflicted widespread damage. The US National Hurricane Center reports54 that, due to its tremendous size, it drove a catastrophic storm surge55 into the New Jersey and New York coastlines. The features of the hurricane included winds,56 extraordinary size,57 storm surge (the highest of which was 12.65 feet (3.85 meters) in New York),58 and rainfall (up to 713 millimeters) which along with storm surge, contributed to the flooding in New York and New Jersey adjacent to the Hudson River.59 There were at least

49  Swiss Re, supra note 46 at 8. See also Joanne Linnerooth-Bayer et al., Insurance, Developing Countries and Climate Change, 34 The Geneva Papers 381 at 383 (2009). 50  Abhas Jha, supra note 47 at 13. 51  See Lloyd’s Global Underinsurance Report (Lloyd’s, October 2012), available at www .lloyds.com/~/media/Files/News%20and%20Insight/360%20Risk%20Insight/Global_ Underinsurance_Report_311012.pdf (last visited 12 January 2015). 52  AON Benfield, 2011 Thailand Floods Event Recap Report (2012) available at http:// thoughtleadership.aonbenfield.com/Documents/20120314_impact_forecasting_thai land_flood_event_recap.pdf (last visited 12 January 2015) at 3. 53  Munich Re, Severe Weather in North America: Perils, Risk, Insurance (2012) available at www.munichre.com/touch/portal/en/touch_login/index.html (last visited 17 February 2015). 54  See US National Hurricane Center, Tropical Cyclone Report Hurricane Sandy (2012) available at www.nhc.noaa.gov/data/tcr/AL182012_Sandy.pdf (last visited 12 January 2015). 55  Storm surge is defined as the abnormal rise of water generated by a storm, over and above the predicted astronomical tide, and is expressed in terms of height above normal tide levels. Sandy caused water levels to rise along the entire east coast of the United States from Florida northward to Maine; National Hurricane Center, id. at 8. 56  Id. at 4. 57  Id. at 6. 58  Id. at 8. 59  Id. at 13.

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147 direct deaths recorded.60 More than 650,000 houses were either damaged or destroyed. Up to 8.5 million customers lost power for weeks or even months in some areas. Preliminary US damage estimates are near US$50 billion, making Sandy the second-costliest cyclone since 1900 to hit the United States, after Hurricane Katrina of 2005.61 Insured losses for Hurricane Sandy amounted to US$20 billion.62 2.4 Extreme Heat, Bushfires and Other Health Impacts Globally, the current contribution of climate change to ill-health is small relative to other stressors, although the IPCC reports that some regions have experienced increased heat-related and decreased cold-related mortality,63 while water-borne illnesses and disease vectors have altered their distribution (medium confidence). As Farber has noted,64 the European summer of 2003 was the worst natural disaster to strike the developed world in modern history. It was the hottest summer in at least 500 years and claimed 70,000 lives.65 In 2012, the record heat wave in and around Moscow and extensive peat bog and forest fires claimed 56,000 lives.66 One-third of Russia’s grain was lost, driving up food prices worldwide.67 Meanwhile, the 2009 bushfires in Victoria, Australia, which coincided with an extreme heat wave, cost an estimated AS $4 billion, with many of the costs unable to be quantified. The IPCC states that throughout the twentieth century, climate change will result in increasing ill-health especially in low income developing countries (high confidence). There will be more injuries, diseases and deaths from intense heat waves and fires (very high confidence); diminished food production ­resulting in under-nutrition in poor regions (high confidence); reduced labor productivity in vulnerable population; and increased risk from foodand water-borne diseases (very high confidence) and vector borne diseases (medium confidence). Globally over the twenty-first century the negative health impacts of climate change are likely to outweigh any positive impacts (high confidence). Impacts can be reduced through the provision of clean water and 60  Id. at 1. 61  Id. at 14–15. 62  Hortense Leon, Sandy’s Aftermath 73 Mortgage Banking 68 at 69 (2012). 63  IPCC, supra note 5 at 6. 64  Daniel A. Farber, Adapting to Climate Change: Who Should Pay? 23 Journal of Land Use 1 (2007). 65  Anastasia Telesetsky, Insurance as a mitigation mechanism: managing international greenhouse gas emissions through nationwide mandatory climate change catastrophe insurance, 27 Pace Environmental Law Review 691 at 692 (2010). 66  Swiss Re, supra note 46 at 1. 67  Id. at 13.

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sanitation, essential health care such as vaccination and child health services, improved disaster preparedness and response and poverty alleviation (very high confidence).68 2.5 Water Scarcity The IPCC notes that in many regions the quantity and quality of water resources have been affected because of changing precipitation or melting snow and ice (medium confidence). As climate change causes glaciers to shrink at a global scale (high confidence) downstream water resources are affected (medium confidence). Permafrost warming and thawing in high-latitude regions is also occurring (high confidence). The proportion of the population currently experiencing water scarcity and affected by major river floods will increase with the level of warming in the twenty-first century.69 Adaptive water management, including scenario planning, learning-based approaches and flexible and lowregret solutions, can build resilience to uncertain hydrological changes and climate change (limited evidence, high agreement).70 The United Nations Convention to Combat Desertification (UNCCD)71 states that by 2015, more than 2.8 billion people in forty-eight countries will face water scarcity or stress conditions and 2.4 billion people may be living in areas subject to periods of intense water scarcity. Up to 54 countries, with a combined population of 4 billion people, or 40 per cent of the projected global population, could face water stress or scarcity by 2050.72 The increased frequency and intensity of droughts and flash floods are destroying the land—the Earth’s main fresh water store. Degraded land, impacted by climate change, needs to be restored to protect the underground sources needed by present and future generations. Failing this it will be difficult to diffuse ethnic tensions or reverse migration flows.73 2.6 Climate Displaced Persons In recent times, the world has witnessed a series of climate extremes that are at the limits of modern human experience.74 An extensive body of literature 68  IPCC, supra note 5 at 20. 69  Id. at 14. 70  Id. 71   Available at, http://www.unccd.int/en/about-the-convention/Pages/About-the-Conven tion.aspx. 72  Id. at 6. 73  Fitzgibbon & Crosskey, supra note 41 at 4. 74  See WRI, Decision Making in a Changing Climate: Adaptation Challenges and Choices (2010–2011) available at http://pdf.wri.org/world_resources_report_2010-2011.pdf (last ­visited 27 November 2012).

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on the migration of people away from areas impacted by climate change has emerged over the past three decades.75 As discussed above, these extremes are undercutting development efforts where many affected communities are already poor and vulnerable.76 Indeed, they threaten, both now and in the future, to see millions of people on the move, whether internally or across international borders.77 By 2020, an estimated 60 million people could be on the move from the desertified78 areas of sub-Saharan Africa towards North Africa and Europe. By 2050, 200 million people may be permanently displaced environmental migrants.79 Over three decades the terminology to accurately describe such people has evolved, not necessarily sequentially, from ‘environmental refugees’, ‘environmental migrants’, ‘environmental displaced persons’, and ‘climate refugees’. The author80 adopts the International Organization for Migration’s (IOM) term ‘climate displaced persons’ (CDPs) which it defines as: Persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment as a result of climate change that adversely affect their lives or living conditions are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their own country or abroad.81 Walter Kalin, the UN Special Rapporteur on the Human Rights of Internally Displaced Persons from 2004 to 2010, distinguishes between the various events which precipitate displacement including:

75  For example, the author has read 35 interdisciplinary journal articles on this matter as well as numerous reports by UN agencies, the World Bank, the Asian Development Bank and research agencies. They are too numerous to cite for present purposes but many are cited in this chapter. 76  UNDP, supra note 74 at 29. 77  Id. at 13. 78  UNCCD, Desertification: The Invisible Frontline (2014) available at www.unccd.int/Lists/ SiteDocumentLibrary/Publications/Desertification_The%20invisible_frontline.pdf (last visited 24 November 2014). 79  Fitzgibbon & Crosskey, supra note 41 at 7. 80  See Rosemary Lyster, Protecting the Human Rights of Climate Displaced Persons: the promise and limits of the United Nations Framework Convention on Climate Change, in Research Handbook On Human Rights And The Environment 423 (Anna Grear & Louis Kotze eds., 2015). 81  IOM, Climate Change and Migration: Improving Methodologies to Estimate Flows (2008) available at www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/ published_docs/serial_publications/MRS-33.pdf (last visited 11 February 2014) at 31.

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• Sudden onset disasters, such as flooding, windstorms or mudslides caused by heavy rainfalls; • Slow onset environmental degradation, by rising sea levels, increased salinization of groundwater and soil, long-term effects of recurrent flooding, thawing of permafrost, as well as droughts and desertification; So-called sinking small island states (SIS); Areas designated by governments as ‘high risk zones too dangerous for human habitation on account of environmental dangers’; and Displacement following ‘unrest seriously disturbing public order, violence or even armed conflict’ that may be triggered, at least partially, by a decrease in essential resources due to climate change.82

• • •

Unique and durable legal solutions need to be crafted so as to ameliorate the plight of current and future CDPs over various time spans.83 Unfortunately, all scholars84 engaged with the need to protect CDPs concur that current international and domestic legal regimes85 are woefully inadequate, especially as CDPs do not satisfy the definition of ‘refugee’ under the 1951 United Nations Convention relating to the Status of Refugees.86 While they might propose a number of solutions87 to this dilemma, there is at this time absolutely no resolution of the matter, with the result that CDPs enjoy no specific legal protections at international law. 82  W. Kalin, Conceptualizing Climate-Induced Displacement in Climate Change and Displacement: Multidisciplinary Perspectives 81 at 85–6 (Jane McAdam ed., 2010). For another good summary of the categories of climate change migration see Mostafa Mahmud Naser, Climate Change, Environmental Degradation, and Migration: A Complex Nexus, 36 William and Mary Environmental Law and Policy Review 713 (2012). 83  Koko Warner et al., Changing Climate, Moving People: Framing Migration, Displacement and Planned Relocation 26 (2013). 84  See, for example, Lyster, supra note 80 in which reference to all of the authors and legal instruments are extensively discussed and referenced. 85  Id. in which reference to all of the authors and legal instruments are extensively discussed and referenced. 86  Available at www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf (last visited 1 March 2015). This was confirmed in a recent case before the High Court of New Zealand where a citizen from Kiribati claimed refugee status on the basis that inhabitants of Kiribati will be obliged to leave their islands because of sea level rise and environmental degradation. The High Court rejected the notion that he fell within the definition of a ‘refugee’; see Ioane Teitiota v. The Chief Executive of the Ministry of Business Innovation and Employment NZHC 3125 [2013]. 87  For protection under the UNFCCC see Lyster, supra note 80 where all other proposals are also discussed.

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2.7 Species and Ecosystems Impacts In response to climate change, many terrestrial, freshwater and marine species have shifted their geographical ranges,88 seasonal activities, migration patterns, abundances and interactions (high confidence). During the past millions of years far slower rates of climate change, compared with anthropogenic climate change, have caused significant ecosystem shifts and species extinctions (high confidence).89 As climate change interacts with habitat modification, overexploitation, pollution and invasive species, extinction risk is present in all Representative Concentration Pathway (RCP) scenarios (high confidence).90 Within this century, medium to high RCPs pose a high risk of abrupt and irreversible regional-scale change in the composition, structure and function of terrestrial and freshwater ecosystems, including wetlands (medium confidence). For medium to high RCPs, ocean acidification poses substantial risks to marine ecosystems, especially polar ecosystems and coral reefs (medium to high confidence).91 In recognition of this, the Conference of the Parties to the Convention on the Conservation of Biological Diversity has recently called on all Parties to ‘identify, monitor and address the impacts of climate change and ocean acidification on biodiversity and ecosystem services, and assess the future risks for biodiversity and the provision of ecosystem services using the latest available vulnerability and impact assessment frameworks and guidelines’.92 3

The Capability Approach and Climate Disasters

This chapter contributes a unique theoretical approach to defining climate disasters influenced primarily, but not exclusively, by the work of Amartya Sen and Martha Nussbaum.93 The life work of Sen and Nussbaum cannot be adequately represented here. Suffice it to say, for present purposes, that Sen’s and Nussbaum’s essential question is: ‘What is this person able to do and to be?’ 88  For a diagrammatic representation of the maximum speeds at which species can move across landscapes (based on observation and models), see IPCC, supra note 5, Figure SPM.5 at 15. 89  Id. at 4. 90  Id. at 15. 91  Id. at 17. 92  Decision X/33. Biodiversity and climate change, UNEP/CBD/COP/DEC/X/33, 29 October 2010. 93  Martha C. Nussbaum, Creating Capabilities: The Human Development Approach (2011).

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The Capability, or Capabilities (as preferred by Nussbaum), Approach answers this question.94 Capability has two essential tenets: freedom and functionings (‘beings and doings that people value and have reason to value’).95 For Sen, freedom has two aspects—process aspects (human beings are seen as active agents, directing their own lives and acting as agents that further larger social goals and objectives) and opportunity aspects (ability to choose and achieve valued functionings in their own lives).96 The Approach differs from a tradition in economics that measures the real value of a set of options by the best use that can be made of them. Rather, options are regarded as freedoms, and freedom has intrinsic value.97 Nussbaum has listed what the key Capabilities are including: Life; Bodily Health; Bodily integrity; Senses, imagination, and thought; Emotions; Practical reason; Affiliation; Other species (being able to live with concern for and in relation to animals, plants, and the world of nature); Play; and Control over one’s environment.98 As Nussbaum explains, the Approach takes each person as an end and asks about the opportunities available to each person. It is not concerned with total or average well-being and people’s powers of self-definition are respected.99 It is resolutely pluralist about value in the sense that the central Capability achievements are different in quality, not just quantity. Finally, it is concerned especially with Capability failures that are the result of discrimination or marginalization, and which result in entrenched social injustice and inequality. Government and public policy are vested with an urgent task to improve the quality of life for all people, as defined by their Capabilities. The author deliberately adds to Capability failures the impacts of climate disasters. However, it would be remiss to be considering climate disasters from a purely anthropomorphic perspective. Sen and Nussbaum have both been criticized for failing to address adequately the plight of non-humans and ecosystems when developing their Capability Approach and ideas of justice. Nevertheless, others, including Schlosberg100 have argued persuasively for extending the Capability Approach beyond the human. This can be done in one of two ways: 94  Id. at 20. 95  See Sabina Alkire, The Capability Approach to Quality of Life 5 (2008), www.stiglitzsen-fitoussi.fr/documents/capability_approach.pdf (last visited 13 January 2015). 96  Id. 97  Nussbaum, supra note 93 at 25. 98  Id. at 33–34. 99  Id. at 18. 100  David Schlosberg, Climate Justice and Capabilities: A Framework for Adaptation Policy, 26 Ethics & International Affairs 445 (2012).

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either by recognizing the extent to which human Capabilities rely on environmental ecosystem services, or by proposing an extension of the Capability Approach to non-human nature.101 Schlosberg points to the fact that although Sen’s contribution beyond human Capabilities is limited, he has acknowledged that ‘variations in environmental conditions, such as climate circumstances (temperature ranges, rainfall, flooding and so on)’ influence Capabilities, and impact on functioning and freedoms.102 Sen has also acknowledged that there is an obligation to preserve the Capabilities of future generations and endangered species. Nussbaum meanwhile acknowledges that all sentient beings have entitlements grounded in justice. She goes on to say that ‘tragic conflicts between species should be solved by working for a world in which the conflicts will not occur.’103 She states that her main contention is that ‘all animals are entitled to a threshold level of opportunity for a life characteristic of their kind’.104 Nussbaum rejects the idea that ecosystems are ends in themselves, apart from the individuals, although she does accept that larger systems are valuable as supports for individual lives. She claims that environmental protection is so important that until such time as there is some consensus that animal and ecosystem Capabilities matter for their own sake, adopting anthropocentric reasons for recognizing non-human Capabilities must suffice.105 Schlosberg concludes that there are two ways that the Capabilities Approach can frame a conception of climate justice—and to climate disasters for present purposes. First, if the Capabilities Approach is about functioning then function for human beings means providing for those ecological support systems that make functioning possible. Secondly, and preferably, the Approach could be extended beyond human functioning to the functioning of nature and ecological systems to recognize the work that functioning ecosystems do for all that is not human as well. If ecological support systems are disrupted an injustice is visited upon all humans and non-humans that depend on the integrity of the system for their own functioning.106 As Scholsberg notes, such a holistic Capabilities Approach can be relied upon to clarify and physically map the vulnerabilities of a wide range of humans, non-humans and ecological communities and to benchmark the goals of adaptation policy.107 101  Id. 102  Id. at 454. 103  Nussbaum, supra note 93 at 63. 104  Id. at 162. 105  Id. at 165. 106  Schlosberg, supra note 100 at 456. 107  Id. at 458.

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Invoking the Capability Approach to defining climate disasters is especially justified when one considers the fact that the capacity to manage risks and adapt to change is unevenly distributed within and across nations, regions, communities and households. When disasters strike, the poor quickly exhaust limited resources, further undermining household sustainability. In the long run, this reduces capital and increases hazard exposure or vulnerability, while the poverty and vulnerability trap renders recovery to pre-disaster levels of well-being increasingly difficult. Children, the elderly and women are more vulnerable to extreme climate and weather events. Individual and household vulnerability also arises due to other instances of inequality such as race, caste, religious affiliation and physical disability, which may intersect with gender and age effects.108 In as much as Nussbaum offers an approach for ‘Creating Capabilities’, so too do climate disasters have an overwhelming ability to destroy Capabilities. There is no doubt that climate disasters destroy Capabilities and significantly retard development efforts to build and enhance Capabilities. The Capability Approach, espoused in their work, is inspirational for two reasons. First, it resonates well with the author’s contention that climate disasters fundamentally destroy and undermine Capabilities unless vulnerability and exposure are reduced and resilience building is actively pursued. Even then, extensive uncompensated economic and non-economic losses are likely to exist. The capacity of developed countries to respond to the challenge of climate disasters depends primarily on the political will of leaders to embrace climate science and engage in a comprehensive program of: prevention; response; recovery, rehabilitation and reconstruction; and compensation. In developing countries, the capacity to respond to disasters depends largely on having the financial resources to engage in adaptation and DRR activities, while compensation remains a significant difficulty. The Capability Approach, Human Development and Climate Disasters Indeed, the HDR focuses on the risk of major deterioration in human development conditions, which may result in poverty and destitution, or worsen the conditions of those already on the low scale of development.109 It develops two basic propositions which are that: people’s vulnerability is heavily influenced by their Capabilities and social context; and failures to protect people against vulnerability are mostly a consequence of inadequate policies and poor or dysfunctional social institutions. The Report focuses on those particularly 3.1

108  Id. at 456. 109  HDR, supra note 38 at 15.

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v­ ulnerable to external shocks, especially from persistent or systematic threats to human development such as climate change. The two central theses of this Report are that: sustainably enhancing and protecting individual choices and capabilities and societal competences are essential; and human development strategies and policies must consciously aim to reduce vulnerability and build resilience.110 These Reports not only assist with understanding the key concepts which underpin climate disasters and resilience to them, but tend to support the relevance of the Capability Approach to climate disasters. Vulnerability may be regarded as the propensity or predisposition to be adversely affected by climate disasters and must be viewed in the context of a wide range of factors including: diverse historical, social, economic, political, cultural, institutional, natural resource and environmental conditions. The HDR notes that systemic and perennial sources of vulnerability are especially experienced by some people like women, children, adolescents and the elderly.111 These aspects of vulnerability all affect a group’s, or individual’s, capacity to anticipate, cope with, resist and recover from the adverse effects of physical events, and create multiple sites of vulnerability. As the HDR notes, while globalization has on balance produced major human development gains, especially in many developing countries, the impacts of climate change, among other factors, have created a widespread sense of precariousness. This is because human development achievements can quickly be undermined by a climate disaster or a global economic slump. Real progress in human development not only entails enlarging people’s Capabilities but is also a question of how secure these achievements are, and whether conditions are sufficient for sustained human development. Unless vulnerability is explored and assessed, an account of human development progress is incomplete.112 The HDR 2014 goes beyond traditional notions of vulnerability, which describe exposure to risks and risk management, to emphasize the close links between reducing vulnerability and advancing human development, as well as the prospect of disasters eroding people’s Capabilities and choices.113 The implication is that a sustained enhancement of individuals’ and societies’ capabilities is needed so that persistent vulnerabilities to climate disasters, which are often structural and tied to life cycle vulnerabilities, can be reduced.114

110  Id. at 16. 111  Id. at 1. 112  Id. at 1. 113  Id. at 3. 114  Id. at 1.

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To emphasize the need for climate change, DRR, sustainable development and human security measures to converge in the post-2015 world, the HDR states that reducing poverty and vulnerability to falling into poverty must be a central objective of the post-2015 agenda.115 The more than 2.2 billion people, or 15 percent of the world’s population, who are living in extreme poverty and deprivation are the most vulnerable. Three-quarters of the world’s poor live in rural areas where rural workers face the highest prevalence of poverty, and are particularly vulnerable to climate change. While Indigenous peoples make up only 5 percent of the global population, they represent 15 percent of the world’s poor, with 30 percent of them in extreme rural poverty. More than 60 percent of people aged over sixty live with a disability resulting in severe challenges for full participation in society.116 International migrants, who account for over 3 percent of the world’s population, have fewer rights than citizens and less access to social protections and voting rights. Forced migration due to conflict is another source of vulnerability as the Syrian crisis dramatically shows,117 including displacement caused by climate change, as discussed in this chapter. The Minorities at Risk Project118 identifies more than 283 minority groups in more than 90 countries who suffer varying degrees of political and economic exclusion, ranging from neglect or repression— including Indigenous peoples. Overlapping structural vulnerabilities magnify the adverse impact on freedoms and functioning quite substantially.119 Furthermore, during 2000–12, more than 200 million people mostly in developing countries were exposed to natural disasters, such as floods and droughts every year. The 2011 HDR has already highlighted the fact that climate change could jeopardize poverty eradication given the world’s poorest communities’ exposure and vulnerability to its impacts. The HDR notes that nearly 80 percent of the global population lacks comprehensive social protection. Consequently, policy interventions to prevent the devastation caused by climate disasters can build societal resilience but they rely on vigorous collective action, equitable and effective institutional responses, and far-sighted leadership at the local, national and global scale.120 The Report emphasizes the close links between reducing vulnerability and advancing human development, as well as the prospect of disasters erod115  Id. at 2. See also IPCC, supra note 5. 116  Id. at 4. 117  Id. at 76. 118  See http://www.cidcm.umd.edu/mar/ (last visited 21 November 2014). 119  HDR, supra note 38 at 22. 120  Id. at 4.

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ing people’s Capabilities and choices, which severely restricts their agency and prevents them from coping with threats.121 The HDR 2014 highlights the notion of ‘life cycle vulnerability’ on the ground that Capabilities accumulate over time and unless nurtured and maintained they can stagnate and decline.122 However, unlike poverty, which can be directly observed, vulnerability cannot and so is essentially a measure of what might happen in the future.123 The implication is that a sustained enhancement of individuals’ and societies’ Capabilities, through climate change adaptation and DRR, is needed so that persistent vulnerabilities to climate disasters can be reduced.124 Those living in extreme multi-dimensional poverty and deprivation are the most vulnerable, while it should also be remembered that many countries in the bottom tier of the Human Development Index (HDI) are emerging from long periods of conflict and continuing armed violence.125 The Capability Approach, Developed Economies and Climate Disasters One of the most recent, but not the only, climate disasters in a developed economy was Hurricane Katrina. The implications of this disaster have been analyzed by many, including Verchick who, in Facing Catastrophe: Environmental Action for a Post-Katrina World,126 gives a graphic account of how that event impacted disproportionately on those already experiencing ‘lifecycle vulnerability’, many of whom have yet to recover. It is a salutary reminder of the many ways in which climate disasters interfere with the Capabilities of the poor and the vulnerable, whether they reside in developed or developing countries. As the HDR 2014 has pointed out, recent austerity measures have increased poverty and vulnerability in more than half of European countries, leaving children, immigrants, people from a migrant background, ethnic minorities and people with disabilities most at risk to ‘shocks’.127 Verchick has described the failure of government to protect the poor and the vulnerable during Hurricane Katrina and demonstrates that the risk of being impacted by climate disasters cannot be divorced from the victim’s 3.2

121  Id. at 23. 122  Id. at 3. 123  Id. at 29. 124  Id. at 1. 125  Id. at 4. 126  See Robert R.M. Verchick, Facing Catastrophe: Environmental Action for a Post-Katrina World 116–127 (2010). 127  H DR, note 38 at 72.

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individualized exposure and vulnerability.128 Rather, there are institutional and community-wide factors at play. As Verchick and others have catalogued, from an exposure perspective the disaster losses of Hurricane Katrina, including the demolished homes, shattered communities and lost jobs, were borne disproportionately by people of color, the poor and women, with more than 60 percent of those who died being elderly,129 Within the city of New Orleans, African Americans and the poor are heavily represented in parts of the city that are more flood-prone, including the North East and the Lower Ninth Ward. Consequently, the population in the damaged metropolitan area was 45.8 percent African American, while only 26.4 percent of the population in undamaged areas were African American. Such housing patterns followed historical formal and informal segregation efforts, as well as traditional market forces. According to Verchick, race continues to be a potent variable in explaining the spatial layout of urban areas, including housing patterns, street and highway configurations, commercial development and the siting of industrial facilities.130 This explains why the poor and the vulnerable were disproportionately exposed to dangerous chemicals, gases or toxins when Katrina’s flood waters inundated at least three hazardous chemical sites, each located near poor African American communities. The gendered nature of exposure to Katrina was manifest in the very high proportion of single mothers living in poverty and heavily reliant on a network of family and neighbors for childcare. This kept them in neighborhoods more prone to flooding in the years before the storm. It was also evident that despite evacuation warnings, African American women and children comprised the large majority of people left stranded in the Superdome and the Convention Centre without sufficient food, water and medical attention. They simply had no means to flee the city and no other place to go.131 When the racial and gendered aspects of vulnerability were added to the exposure of these groups, the disaster’s results took on even more epic proportions, both because minority status and limited resources often go hand in hand, and because of the inhibiting effects of entrenched racism on disaster response management.132 For example, Katrina exposed the transportation vulnerability experienced by the 28 percent of poverty-stricken New Orleans 128  Verchick, supra note 126 at 123. 129  Id. at 131. 130  Id. 131  Id. at 135. 132  Daniel A. Farber & Michael G. Faure, Introduction, in Disaster Law xvii (Daniel A. Farber & Michael G. Faure eds., 2010).

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households, many of whom had no access to a car in which to evacuate. Of these, 21,787 were black and 2,606 were white. Days later these communities were delivered to cities throughout the nation without being provided with the means to return home. According to Verchick this represents the biggest American involuntary migration since the Dust Bowl. As such, Katrina destroyed whole networks of families, churches and friends, leaving thousands with no homes, schools, jobs or plans.133 However, even here the gendered nature of vulnerability was exposed with women comprising 57 percent of the 180,000 people who lost their jobs. Finally, when the New Orleans housing authority closed four public housing projects post-Katrina, 88 percent of families living there were headed by women.134 4

Integrating Climate Change, Disaster Risk Reduction, Sustainable Development, Human Rights and Human Security for a Post-2015 World

When this catalog of climate disasters and the author’s proposed adoption of a Capability Approach to them are considered, the international negotiations in preparation for a post-2015 world become highly relevant. As mentioned above, they include the Sendai Framework for Disaster Risk Reduction 2015–2030,135 the 2015 Transforming Our World by 2030: A New Agenda for Global Action,136 Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda,137 the UN General Assembly Resolution 46/182, Strengthening of the coordination of humanitarian emergency assistance of the United Nations.138 4.1 The Sendai Framework The Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters (HFA)139 has been the principal internationally accepted instrument for building resilience to disasters and engaging in DRR, 133  Verchick, note 126 at 137. 134  Id. at 139. 135  See note 7. 136  See note 8. 137  See note 9. 138  See note 10. 139  United Nations International Strategy for Disaster Reduction, Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disaster (2005) available at www.unisdr.org/files/1037_hyogoframeworkforactionenglish.pdf (last visited 5 February 2015).

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and has been replaced by the Sendai Framework which was adopted by the General Assembly on 3 June 2015140 The Sendai Framework acknowledges that during the currency of the HFA 2005–2015 the economic losses from disasters were more than US$1.3 trillion and that many of these disasters were exacerbated by climate change. These disasters are increasing in frequency and intensity and significantly impeding progress towards sustainable development. The Sendai Framework states that unplanned and rapid urbanization, poor land management, weak institutional arrangements, non-risk-informed policies and a lack of regulation are all underlying disaster risk drivers.141 With regard to the ex post disaster phase, discussed in Chapter 5, the Sendai Framework calls for the recovery and reconstruction phase to be used to “Build Back Better”.142 The Sendai Framework requires the following goal to be pursued: Prevent new and reduce existing disaster risk through the implementation of integrated and inclusive economic, structural, legal, social, health, cultural, educational, environmental, technological, political and institutional measures that prevent and reduce hazard exposure and vulnerability to disaster, increase preparedness for response and recovery, and thus strengthen resilience.143 Seven global targets have been agreed for achieving this goal, which will be measured at the global level and complemented by appropriate indicators as well as national targets and indicators.144 Like the HFA, the Sendai Framework adopts Priorities for action which include:

• Priority 1: Understanding disaster risk. • Priority 2: Strengthening disaster risk governance to manage disaster risk. • Priority 3: Investing in disaster risk reduction for resilience. • Priority 4: Enhancing disaster preparedness for effective response and to “Build Back Better” in recovery, rehabilitation and reconstruction.145

140  A/RES/69/283 available at http://www.preventionweb.net/files/resolutions/N1516716.pdf (last visited 17 July 2015). 141  See note 8 Art. 6. 142  Id. Art. 6. 143  Id. Art. 18. 144  Id. Art. 19. 145  Id. Art. 20.

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4.2 Transforming Our World The HDR, discussed extensively above to elucidate the clear links between climate disasters, Capabilities and human development, provides the context for understanding the importance of Transforming Our World. Here, poverty eradication, promoting sustainable patterns of consumption and production, and protecting and managing the natural resource base of economic and social development are recognized as being intrinsic to sustainable development. The principles of justice, equity and inclusion are to benefit children, youth and future generations without discrimination of any kind. The principle of common but differentiated responsibilities is reaffirmed as a guiding principle. The sustainable development goals (SDGs) are accompanied by targets, for which indicators will be developed, which are action oriented, global in nature and universally applicable. These will seek to extend the vision of the Millennium Development Goals which have not yet been achieved. There are 17 SDGs each of which is accompanied by a number of Goals. In broad terms the SDGs relate to: ending poverty (SDG 1); ending hunger through food security, improved nutrition and sustainable agriculture (SDG 2) ensuring health (SDG 3), education (SDG 4), access to water and sanitation (SDG 6) and modern energy systems (SDG 7) as well as full productive employment and decent work for all (SDG 8). In addition, there is a requirement to take urgent action to combat climate change and it impacts (SDG 13) including through building resilient infrastructure (SDG 9), and making cities and human settlements safe, resilient and sustainable (SDG 11). From an environmental perspective, the oceans and marine resources must be conserved through sustainable utilization (SDG 14) while terrestrial ecosystems should be protected, restored and sustainably utilized (SDG 15) Forests must be sustainably managed, desertification combated, and land and biodiversity loss halted and reversed (SDG 15). Gender equality must be ensured (SDG 5) and inequalities within and among countries reduced (SDG 10), while access to justice and accountable and inclusive institutions at all levels must be provided (SDG 16). Peaceful and inclusive societies for sustainable development and sustainable consumption and production patterns must be ensured while strengthening implementation and the global partnership for sustainable development (SDG 17). Clearly, all of the SDGs are relevant to the notion of Climate Justice and Disaster Law.146

146  See further Nicholas A. Robinson, Cooperative Remedies for Risk: Legal Duties Under International Environmental Law to Anticipate and Foster Resilience in the Wake of Disaster, chapter 12, in this volume.

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4.3 Humanitarian Action and Climate Change In 2016, the UN Secretary-General will convene a global humanitarian summit to ensure that humanitarian action can respond effectively to the challenges of the future and to provide input into the post-2015 development agenda. This is because the landscape of humanitarian action has changed considerably in the twenty-five years since the UN General Assembly adopted Resolution 46/182, Strengthening of the coordination of humanitarian emergency assistance of the United Nations.147 Interrelated global trends, such as climate variability and climate change, demographic change, financial and energy sector pressures or changing geo-political factors have increased the demand for humanitarian action. In each of the last three years, international humanitarian organizations have provided assistance to over 100 million people. Between 1990 and 2025, the population in humanitarian focus countries is expected to nearly double, which, when combined with demographic changes like rapid urbanization, will put pressure on resources for humanitarian assistance and require changes to its provision. For example, it is estimated that over 3,000 NGOs were operating in the Haiti emergency. Yet, during 2006–10, only 3 percent of official humanitarian aid was spent on disaster prevention and preparedness.148 In response to the challenges to the sector, humanitarian agencies have sought to improve their services and maximize their impact on people in need. Despite the 2011 Inter-Agency Standing Committee’s149 Transformative Agenda there is a need to explore how to create a more global, effective and inclusive humanitarian system. The 2016 summit will focus on four key themes: humanitarian effectiveness; reducing vulnerability and managing risk (especially given the food crises in the Horn of Africa and the Sahel); transformation through innovation; and serving the needs of people in conflict.150 4.4 Human Rights and Climate Change Furthermore, in 2012, the UN Office of the High Commissioner of Human Rights (OHCHR) and the Centre for Social and Economic Rights released 147  Available at www.un.org/documents/ga/res/46/a46r182.htm (last visited 12 December 2014). 148  See World Humanitarian Summit 2016: Concept Note available at https://docs.unocha.org/ sites/dms/Documents/WHS%20Concept%20Note.pdf (last visited 2 October 2015). 149  The Inter-Agency Standing Committee (IASC) is an inter-agency forum which was established in June 1992 in response to United Nations General Assembly Resolution 46/182 for coordination, policy development and decision-making involving the key UN and nonUN humanitarian partners. General Assembly Resolution 48/57 affirmed its role as the primary mechanism for inter-agency coordination of humanitarian assistance; see www .humanitarianinfo.org/iasc/pageloader.aspx (last visited 12 December 2014). 150  See note 148.

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a report entitled Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda.151 The report stated that economic growth alone is not an adequate measure of development and that equality, the environment, human rights, governance and anti-corruption also matter. Consequently, it has been decided that human rights need to be integrated with all development goals, targets and indicators, and that poverty eradication is a human right imperative. Economic and social rights as well as democratic political rights and participation, access to justice and personal security are all crucial to the new development agenda. Special attention needs to be given to the most vulnerable, excluded, marginalized or disempowered groups, such as women and girls, migrants, persons with disabilities, indigenous peoples, children and youth, minorities and others. The report claims that human rights are intrinsic to the post-2015 development agenda.152 Since 2012, the Open Working Group on Sustainable Development Goals has embraced the need for integrating human rights.153 All of these issues are highly relevant to a Capability Approach to climate justice and the need for an inclusive and impartial practical reasoning process on all aspects of climate change. 4.5 Human Security and Climate Disasters In 2003, the Commission on Human Security released a report, co-authored by Sadako Ogata and Amartya Sen, entitled Human Security Now.154 It stated: Human security means protecting vital freedoms. It means protecting people from critical and pervasive threats and situations, building on their strengths and aspirations. It also means creating systems that give people the building blocks of survival, dignity and livelihood. Human security connects different types of freedoms—freedom from want, freedom from fear and freedom to take action on one’s own behalf.155 Relevantly for present purposes, the Report went on to say that the achievement of human security goes beyond the Millennium Development Goals and includes the need to protect: people embroiled in violent conflict; migrants; 151   Available at www.ohchr.org/documents/publications/whowillbeaccountable.pdf (last visited 12 December 2014). 152  Id. at 4. 153  See www.ohchr.org/EN/Issues/MDG/Pages/News.aspx (last visited 12 December 2014). 154   Available at http://www.unocha.org/humansecurity/chs/finalreport/Outlines/outline .pdf (last visited 23 February 2015). 155  Id. at 1.

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people in post-conflict situations; people living with economic insecurity and living in poverty; people suffering ill health; and peoples’ rights to basic education and public information.156 As Gemenne and co-authors state ‘[i]f climate change affects human suffering . . . then this human security dimension of climate change requires a long hard look from scholars and practitioners alike.’157 They go on to say that there is an urgent need for the disciplines of economics, political science, international relations, demography, development studies and anthropology to re-engage with the interface between climate change and human security. The authors draw attention to the fact that while climate change and human security studies have tended to focus on climate displaced persons (CDPs), conflict and risks to livelihoods, communities and cultures, related and new dimensions are emerging.158 These include the potential for climate change to pose threats to national security, critical infrastructure and other vulnerable key sectors, and to transform geopolitical landscapes.159 The notion of protecting human security so as to empower individuals and communities to develop, and indeed maintain, the Capabilities needed to make informed choices and act on their own behalf, dovetails seamlessly with the author’s adoption of a Capability Approach to climate disasters. 5 Conclusions As this chapter has demonstrated, climate disasters are destroying the Capabilities of humans in developed and developing economies as well as those of non-humans. In the post-2015 world, integrated responses at the International level will impose obligations on the Parties to deal with climate disasters in new and more effective ways.

156  Id. At 2–3. 157  Francois Gemenne, Jon Barnett, W. Neil Adger & Geoffrey D. Dabelko, Climate and Security: evidence, emerging risks and a new agenda 123 Climate Change 1 (2014) available at http://link.springer.com/article/10.1007%2Fs10584-014-1074-7 (last visited 23 February 2015). 158  Id. at 4. 159  Id. at 5.

CHAPTER 5

Resilient Incoherence—Seeking Common Language for Climate Change Adaptation, Disaster Risk Reduction, and Sustainable Development Anne Siders* 1 Introduction Climate change has been described as the world’s greatest threat,1 and it is, indeed, difficult to overstate the potential consequences of rapid and continued global change. As we attempt to prepare for or prevent likely harms, our efforts are complicated by the need to balance investment in our future against investment in current global challenges such as extreme poverty and natural disasters. We seek a world that is adaptive, risk sensitive, sustainable, and resilient, but even as we work towards those goals, we often struggle to articulate what they truly mean, which further complicates efforts to coordinate our actions across space and time. Climate change adaptation (CCA), disaster risk reduction (DRR), and sustainable development (SD) are inherently inter-related and inter-dependent fields, such that actions in one have consequences—harmful or beneficial—for the others.2 Coordinating the actions of these three fields could significantly increase the effectiveness of * Work for this chapter was supported by the David and Lucille Packard Foundation Stanford Graduate Fellowship, Hoover Institution, and Earthquakes and Megacities Initiative. The author would like to acknowledge the support of Mark Algee-Hewitt, Margaret Caldwell, Martin Fischer, David Fisher, Pamela Matson, Jacqueline Peel, and Ryan Siders, although all opinions and mistakes remain her own. 1  E.g., Obama: Climate Change is ‘greatest threat’, BBC, 3 Aug. 2015, http://www.bbc.co.uk/ news/world-us-canada-33764762. 2  See, e.g., Exec. Order No. 13677, 79 F.R. 187 (2014) (Climate-Resilient International Development); Intergovernmental Panel on Climate Change (IPCC), Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation: Special Report of the Intergovernmental Panel on Climate Change (C.B. Field, ed.; 2012) [hereinafter IPCC 2012 SREX]; Jorn Birkmann & Korina von Teichman, Integrating disaster risk reduction and climate change adaptation: Key challenges-scales, knowledge, and norms, 5 Sustainability Science 171 (2010); Lisa Schipper & Mark Pelling, Disaster Risk, Climate Change and International Development: Scope for, and Challenges to, Integration, 30 Disasters 19 (2006).

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our efforts to build a better future, and numerous practitioners and organizations have called for coherence to align the goals and implementing frameworks of the three fields at an international level.3 In 2015, the co-occurrence of the negotiations for the World Conference on Disaster Risk Reduction,4 Summit on Sustainable Development,5 and 21st United Nations Framework Convention on Climate Change (UNFCCC) Conference of Parties (COP 21)6 has made efforts to build coherence in to the post-2015 agendas particularly urgent. One factor that has complicated efforts to build coherence among CCA, DRR, and SD is the growing use of the term resilience. As resilience theory has emerged and positioned itself at the intersection of these three fields, their 3  E.g., Margareta Wahlstrom, Strengthening the Coherence Between DRR, Climate Change, and Sustainable Development, Key Note Address at the High Level Development Dialogue, 11 May 2015, Ulan Bator, Mongolia (2015), http://www.unisdr.org/archive/44595; The Royal Society, Taking Joint Action on Disasters, Development, and Climate Change, 3 Feb. 2015, https://royal society.org/~/media/policy/Publications/2015/02-03-2015-international-frameworkstatement-resilience.pdf; Asia-Pacific Input Document for the Post-2015 Framework for Disaster Risk Reduction (HFA2) (June 2014); Council of the European Union, Council Conclusions on a Transformative Post-2015 Agenda, General Affairs Council Meeting, Brussels, Belgium, 16 Dec 2014 (doc. 146311/14); Janus Heiner & Neils Keijzer, Post 2015: Setting Up a Coherence Accountability Framework (German Development Institute Briefing Paper 13/2014, 2014), available at https://www.die-gdi.de/uploads/media/BP_13.2014.pdf; United Nations Office for Disaster Risk Reduction, Coherence and Mutual Reinforcement Between a Post-2015 Framework for Disaster Risk Reduction, Sustainable Development Goals, and the Conference of Parties to the UNFCCC, April 2014, http://www.preventionweb.net/ documents/posthfa/Mutual_reinforcement_of_2015_Agendas_UNISDR.pdf; The Future We Want: Outcome Document of the Rio + 20 Conference of 2012, 27 July 2012, A/RES/66/288 (2012); Chair’s Summary: Fourth Session of the Global Platform for Disaster Risk Reduction, Geneva, Switzerland, 21–23 May 2013. 4  In March, 2015, the United Nations Office of Disaster Risk Reduction Strategy (UNISDR) and government of Japan hosted the Third World Conference on Disaster Risk Reduction (WCDRR) in Sendai, Miyaji, Japan to negotiate the Sendai Framework for Action on Disaster Risk Reduction for 2015–2030. Sendai Framework for Disaster Risk Reduction 2015–2030, A/ Conf.224/CRP.1, 18 March 2015 [hereinafter Sendai Framework]. 5  The United Nations General Assembly met for a Sustainable Development Summit from 25–27 September, 2015, in New York, NY, USA to adopt the Sustainable Development Goals. United Nations General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, A/70/L.1 (adopted 27 Sep 2015) [hereinafter 2030 Agenda for Sustainable Development]. 6  The 21st Conference of the State Parties (COP 21) to the United Nations Framework Convention on Climate Change (UNFCCC) will be held in Paris, France from 30 November to 11 December, 2015.

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international documents have begun to use the term with increasing frequency to describe their vision for a better future. However, each field has a distinct definition of resilience, and these different definitions lead to different priorities and even contradictory approaches to development and disaster recovery. As a result, although the use of a single term among all three fields appears to create a common vision, it actually masks the potential for conflict among the fields and the need for further conversations on our true goals. Other authors have previously critiqued resilience for its malleability and ambiguity,7 and this piece draws on those works to illustrate how use of resilience complicates and even frustrates efforts to build international coherence among CCA, DRR, and SD. The next section provides a review of the connections among CCA, DRR, and SD and the potential benefits that could result from greater coherence in their international guidelines. The second section introduces resilience, its origins, expansion into new fields, and diverse meanings. The third explores how these multiple meanings affect efforts to build coherence, and finally a few suggestions are offered on how greater coherence could be pursued in the future. Some practitioners have argued that too much focus on resilience definitions is an academic exercise with little practical utility, and it is tempting to dismiss concern over the different definitions as an exercise in semantics. However, the use of such vague terminology in international guideline documents and implementing frameworks has real and practical consequences for the practitioner communities. Moreover, the differences in definition are more than mere wording concerns: they reflect larger underlying differences in the priorities of each field that must be addressed to promote effective integration. 2

The Call for Coherence

CCA, DRR, and SD are inextricably linked, and a coherent approach is therefore desirable to promote mutual benefit and minimize potential contradictions and counter-productive implementation schemes. A coherent approach would need to align the core goals of the three fields, which are quite distinct. 7  See, e.g., Richard Klein, Robert Nicholls & Frank Thomalla, Resilience to Natural Hazards: How Useful is this Concept? (Potsdam Institute for Climate Impact Research, EVA Working Paper No. 9, DINAS-COAST Working Paper No. 14, 2004); Per Bodin & Bo Wiman, Resilience and Other Stability Concepts in Ecology: Notes on their Origin, Validity, and Usefulness, 11 ESS Bull. 33 (2004).

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DRR refers to the “concept and practice of reducing disaster risks through systematic efforts to analyse and manage the causal factors of disasters”,8 and the primary focus of the Sendai Framework for Disaster Risk Reduction, adopted in 2015 at the Third World Conference on Disaster Risk Reduction (WCDRR) in Sendai, Japan, is to reduce disaster risk and promote quick and efficient post-disaster recovery.9 CCA may be defined as either “Initiatives and measures to reduce the vulnerability of natural and human systems against actual or expected climate change effects”10 or the “process of adjustment to actual or expected climate and its effect”,11 and although the main objective of the 2015 UNFCCC COP 21 was to create a binding agreement on greenhouse gas emission reductions,12 parties also discussed methods for supporting and financing CCA in vulnerable countries. The most classic definition of SD is probably that of the 1987 World Commission on Environment and Development (“Brundtland Report”): “[development] meeting the needs of the present without compromising the ability of future generations to meet their own needs.”13 The 2015 United Nations Conference on Sustainable Development adopted 17 Sustainable Development Goals (SDGs) for 2015–2030 that focus primarily on poverty reduction, global health, gender equality, education, and sustainable use of land and marine resources.14 Although the core goals of the fields are distinct, the fields have evolved such that their missions are beginning to overlap (see Figure 1). A major focus of the Sendai Framework is to reduce “drivers” of global disaster risk such as

8  United Nations Office for Disaster Risk Reduction (UNISDR), 2009 UNISDR Terminology on Disaster Risk Reduction, (2009), 10, available at http://www.unisdr.org/we/inform/ terminology. 9  Sendai Framework, supra note 4. 10  Intergovernmental Panel on Climate Change (IPCC), Third Assessment Report: Working Group II: Impacts, Adaptation and Vulnerability, Annex B: Glossary of Terms, (James J. McCarthy, Osvaldo F. Canziani, Neil A. Leary, et al., eds., 2001) [hereinafter IPCC 2001 TAR Glossary]. 11   Intergovernmental Panel on Climate Change (IPCC), Climate Change 2014: Fifth Assessment Report, Working Group II: Impacts, Adaptation and Vulnerability, Annex II— Glossary (John Agard & E. Lisa Schipper, eds., IPCC, Geneva, Switzerland; 2014) [hereinafter IPCC 2014 AR5 Glossary]. 12  Organizing Committee of the 21st Conference of Parties to the UNFCCC, “COP 21 Main Issues”, http://www.cop21.gouv.fr/en/cop21-cmp11/cop21-main-issues (last accessed 16 May, 2015). 13  Report of the World Commission on Environment and Development: Our Common Future (Brundtland Report) (1987). 14  2030 Agenda for Sustainable Development, supra note 5.

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FIGURE 1

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Examples of how CCA, DRR, and SD may overlap in their areas of concern.

climate change, development, poverty, and inequality.15 This reflects a larger shift within the disaster management community away from immediate relief and post-disaster recovery and towards risk prevention:16 an increased recognition of the social components of vulnerability and a subsequent shift towards long-term investments in capacity and governance.17 As the DRR field works to address poverty as underlying risk factor, it begins to overlap 15  Sendai Framework, supra note 4. 16   As noted by Margareta Wahlstrom, United Nations Special Representative of the Secretary-General for Disaster Risk Reduction, in the foreword to the Sendai Framework, “the most significant shifts” between the 2005 Hyogo Framework and 2015 Sendai Framework include “a strong emphasis on disaster risk management as opposed to disaster management,” “the reduction of disaster risk as an expected outcome, a goal focused on preventing new risk,” and “strengthening resilience.” Sendai Framework, supra note 4, Foreword. 17  David Fidler, Disaster Relief and Governance After the Indian Ocean Tsunami: What Role for International Law?, 6 Melbourne J. Int’l L. 458, 467 (2005).

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with SD.18 Similarly, the CCA field has moved from implementing one-time adaptation “initiatives”19 to promoting the ongoing “process”20 of adaptation. This involves investment in adaptive capacity, governance, and long-term economic development to address socioeconomic drivers of vulnerability and in loss and damage compensation mechanisms when harms cannot be avoided.21 The increasing emphasis in the CCA and DRR communities on socioeconomic status, gender, and equity creates significant overlap with SD. Indeed, the emerging concept of adaptive capacity in CCA is sometimes interpreted in purely socioeconomic terms22 and incorporates issues such as wealth, education, equality, and good governance. Emphasis on adaptive capacity may thus make CCA scarcely distinguishable in practice from SD.23 This situation, in which the three fields have distinct core goals and yet substantial areas of overlap in practice, creates a challenging situation for practitioners. Practitioners—addressing an area of overlap with their fields’ core goals in mind—may, counterintuitively, find themselves working at odds. The tight interconnections among the problems being addressed and approaches to solving those challenges mean that actions taken in one field are likely to affect the others. There has been recent increased recognition of the interaction among climate change, disasters, and development needs, particularly with regard to economic costs as policy-makers seek to protect investments.24 Disasters (and disasters caused by climate-enhanced natural 18  See, e.g., Jessica Mercer, Disaster risk reduction or climate change adaptation: Are we reinventing the wheel?, 22 J. Int’l Devel. 257 (2010). 19  IPCC 2001 TAR Glossary, supra note 10. 20  IPCC 2014 AR5 Glossary, supra note 11. 21  See, e.g., Jennifer Morgan & David Waskow, A New Look at Climate Equity in the UNFCCC, 14 Climate Policy 17 (2014); Koko Warner & Sumaya Ahmed Zakieldeen, Loss and Damage Due to Climate Change: An Overview of the UNFCCC Negotiations, ECBI Background Papers (2011). 22  See, e.g., Barry Smit & Johanna Wandel, Adaptation, Adaptive Capacity, and Vulnerability, 16 Global Env’l Change 282 (2006). 23   For a discussion on emergence of adaptive capacity, see Frances Moore, “Doing Adaptation”: The Construction of Adaptive Capacity and its Function in the International Climate Negotiations, 5 St. Antony’s Int’l R. 66 (2010). 24  See, e.g., Exec Order, supra note 2 (noting “climate resilience” is needed to “protect the sustainability and long-term durability of U.S. development work”); Risky Business: The Economic Risks of Climate Change in the United States (2014); Rachel Kyte, Climate Change is a Challenge for Sustainable Development, 15 Jan. 2014, Gaidar Forum, http://www.worldbank.org/en/news/speech/2014/01/15/climate-change-is-challengefor-sustainable-development.

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hazards)25 may reduce or undo the benefits of economic development,26 while increased development frequently places greater infrastructure and population in harm’s way, increasing the potential severity of disasters.27 These interactions have been well-acknowledged, but there has been less overt discussion of the potential for our solutions—for CCA, DRR, and SD—to adversely affect one another. CCA and DRR may limit the potential for SD by limiting the means and locations of development, or by harming or limiting access to natural resources. SD, like traditional development, may place more infrastructure and population at risk, and all three may compete against one another for limited implementation resources. Theoretically, of course, CCA, DRR, and SD could all occur in a way that is mutually reinforcing: development could occur only in areas and in a manner that minimizes risk to both current and future (climate-related) hazards; DRR activities could address both short-term risk and long-term climate change impacts; and DRR and CCA could promote rather than diminish future development potential. All this is theoretically possible. In practice, practitioners often fail to consider the implications of their actions outside their fields of expertise and may, unwittingly, create counterproductive situations. To illustrate this point, consider two examples, drawn from real-life cases: – Developing Beach Community. Development of fishing and tourism industry along the coast has exposed people, homes, and livelihoods to damage from coastal storms, floods, and storm surge. A DRR project installs seawalls and flood defenses along the shore to reduce exposure. These seawalls, by design, prevent the natural shore-ward migration of the beach as sea levels rise and storms erode the coast. This interaction reduces beach width and eventually destroys the beach entirely.28 This harms both existing 25  Climate-enhanced hazards are those hazards likely to be affected by climate change: most often meteorological or hydrological such as floods, droughts, coastal storms, or heat waves. See, e.g., IPCC 2012 SREX, supra note 2. 26  Sendai Framework, supra note 4 at I(4) (“Disasters, many of which are exacerbated by climate change and increasing in frequency and intensity, significantly impede progress towards sustainable development.”). 27  See Tim Lenton, Anthony Footiit, Andrew Dlugolecki, Major Tipping Points in the Earth’s Climate System and Consequences for the Insurance Sector (World Wildlife Fund and Allianz SE, 2009). 28  See, e.g., Meg Caldwell & Craig Holt Segall, No Day at the Beach: Ecosystem Loss and Public Access Along the California Coast, 34 Ecology LQ 533 (2007); Orrin Pilkey & Howard Wright III, Seawalls versus Beaches, SI 4 J. Coastal Res. 41 (1988).

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fishing and tourism industries and future prospects for sustainable beachdependent eco-tourism.29 From a DRR perspective, the project is a success: the community is protected from floods. From a sustainable development or climate change adaptation perspective, obviously the project is less than ideal. – Coastal City. Government funds could be allocated to purchase land from homeowners located in coastal floodplains and turn acquired properties into a natural buffer zone to protect against future floods. The homes face no immediate threat, but the area is expected to be inundated by rising sea levels within a few decades. If the homes are not purchased, further development will likely occur in the region, exposing more people to future risks.30 If the properties are converted to a flood buffer, local government will lose local tax revenue. Funds allocated to purchase the homes could instead be invested in much-needed earthquake safety retrofits of local schools. The first scenario could be altered to achieve a win-win-win outcome. DRR practitioners could consider possible future economic consequences when evaluating potential DRR strategies. In this case, such consideration may have led them to address the flood threat with a living shoreline or managed retreat policy rather than seawalls, although living shorelines provide less certain protection31 and managed retreat would also limit development. The second scenario is more difficult, as any allocation of funds to address future flood threat reduces available funds for earthquake retrofits. However, on the tax front at least, the community could structure the buyout program with an incentive to homeowners who relocate within the same tax district; or the city could raise taxes for remaining residents in the area, although this may raise some equity concerns.32 Although not perfect solutions, these things could happen. In practice, what often does happen is exactly as described: decisions are made without understanding the effect on all three fields, and trade-offs are made among the three goals. There are several reasons why achieving theoreti29  See, e.g., Charles Fletcher, Robert A. Mullane, & Bruce Richmond, Beach Loss Along Armored Shorelines on Oahu, Hawaiian Islands, 13 J. Coastal Res. 209 (1997). 30  It is possible that the city could limit future development in the area even if the properties are not acquired, but success rates have been historically low. See, e.g., Anne Siders, Managed Coastal Retreat: A Legal Handbook On Shifting Development Away From Vulnerable Areas (2013), 103–28. 31  See Shannon Cunniff & Aaron Schwartz, Performance of Natural Infrastructure and Nature-Based Measures as Coastal Risk Reduction Features (Environmental Defense Fund, 2015). 32  Such as making coastal areas prohibitively expensive for low-income residents.

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cal alignment among the three fields is difficult.33 Conflict may result from a lack of awareness within the practitioner community. DRR practitioners may theoretically support CCA but lack the technical capacity to incorporate it in their work.34 SD practitioners may not acknowledge DRR as a component of their work. One reading of the definition of SD would allow only risk-sensitive development, but another reading would say that development in areas that are risk prone or may become risk prone in the future does not compromise the ability of future generations to meet their needs.35 Conflict may also arise due to opposing, but equally legitimate, views on how to prioritize resource allocation. Decision-makers may choose to prioritize immediate over long-term gains or decide that existing equity concerns are more important than long-term risk reduction. In New York City, for example, after Hurricane Sandy, a major utility company sought to raise rates to fund CCA and DRR measures for vulnerable service stations. Rate-payer citizen groups objected, and the ensuing legal case highlighted the tension between short-term costs and long-term gains in risk reduction and reliable service.36 Decision-makers in different circumstances are likely to arrive at different solutions, and, further complicating the situation, the consequences of these decisions are uncertain. DRR usually addresses relatively certain harm with an uncertain probability of occurrence, and therefore one may be relatively certain that actions taken to reduce risk will have benefits. It is only the timing that is unknown. CCA and SD face more “true uncertainty”37 as it is not certain whether actions will have benefit or not; actions may be even detrimental. A seawall built to withstand three meters of sea level rise may be a waste of resources if sea levels only increase by one meter. In international 33  See, e.g., Birkmann & von Teichman, supra note 2; Schipper & Pelling, supra note 2. 34  In discussions with DRR organizations working in South East Asia, practitioners consistently reported support for the idea of incorporating CCA but insisted they lacked sufficiently localized climate projections, certainty on impacts, or the technical capacity to incorporate CCA. As a result, in their current practices, they continue to omit future risk projections. 35  For a discussion on different interpretations of “needs” in sustainable development, see Frances Moore, Toppling the Tripod: Sustainable Development, Constructive Ambiguity, and the Environmental Challenge, 5 Consilience: J. Sust. Devel. 141 (2011). 36  See, e.g., Elizabeth B. Stein & Adam Peltz, New York’s Con Edison to Take New Measures Protecting Against the Effects of Climate Change, EDF Blog, Feb. 25, 2014, http://blogs.edf. org/energyexchange/2014/02/25/new-yorks-con-edison-ordered-to-take-new-measuresprotecting-against-the-effects-of-climate-change; Kenneth Lovett, Cuomo Tells New York Commission to Shut Down Con Ed Rate Hike Request, NY Daily News, Oct. 8, 2013, http://www .nydailynews.com/news/national/cuomo-shut-ed-rate-hike-request-article-1.1480098. 37  Frank Knight, Risk, Uncertainty, and Profit (1921).

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environmental law, the precautionary principle requires states to take action to prevent environmental degradation even if the scientific basis is uncertain. A similar approach to environmental risk would support investment in CCA and SD even under uncertainty.38 However, the principle provides less guidance on how to prioritize investment among levels of uncertainty. Should DRR efforts be prioritized because benefits are more certain? Should we invest in more, lower cost DRR activities that do not address CCA or SD (e.g., flood walls built to historic flood heights) or fewer, more expensive DRR activities that do (e.g., flood walls built to historic flood levels plus projected sea level rise)? How decision-makers answer these questions affects the prioritization of CCA, DRR, and SD projects in practice, despite their theoretical potential to coexist. This tension—all the could but is, all the potential for mutual benefit but reality of inefficiency—is exactly why so many policy makers and practitioners have called for greater coherence among CCA, DRR, and SD in international guidance documents, agreements, and frameworks.39 These calls, however, do not explicitly define coherence. According to Oxford Dictionaries, coherence is the quality of “being logical and consistent” or “forming a unified whole.”40 A close reading of the proposals for coherence in the post-2015 development agenda suggests coherence is understood as an effort to align the goals, standards of practice, implementation frameworks, and financing mechanisms of separate international legal regimes to promote synergies and eliminate inefficiency. In this understanding, coherence is the opposite of fragmentation— that legal phenomenon in which increased specialization and diversification of international instruments has both beneficial potential to spur action in niche areas41 and harmful potential to create contradictory regimes and undermine the stability of international relations.42 Usually, discussions of fragmentation 38  See Philippe Sands, Jacqueline Peel, Principles Of Environmental Law (Third Ed., 2012) 217; James E. Hickey Jr. & Venn R. Walker, Refining the Precautionary Principle in International Environmental Law, 14 Va. Envt’l L.J. 423 (1994). 39  See citations in fn. 3, supra. 40  “Coherence,” Oxford Dictionaries (3 ed. 2015, Oxford University Press), http://www .oxforddictionaries.com/definition/english/coherence. 41  For example, if climate change adaptation were further fragmented from the highly controversial negotiations surrounding climate change mitigation and greenhouse gas reduction, it is possible that agreement on CCA could be achieved more quickly. 42  See Gerhard Hafner, Risks Ensuing from Fragmentation of International Law, Official Records of the General Assembly, Fifty-Fifth Session, Supplement No. 10, A/55/10, 2000, Annex 326, 341–345 (2000). But see also Gerhard Hafner, Pros and Cons Ensuing from Fragmentation of International Law, 25 Mich. J. Int’l Law 849 (2004); Martti Koskenniemi

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refer to proliferation of binding obligations and legal tribunals and the difficulties that arise from contradictory decisions or overlapping jurisdictions,43 but fragmentation may also have significant consequences for non-binding international instruments by lessening their ability to shape norms and standards of behavior.44 Coherence is presented by proponents as a solution to these ills: the promise of rectifying past divisions in international agendas by aligning future efforts. Non-binding international instruments often influence behavior through the creation and shaping of norms and standards of behavior. Not all nonbinding instruments are intended to be normative, and some serve to catalyze action. However, to have a marked effect on the behavior of states or practitioner communities, non-binding instruments must be clear about the norms and actions they support. The clearer the norms are, and the broader and more thorough their adoption, the greater the effect of the instrument. Influence may be limited if the instrument is highly specialized or narrowly targeted at a small group of specialists.45 Influence may also be undermined if other instruments create competing or contradictory norms in a connected sphere. Coherence among specialized international instruments, such as those regarding CCA, DRR, and SD, offers the potential to align, strengthen, and broaden the influence of norms and standards of behavior. If international instruments developed by the CCA, DRR, and SD fields articulated a logical, consistent, unified vision for future action, the dissemination of this common

& Paivi Leino, Fragmentation of International Law? Postmodern Anxieties, 7 Leiden J. Int’l Law 553 (2002). 43  See, e.g., Mads Andenas, Reassertion and Transformation: From Fragmentation to Convergence in International Law, 46 Geo. J. Int’l L. 685 (2015); Herro van Asselt, Francesco Sindico, & Michael Mehling, Global Climate Change and the Fragmentation of International Law, 30 L. & Pol. 423 (2008); Int’l Law Comm’n report of the Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.702 (July 18, 2006) ( finalized by Martti Koskenniemi) [hereinafter ILC Report 2006]. 44  For a discussion of how non-binding instruments influence behavior, see Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Dinah Shelton, Ed., Oxford University Press, UK: 2000). 45  Fragmentation may involve: conflict of interpretations of general law, conflict between general and specific law, or conflict among specialized laws. Here I am primarily concerned with the latter, in so far as climate change, disaster risk management, and sustainable development may be considered specialized laws. See ILC Report 2006, supra note 43, at 30.

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vision to policy makers, practitioners, and academics in all three fields would spread the vision farther than any one field could achieve on its own; and the message would be reinforced for those practitioners who encountered it in multiple venues. Indeed, such “overlap” and reinforced messaging has been described as “necessary for integrated efforts” to achieve CCA, DRR, and SD goals.46 By increasing awareness and aligning goals, coherence among international CCA, DRR, and SD instruments could help to achieve the mutual benefits that are theoretically possible among the three fields. Coherence could also minimize further division of international resources by ensuring gains in one field do not reduce gains in another. International resources are a finite good.47 As the number of international goals, objectives, and instruments increases, “new and additional”48 resources are needed, or else existing funds must be further subdivided, undermining the ability of all efforts to succeed.49 The introduction of climate change financing raised significant concerns regarding additionality, as analysts and practitioners worry that state investments in climate funds will be accompanied by a matching reduction in investments in other international fields, such as DRR and SD.50 Aligning CCA, DRR, and SD would neither reduce the number of goals nor provide additional financing, but it would ensure that funds contributed to one field supported the others. At a minimum, coherence could 46  van Asselt et al., supra note 43, at 424. 47  Many states could, no doubt, (and arguably should) increase contributions. However, as a practical matter, the international appetite to provide personnel, financing, and support in kind is limited. See, Jean-Michel Severino & Olivier Ray, The End of ODA: Death and Rebirth of a Global Public Policy (Center for Global Development Working Paper No. 167, March 2009), available at http://www.cgdev.org/publication/ end-oda-death-and-rebirth-global-public-policy-working-paper-167. 48  E.g., United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc No. 102–38, 1771 U.N.T.S. 107 (1992), Art 4.3; 1997 Kyoto Protocol to the UN Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998), Art 11.2 [hereinafter UNFCCC]; Report of the Conference of the Parties on its Thirteenth Session, Held in Bali from 3 to 15 December 2007, Mar. 14, 2008, U.N. Doc FCCC/CP/2007/6/Add.1 (2008) (Bali Action Plan), Para. 1(e)i; Copenhagen Accord, Dec. 18, 2009, FCCC/CP/2009/L.7 (2009), Para. 8. 49  See Severino & Day, supra note 47. 50  See, e.g., Jessica Brown, Neil Bird, & Liane Schalatek, Climate finance additionality: Emerging definitions and their implications, (Overseas Development Institute, Climate Finance Policy Brief No. 2, June 2010); Athena Ballesteros & Remi Moncel, Additionality of Climate Finance (World Resources Institute, May 2010), available at http://www.un-ngls .org/IMG/pdf/WRI_-_Additionality_of_Climate_Finance.pdf.

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ensure the three fields do not work at cross purposes. This could involve, for example, the adoption of a “do no harm”51 principle and a requirement for practitioners to evaluate the potential effect of a proposed project on CCA, DRR, and SD goals. Coherence among the goals and implementing frameworks could improve messaging and implementation to promote co-benefits and minimize inefficiency, but despite these potential benefits, coherence has been difficult to achieve. In 1992 the UNFCCC noted that “special attention” would need to be paid to “areas prone to natural hazards.”52 In 2002, the United Nations Development Programme (UNDP) convened the Expert Group Meeting on Integrating Disaster Risk Reduction with Adaptation to Climate Change to discuss “A Climate Risk Management Approach to Disaster Recovery and Adaptation to Climate Change.”53 In 2004, the United Nations Office for Disaster Risk Reduction (UNISDR), UNDP, and World Meteorological Organization (WMO) established the Inter-Agency Working Group on Climate Change and Disaster Risk Reduction. In 2005, the Hyogo Framework for Action 2005–2015 recognized climate change as a driver of disaster risk that needed to be considered in DRR efforts.54 In fact, one of the Guiding Principles of the Hyogo Framework was to “promote the integration . . . [of] future climate change 51  A similar discussion has emerged regarding the proper balance of human rights and climate change mitigation efforts. See, e.g., Naomi Roht-Arriaza, First, Do No Harm: Human Rights and Efforts to Combat Climate Change, 38 Ga. J. Int’l & Comp. L. 593 (2009); David Brown, Frances Seymour, & Leo Peskett, How Do We Achieve REDD Co-Benefits and Avoid Doing Harm?, in Moving Ahead with redd: Issues, Options, and Implications (Arild Angelsen, ed., Center for International Forestry Research, Bogor, Indonesia: 2008), 107, 109. 52  UNFCCC, supra note 48, Art. 4.8(d). 53  UNDP Exert Group Meeting Integrating Disaster Risk Reduction with Adaptation to Climate Change, A Climate Risk Management Approach to Disaster Recovery and Adaptation to Climate Change, Havana, Cuba, June 19–21, 2002, available at http://ccsl .iccip.net/riskadaptationintegrated.pdf. 54  Disaster risk is “compounded by increasing vulnerabilities related to changing demographic, technological and socio-economic conditions, unplanned urbanization, development within high-risk zones, under-development, environmental degradation, climate variability, climate change, geological hazards, competition for scarce resources, and the impact of epidemics such as HIV/AIDs”. UNISDR, Hyogo Framework for Action 2005– 2015: Building the Resilience of Nations and Communities to Disasters, World Conference on Disaster Risk Reduction, 18–22 January 2005, Kobe, Hyogo, Japan, I(A)2 [hereinafter Hyogo Framework].

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into strategies for the reduction of disaster risk reduction and adaptation”,55 a sentiment echoed a decade later in the 2015 Sendai Framework.56 And yet, coherence remains elusive. There are many reasons why CCA, DRR, and SD are difficult to integrate.57 One trend that, if not directly responsible for a failure to develop coherence, is certainly not aiding the cause, is the emergence and prolific use of the term resilience in international CCA, DRR, and SD instruments. 3

Rise of Resilience

The term resilience is today so prolific it almost needs no introduction.58 As an illustration of its growth in use, consider the academic realm: a search of Web of Science finds just 482 papers with resilience as a topic published between 1900 and 1969; this number grows to 13,444 between 1970 and 1999 and 108,194 in 2000–2015.59 This means the rate of academic articles being published on resilience has grown an average of 13% from year to year from 1900 to 2015. This exceeds the estimated 3%–9% annual increase in general academic output during the same time period60 and means that, even against a back55  Id., at III(B)4(i)c. 56  Sendai Framework, supra note 4, at 19(n) (Guiding Principles). 57  See, e.g., William Solecki, Robin Leichenko & Karen O’Brien, Climate Change Adaptation Strategies and Disaster Risk Reduction in Cities: Connections, Contentions, and Synergies, 3 Current Opinion Env’l Sust. 135 (2011); Birkmann & von Teichman, supra note 2; Schipper & Pelling, supra note 2; Barry Smit & Olga Pilifosova, Adaptation to Climate Change in the Context of Sustainable Development and Equity, 8 Sust. Dev. 9 (2003). 58  See, e.g., Moser, S.C., Resilience in the Face of Global Environmental Change, Community and Regional Resilience Initiative (CARRI) Research Report 2 (CARRI, 2008); Walker, J., Cooper, M., Genealogies of Resilience: From Systems Ecology to the Political Economy of Crisis Adaptation, 42 Secur. Dialogue 143 (2011). For a discussion on the origins and early development of the term, see D.E. Alexander, Resilience and Disaster Risk Reduction: An Etymological Journey, 13 Nat. Hazards Earth Syst. Sci. 2707 (2013). 59  A basic search of “Web of Science” for the term “resilience” as a topic in all databases was carried out on 11 Aug., 2015. Notably, in the 1900–1969 search, most paper titles referred to ecological, medical, or mechanical resilience. Some literally referred to the bouncing back properties of elastics. 60  See Lutz Bornmann & Ruediger Mutz, Growth rates of modern science: A bibliometric analysis based on the number of publications and cited references, J. Ass’n Int’l Sci. & Tech. (2014), DOI: 10.1002/asi.23329.

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ground of increasing scientific publication rates, the field of resilience has grown a hundredfold. Resilience has its modern origins in mechanics,61 disaster recovery,62 and psychology,63 though it is perhaps most well-known for its use by C.S. Holling in his landmark 1973 paper on the stability of ecological systems,64 and the term has since spread to diverse areas of study including social-ecological systems theory65 and engineering66 as well as DRR,67 climate change,68 and development.69 This increased use of resilience is reflected in international documents in CCA, DRR, and SD fields. In ten climate change, disaster risk reduction, and development documents negotiated between 1972 and 2015, use of the terms “resilience” or “resilient” increases from 0 or 1 references in the 1990s to 5–20 in the 2000s and peaks at 69 references in the 2015 Sendai Framework (see Figure 2). Broad and increasing use of the term resilience across the three fields might suggest that, at an international level at least, the three fields are coherent and are articulating a common vision of resilience. However, accompanying the prolific use of the term is a proliferation in the number of definitions 61  See Alexander, supra note 58, at 2710 (citing W.J.M. Rankine, A Manual of Applied Mechanics [Charles Griffin and Co., London: 1867]). 62  Id., at 2709 (citing R. Bell, Eminent Literary and Scientific Men, in English Poets, Dionysius Lardner’s Cabinet of Biography series [Vol. 2, Longman, London: 1839]). 63  See, e.g., Dante Ciccheti & Norman Garmezy, Prospects and Promises in the Study of Resilience, 5 Devel. Psychopathology 497 (1993); see also Siambabala Bernard Manyena, The Concept of Resilience Revisited, 30 Disasters 433 (2006) (describing the early research of Garmezy, Werner, and Mith on resilience in psychology and psychiatry in the 1940s). 64  Crawford Stanley Holling, Resilience and stability of ecological systems. 4 Ann. Review Ecol. Syst. 1–23 (1973). 65  See Carl Folke, Resilience: The Emergence of a Perspective for Social-Ecological Systems Analyses, 16 Global Env. Change 253 (2006). 66  See Alexander, supra note 58; Per Bodin & Bo Wiman, Resilience and Other Stability Concepts in Ecology: Notes on their Origin, Validity, and Usefulness, 11 ESS Bull. 33 (2004). 67  See, e.g., Paulina Aldunce, Ruth Beilin, Stuart Mark Howden, & John Handmer, Resilience for Disaster Risk Management in a Changing Climate: Practitioner’s Frames and Practices, 30 Global Env. Change 1 (2015); United Nations Office for Disaster Risk Reduction (UNISDR), “2009 UNISDR Terminology on Disaster Risk Reduction”, Geneva, May 2009, http:/www.unisdr.org/we/inform/terminology. 68  See, e.g., IPCC 2001 TAR Glossary, supra note 10. 69  See, e.g., World Bank, Climate Resilient Cities: A Primer on Reducing Vulnerabilities to Climate Change Impacts and Strengthening Disaster Risk Management in East Asian Cities (World Bank, Sustainable Development East Asia and Pacific Region, 2008).

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Use of the term resilience has grown more common in international documents in the CCA, DRR, and SD fields.

associated with it, and as the number of definitions increases, general consensus on the meaning of the term dissipates. CCA, DRR, and SD communities speak different languages.70 Drawing on diverse academic and practitioner roots and traditions, they have developed independent lexicons in which they sometimes use different terms to refer to the same concept or, even more confusingly, use the same term to refer to different concepts.71 For this reason, resilience as a concept has been criticized for being “abstract and malleable in nature”,72 for being manipulated to serve policy aims,73 and for being

70  See, e.g., E. Lisa Schipper, Meeting at the Crossroads? Exploring the Linkages between Climate Change Adaptation and Disaster Risk Reduction, 1 Climate Devel. 16 (2009). 71  Consider, for example, the different meanings attached to the terms “exposure,” “vulnerability,” “sensitivity,” and “risk.” 72  Aldunce et al., supra note 67, at 2. 73  See, e.g., Walker & Cooper, supra note 58; Donald Nelson, W. Neil Adger, & Katrina Brown, Adaptation to Environmental Change: Contributions of a Resilience Framework, 32 Ann. Rev. Environ. Rev. 395 (2007).

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ambiguous and lacking clarity,74 particularly in how it should be applied in practice.75 In its early use—in mechanics, psychology, and ecology—resilience referred to an ability to “bounce back” after a shock, in keeping with its derivation from the Latin resilientia, to avoid,76 or resile, meaning “bounce”.77 This meaning is retained in the Oxford English Dictionary, which defines resilience as (1) “[t]he action or an act of rebounding or springing back” or (2) “[e]lasticity; the power of resuming an original shape or position after compression, bending, etc.”78 In its purest mechanical sense, the resilience of a material is its ability to store strain energy under stress without being deformed or broken, but the term is increasingly used as a metaphor to describe environmental or social systems that withstand shock and return to their original states.79 This definition of resilience as “bouncing back” has been substantially retained by DRR practitioners. Traditionally, DRR resilience focused on recovery after a crisis and was measured as either the amount of damage that could be endured without changing the system80 or the rate of return to baseline pre-shock conditions.81 A 2015 analysis of DRR practitioners’ concept of resilience emphasized the ability to “bounce back” to pre-disaster 74  See Aditya V. Bahadur, Maggie Ibrahim, & Thomas Tanner, The Resilience Renaissance? Unpacking of Resilience for Tackling Climate Change and Disasters Strengthening Climate Resilience (Institute of Development Studies, Brighton, Climate Resilience Discussion Paper 1, 2010); Susan Cutter, Lindsey Barnes, Melissa Berry, et al., A Place-Based Model for Understanding Community Resilience to Natural Disasters, 18 Global Env. Change—Hum. Policy Dimens. 598 (2008). 75  See Riyanti Djalante & Frank Thomalla, Community Resilience to Natural Hazards and Climate Change: A Review of Definitions and Operational Frameworks, 3 Asian J. Environ. Disaster Manag. 339 (2011); Moser, supra note 58; Richard Klein, Robert Nicholls & Frank Thomalla, Resilience to Natural Hazards: How Useful is this Concept? (Potsdam Institute for Climate Impact Research, EVA Working Paper No. 9, DINAS-COAST Working Paper No. 14, 2004). 76  “Resilience,” Etymology, Oxford English Dictionary (2015). 77  Alexander, supra note 58, at 2708. 78  OED, supra note 76. 79  Klein et al., supra note 75, at 3. 80  See, e.g., Denis Mileti, Disaster by Design: A Reassessment Of Natural Hazards in the United States (1999); Peter Timmerman, Vulnerability, Resilience and the Collapse of Society (1981). 81   C.S. Holling & Brian Walker, Resilience Defined. Entry Prepared for the Internet Encyclopedia of Ecological Economics, International Society For Ecological Economics (2003), isecoeco.org/pdf/resilience.pdf (last accessed 13 Aug. 2015). This type of resilience

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conditions.82 This concept of bouncing back places emphasis on the stability of the system post-disaster, as demonstrated by the Sendai Framework’s definition of resilience: The ability of a system, community or society exposed to hazards to resist, absorb, accommodate to and recover from the effects of a hazard in a timely and efficient manner, including through the preservation and restoration of its essential basic structures and functions.83 (emphasis added) Notably, the Sendai Framework places even greater emphasis on stability than the Hyogo Framework did in 2005 when it defined resilience as: The capacity of a system, community, or society potentially exposed to hazards to adapt, by resisting or changing in order to reach and maintain an acceptable level of functioning and structure. This is determined by the degree to which the social system is capable of organizing itself to increase this capacity for learning from past disasters for better future protection and to improve risk reduction measures.84 (emphasis added) This definition of resilience as the “capacity of a system . . . to adapt” is very similar to the definition of adaptive capacity in the Intergovernmental Panel on Climate Change (IPCC)’s 2001 Third Assessment Report,85 which raises questions about how resilience and adaptive capacity are distinct.86 The UNISDR may have chosen to emphasize stability and return to pre-disaster conditions

is sometimes called “Engineer’s resilience” and emphasizes the ability to quickly recover from a shock or disaster. 82  Aldunce et al., supra note 67, at 3; see also Richard Klein, Robert Nicholls, & Frank Thomalla, Resilience to Natural Hazards: How Useful is the Concept? 5 Environmental Hazards 35 (2003). 83  Sendai Framework, supra note 4, fn. 2 (citing United Nations Office for Disaster Risk Reduction (UNISDR), “2009 UNISDR Terminology on Disaster Risk Reduction”, Geneva, May 2009, http://www.unisdr.org/we/inform/terminology). 84  Hyogo Framework, supra note 54, fn. 7 (citing “UNISDR Geneva 2004”). 85  The IPCC Third Assessment Report defines “adaptive capacity” as the “potential of a system to adapt to . . . climatic stimuli or their effects or impacts.” IPCC 2001 TAR Glossary, supra note 10. 86  See Klein et al., supra note 7 (arguing that resilience should be re-defined to discuss only recovery to baseline and adaptive capacity should be used as the umbrella term to describe the ability of a system to change and prepare).

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in its 2009 definition of resilience in an attempt to clarify the terms. However, this emphasis may be contrary to CCA’s emphasis on change. After all, stability may be, in some cases, detrimental.87 Maintaining or returning to the status quo, when the status quo is socially inequitable, unjust, or overly exposed to hazards, is not beneficial: Resilience, per se, is not necessarily a good thing. Undesirable system configurations (e.g. Stalin’s regime, collapsed fish stocks) can be very resilient, and they can have high adaptive capacity in the sense of reconfiguring to retain the same controls on function.88 Rather than return to baseline, or “bouncing back,” a CCA concept of resilience would emphasize moving away from baseline—“bouncing forward.”89 We can see this shift in the conception of resilience as “bounce back” to “bounce forward” in the climate change field by comparing the IPCC’s 2001 definition of resilience (the “[a]mount of change a system can undergo without changing state”)90 with its 2014 definition: The capacity of social, economic, or environmental systems to cope with a hazardous event or trend or disturbance, by responding or reorganizing in ways that maintain their essential function, identity, and structure, while also maintaining the capacity for adaptation, learning, and transformation.91 (emphasis added) The word transformation is particularly important here, as it is exactly the opposite of a system that returns to stable pre-shock condition. 87  E.g., W. Neil Adger, Suraje Dessai, Marisa Goulden, et al., Are there Social Limits to Adaptation to Climate Change? 93 Climatic Change 335 (2009). Resilience as a concept is also sometimes criticized for placing too much emphasis and responsibility on the individual (rather than the state or governance system). Daniel Esser, A Scalar Critique of Resilience: Global Discourse, National Policies, and Local Practices, Presentation at the Annual Meeting of the American Association of Geographers, Chicago, IL, 21–25 April 2015. 88  Holling & Walker, supra note 81. 89  Bernard Manyena, Geoff O’Brien, Phil O’Keefe & Joanne Rose, Disaster Resilience: A Bounce Back or Bounce Forward Ability?, 16 Local Env.: Int’l J. Justice & Sust. 417 (2011). And yet, when this concept was introduced at a panel in the Sendai WCDRR, the session chair hailed it as a novel concept, further illustrating the different definitions of the two fields. 90  IPCC 2001 TAR Glossary, supra note 10. 91  IPCC 2014 AR5 Glossary, supra note 11 (citing Arctic Council, 2013).

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If we understand resilience as “building forward” rather than “bouncing back”, we still have a difficult time settling on a definition. Resilience as “building forward” is variously described as a degree of self-organization,92 capacity for learning,93 an ability to “survive, adapt, and grow,”94 or even as being synonymous with sustainability.95 According to Holling & Walker, “A resilient socio-ecological system is synonymous with a region that is ecologically, economically, and socially sustainable.”96 Notably, the 2030 Agenda for Sustainable Development, despite using the terms resilience and resilient 18 times in a 29 page document, does not define the concept.97 The authors apply resilience mainly to infrastructure and human settlements and once refer to “resilience to disasters,”98 suggesting they may understand resilience as prevention or recovery after a disaster. However, elsewhere the document encourages communities to build “resilience and adaptive capacity”, suggesting the authors may see resilience as a transformative concept leading to change.99 (Although, as noted above, if resilience and adaptive capacity are both understood as the ability to change, then the phrase “resilience and adaptive capacity” is redundant.) Without a clear, single definition of resilience, even within this one document, it is uncertain how practitioners and policy-makers should act, and this ambiguity continues to hinder coherence among CCA, DRR, and SD. 4

Incoherent Resilience

Ambiguity has potential benefits. Politicians and diplomats often build consensus around sensitive issues by deliberately using ambiguous language.

92  See, e.g., Carl Folke, Steve Carpenter, Thomas Elmqvist, et al., Resilience and Sustainable Development: Building Adaptive Capacity in a World of Transformations, 31 AMBIO 437 (2002). 93  See, e.g., id.; Klein et al., supra note 82. 94  See, e.g., Center for Resilience at the Ohio State University, What is Resilience, http://www .resilience.osu.edu/CF-site/concepts.htm (last accessed 29 April 2015). 95  Holling & Walker, supra note 81; see also Michael Common & Charles Perrings, Towards an Ecological Economics of Sustainability, 6 Ecological Econ. 7, 28 (1992). 96  Holling & Walker, supra note 81. 97  2030 Agenda for Sustainable Development, supra note 5. 98  Id. at ¶ 11(b). 99  Id. at ¶ 13(1).

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In the 1970s Henry Kissinger dubbed this practice “constructive ambiguity.”100 Ambiguity allows each party to read its own interpretation and allows progress on other, less controversial points to continue. If the issue is relatively minor, ambiguity allows it to be dismissed or delayed to a later stage of negotiations. Sometimes, by removing the discussion to a later and less public stage, and thereby lowering the stakes of the discussions, the ambiguous language can be clarified.101 Ambiguous language allows some decisions to be made during implementation on a case-by-case basis rather than establishing a standardized rule. But, if ambiguous language is used to describe a central concept, or if case-by-case decision-making is costly, then ambiguity only delays or prohibits difficult discussions and tough political choices. In places like the United States, where climate change is still a controversial topic,102 use of resilience may allow politicians to support measures to address the harms of climate change without obligating them to support greenhouse gas emission reduction.103 In the highly charged 2015 negotiations on CCA, DRR, and SD, resilience may play a similar role by allowing diplomats to agree to a high level vision in early DRR (negotiated in March) and SD (September) negotiations without limiting their ability to meet uncertain CCA obligations (December). As one WCDRR delegate in Sendai noted: “If this was being held after the SDGs and the climate COP, instead of beforehand, it would be so much easier.”104 Use of ambiguous and general terms such as resilience may ease such concerns. An ambiguous, general concept of resilience therefore may be beneficial in garnering high level political support, but during implementation it fails to guide practitioners and decision-makers. As a theory, constructive 100  See, e.g., Moore, supra note 35; Itay Fischhendler, When Ambiguity in Treaty Design Becomes Destructive: A Study of Transboundary Water, 8 Global Env. Politics 111 (2008). 101  See Fischhendler, supra note 101, at 117 (Table 1 Indicators of How Ambiguity Becomes Destructive). 102  See, e.g., Sondre Batstrand, More than Markets: A Comparative Study of Nine Conservative Parties on Climate Change, 43 Politics & Policy 538 (2015); Jean-Daniel Collomb, The Ideology of Climate Change Denial in the United States, 9 Eu. J. Am. Stu. 5 (2014). 103  Consider the Preparedness and Risk management for Extreme weather Patterns Assuring Resilience and Effectiveness (PREPARE) Act, introduced to the House of Representatives by a bipartisan group in July 2015. Although its purpose is to “help communities plan for future extreme weather-related events” and it directly refers to the U.S. Global Change Research program, it never mentions “climate change” but does use the term “resilience” 40 times. United States House Rep. PREPARE Act. 114th Cong. 1st sess. H.R. 3190 (2015). 104  WCDRR Highlights: Tuesday, 17 March 2015, 26 Earth Negotiations Bulletin No 14 (18 March 2015).

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ambiguity is premised on the assumption that ambiguous language will be clarified either at a later stage of negotiations or during implementation. However, in CCA, DRR, and SD, no common definition of resilience is ever articulated, so each field continues to define resilience for itself and practitioners continue to implement their own understandings of the term. Consider this conversation with a DRR practitioner at the Sendai WCDRR, one repeated along similar lines with many practitioners in CCA, DRR, and SD: Author: What do you think about this “climate resilience?”105 Respondent: What the [] does that mean? A: Well, what does it mean to you? R: [Laughs] Nothing. It sounds fancy, but it doesn’t mean anything. Everyone runs around saying “resilient” this and that but it doesn’t mean anything. It’s just another catch-phrase. A: US AID defines it as “development that can withstand current variability and future climate change.”106 R: Eh. That’s just DRR. This is either a very encouraging conversation, in which we leave convinced that the practitioner has already whole-heartedly integrated CCA into her DRR practice, such that the term climate resilience is an unnecessary redundancy, or it is a very discouraging conversation, in which we leave realizing that use of the term climate resilience (not to mention the more general term of resilience) has failed to convey any insight to the practitioner about how she might alter her practice to better incorporate CCA and SD. As CCA, DRR, and SD professionals continue to implement their own understandings of resilience, they further the potential to engage in activities that counter-act one another. This potential can be illustrated with an example drawn from real-life circumstances: Coastal Metropolis. After a major hurricane, all actors agree to make building resilience a priority. – Organization A, defining resilience as swift recovery to pre-disaster conditions, works to re-build damaged homes exactly where and how they were before the storm. This reduces expenses and quickly returns people to 105  See Exec Order, supra note 2. 106  U.S. Agency for International Development (USAID), Climate-Resilient Development: A Framework for Understanding and Addressing Climate Change (2014), 2.

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their homes and livelihoods. However, it means people and homes are still exposed to future hurricanes.107 – Organization B, defining resilience as “bouncing forward” to prevent future harm, establishes a buyout program to acquire damaged properties and relocate owners to safer areas. This takes more time, is more expensive108—as the damage to each home must be assessed and a relocation site identified—and in the meantime residents are unable to return to their homes and livelihoods, harming economic recovery.109 – Organization C, defining resilience as speed of recovery, and anxious to aid the city’s economic recovery, lobbies the environmental agency to reduce environmental impact assessment requirements to allow local ports and transport facilities to re-build more quickly.110 As a result, several local dune systems are damaged during rebuilding, which reduces the ability of the dune systems to protect the community from future storms and floods. 107  For example, the non-profit Make It Right is rebuilding 150 “sustainable homes” in New Orleans’ Lower 9th Ward: “the neighborhood most devastated by Hurricane Katrina.” Make It Right, “New Orleans,” (last visited 16 Oct. 2015) http://makeitright.org/where-we-work/ new-orleans. 108  For example, to encourage participation, the New York state post-Hurricane Sandy buyout program offered up to 115% of the pre-Sandy market value of acquired homes, which substantially raised the cost of the program. New York State Home and Community Renewal: Office of Community Renewal, State of New York Action Plan for Community Development Block Grant Program Disaster Recovery, Federal Register Docket No. FR-5696-N-01 (April 2013). Initial buyout offers took a year to complete. Judy Randall, Sandy buy-out offers in Staten Island’s Oakwood Beach are ‘on the money’, SI Live, Sep. 13, 2013, http://www.silive.com/news/index.ssf/2013/09/staten_islands_fox_beach_sandy.html. 109  For example, in Grand Forks, North Dakota, and East Grand Forks, Minnesota, following a 1996 Red River flood, both cities implemented managed retreat buyout programs, but it was difficult for many homeowners to find alternate housing in the metropolitan area, and both cities suffered significant population and economic loss. See Siders, supra note 30, at 115. 110  For example, following Hurricane Katrina, the Council for Environmental Quality used its authority under the National Environmental Protection Act (NEPA) to issue “alternate arrangements” that allowed some federal actions to be taken without environmental impact assessments (EIAs). Horst G. Greczmiel, Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA, Sep. 8, 2005, available at http://energy.gov/ sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-EmergencyGuidance .pdf. The proposed Louisiana Katrina Reconstruction Act, S. 1765, 109th Congress (2005), would have allowed the President or a recovery commission to deem projects in compliance with all NEPA requirements without an EIA. Linda Luther, NEPA and Hurricane Response, Recovery, and Rebuilding Efforts, Congressional Research Service (Mar. 24, 2006), 7–8.

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Which organization has successfully increased resilience? Organizations A and B have likely made one another’s programs less effective, as occurred in post-Hurricane Sandy New York City when New York State attempted to implement a relocation program111 while New York City implemented a rebuild-inplace program,112 and the simultaneous existence of both programs caused confusion in the public mind and delays in implementation.113 Organization C has inadvertently placed homes re-built by Organization A at even greater risk from future hurricanes and complicated efforts by Organization B to build a natural buffer. Each organization achieved its own objective of building resilience. Unfortunately, the overall result for the community is unlikely to be seen as resilient by any participant. The counter-productive actions described above could be overcome if the organizations agreed on a common vision and a common goal: if they were, in short, coherent. Use of the term resilience provides the outward appearance of coherence, but in fact it simply masks the underlying issues and prevents practitioners and decision-makers from having difficult discussions about the ultimate goal of CCA, DRR, and SD. Did the decision-maker in our hypothetical coastal megacity understand that the three organizations might have different aims? Did she perhaps have her own, fourth, definition and vision for the city? Simply using the term resilience in all three fields, while allowing practitioners to retain their independent definitions of the term, does nothing

111  Governor Andrew M. Cuomo, 2013 State Of The State Address: New York Rising (Jan. 9, 2013), 224–25. 112  Dana Rubinstein, Bloomberg launches a post-hurricane rebuilding effort, acquisition option included, Capital New York, June 3, 2013; PlaNYC: A Stronger, More Resilient New York (2013). 113  See Anne Siders, Anatomy of a Buyout, Vermont Law School 16th Annual Conference on Litigating Takings Challenge to Land Use and Environmental Regulations, Nov. 22, 2013, New York University School of Law, New York. New York City offered its own post-Sandy acquisition program but sold acquired properties to developers. It limited New York State’s buyout program to most vulnerable coastal zones because the City was concerned about retaining space for housing development. See Matthew Schuerman, Cuomo Offers Sandy Homeowners Less Money in Buyout Program, WNYC News, April 18, 2013, http:// www.wnyc.org/story/287184-new-york-state-restricts-sandy-buyout-offer. A year after Sandy, with only one homeowner participating in the City program, New York State took over administration of both programs. Staten Island Advance Editorial, Sorting out Sandy responsibilities: State, city agree on buyout, rebuilding duties, SI Live, Oct. 20, 2013, http:// www.silive.com/opinion/editorials/index.ssf/2013/10/sorting_out_sandy_responsibili .html.

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to promote coherence and may even be detrimental by masking the need for further conversation. 5

Defining Coherence

As our world attempts to handle the challenges of natural hazards, anthropogenic climate change, and poverty, all while avoiding the rapacious resource consumption of our forefathers, we struggle to articulate the exact nature of our ultimate goal. We search for words and even concepts to describe a future world we sometimes find difficult even to imagine. It is hardly surprising that we grasp at a term like resilience and use its comforting ambiguity and malleability to describe a range of future goals. However, when crafting our agenda for the coming decades—our action plan and call to arms— we must choose language that is precise as well as galvanizing if we are to provide direction and guidance for the generations of practitioners who will attempt to implement our plan and achieve our vision. Articulating a coherent—logical, consistent, uniform—vision across the CCA, DRR, and SD international platforms would make substantial progress. Simply using the word resilience in all three, however, is not sufficient. One approach would be to provide resilience with a clearer, agreed upon definition. Klein et al. made a useful proposal to return resilience to its narrow, original definition of maintaining stability by “bouncing back” to preshock conditions, and to use adaptive capacity, or another term, to refer to the broader ability of a system to self-organize, learn, and embrace change to limit future harms.114 Another option would be to abandon resilience, using it only when ambiguity is appropriate and desirable, and to use more precise language in guidance documents and frameworks to specify the intended goals. It will likely be difficult for international delegates to agree upon the intended goals of CCA, DRR, and SD. Instead, the 2015 and subsequent negotiations should establish a framework that can support further discussions on these topics in a less politicized arena. This could include the creation of an inter-agency, cross-field working group—similar to the Inter-Agency and Expert Group on Sustainable Development Indicators115—to discuss priorities, identify potential areas of conflict, and issue guidance to practitioners and decision-makers across the three fields. Alternatively or additionally, it could 114  See Klein et al., supra note 7. 115  United Nations Department of Economic and Social Affairs, “Inter-Agency Expert Group on SDG Indicators,” (last visited 16 Oct. 2015), http://unstats.un.org/sdgs/iaeg-sdgs/.

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involve the appointment of a commission, such as the World Commission on Environment and Development, tasked with identifying common goals, areas of diversion, and potential for integration among CCA, DRR, and SD as well as recommending actions to align the international frameworks and finance mechanisms. A cross-field working group could also be tasked with developing common indicators for CCA, DRR, and SD. Using common indicators among the three fields would make potential conflicts and trade-offs even clearer, and it may suggest ways in which programs could be modified to minimize problems. This is a difficult challenge. Identifying suitable indicators within each of the three fields—let alone across them—is a controversial and difficult problem, in part because the end goals have been only loosely defined.116 Significant research and work are on-going in this area and should receive international support to promote true coherence in the post-2015 implementation. The WCDRR took a useful step in this direction by calling on UNISDR to support the development of coherent cross-platform indicators, and CCA and SD fields should follow this example.117 Cross-field coherence is likely to take time to achieve. In the meantime, at a minimum, international bodies should provide their field with additional guidance on how to promote coherence and integration with the others. This should also include some reflection on what, exactly, distinguishes CCA, DRR, and SD from one another. Rather than focus on what the three have in common, an effort to articulate what makes them unique may help coordinate and promote a more coherent approach to development in the coming decades. At a broader level, practitioners, policy-makers, and academics at all levels, we need to be honest with ourselves and transparent with others on our hopes for the future.

116  See, e.g., Climate-Eval, Good Practice Study on Principles for Indicator Development, Selection, and Use in Climate Change Adaptation Monitoring and Evaluation (2015). 117  Sendai Framework, supra note 7, at VI(48)c.

CHAPTER 6

Disastrous Adaptation Cinnamon P. Carlarne 1

The State of the International Climate Change Regime in the Lead up to Paris

For more than two decades, the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) has struggled to develop an effective and inclusive framework for addressing global climate change. Regardless of the extent of mitigation efforts that the parties to the treaty commit to over the next decade, some level of climate change is inevitable. Moving forward, the primary way to minimize the negative impacts that climate change will have on people and ecosystems is to facilitate efforts to adapt to climate change. As a result, policy makers at every level of governance, as well as various international, regional, and local actors, are engaging in adaptation planning and implementation. A core part of adaptation planning includes efforts to identify and minimize the potential negative effects of slow- and sudden-onset climate-related disasters. At the intersection of climate change adaptation (CCA) and disaster risk reduction (DRR), policy makers are confronted with a difficult task: identify what kinds of risks and what kinds of disasters “count” and, thus, are worth prioritizing. Currently, our most expensive disasters are often not those where the most people are affected, or where the most lives are lost.1 Additionally, data on international CCA financing and DRR financing suggests that both are volatile, fragmented, and concentrated in a small handful of countries. Furthermore, existing financing patterns raise important, but under-explored questions of equity.2 Compounding the challenges in this area, there are still many gaps in our understanding of patterns of CCA and DRR financing. Given the synergies between the two areas, it is likely that there will be considerable institutional exchange and borrowing as climate finance systems continue to 1  See The United Nations Office for Disaster Risk Reduction (UNISDR), Disaster Impacts 2000/2012, http://www.preventionweb.net/files/31737_20130312disaster20002012copy.pdf. 2  Jan Kellett & Alice Caravani, GFDRR, Financing Disaster Risk Reduction: A 20-year story of international aid, (Sept. 2013) at 5, available at http://www.odi.org/publications/7452climate-finance-disaster-risk-reduction.

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develop. Financing at the intersection of CCA and DRR, thus, is an area where more data is needed, more transparency is needed, and more un-peeling of equity3 considerations is needed. With CCA adaptation receiving increased attention worldwide, and with climate financing expected to grow exponentially in the near future, we are at a critical juncture for thinking about how to structure planning and financing at the intersection of CCA and DRR. In order to more fully engage in this debate, we must develop a fuller understanding of existing patterns of financing within the broad areas of DRR and CCA. Analysis of what these existing patterns reveal about the types of “risks” deemed important must also be developed in order to think critically about the extent to which the existing system provides a sound foundation upon which to base future efforts. Building on the scholarly debate focusing on the question of who should pay for adaptation, this chapter begins the process of exploring what kinds of adaptation efforts should be paid for. Given that this is relatively uncharted territory, this chapter seeks to map out some of the critical framing questions that need to be explored in order to create the foundation for effective and equitable adaptation governance regimes. Within this context, this chapter is framed around three key premises: (1) equitable and reliable CCA finance is essential; (2) there are increasing intersections between CCA and DRR needs and strategies; (3) funding patterns in both the CCA and DRR contexts are rife with equity challenges that demand closer scrutiny. Part II begins by exploring the rise of adaptation as a global priority and examining the emerging climate finance regime. Part II also highlights the fragmentary and still evolving nature of both adaptation planning and climate financing and the unresolved question of what role equity considerations play in these processes. Part III introduces the concept of DRR and examines synergies between CCA and DRR before analyzing existing patterns of DRR financing. Finally, focusing on equity dimensions, Part IV concludes by mapping out a series of questions at the interface of DRR-CCA that merit further exploration and emphasizes the urgency of exploring these questions now, 3  This chapter operates on the general premise that: “[e]quity—whether grounded in philosophy, morality, or human nature—is an ideal that shapes our view of what is right or just. It is predicated on the notion of common good and, at times, calls on some to sacrifice for the sake of others.” John Ashton & Xueman Wang, Equity and Climate: In Principle and Practice 63, in Beyond Kyoto: Advancing the International Effort Against Climate Change (2003), http://www.c2es.org/docUploads/Beyond%20Kyoto.pdf.

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while the adaptation financing regimes are still in the early stages of evolution and retain a degree of malleability. 2

Equitable and Reliable Climate Change Adaptation Finance is Essential

The Intergovernmental Panel on Climate Change (IPCC) defines adaptation as an “adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities.”4 In the governance context, adaptation includes all of the efforts undertaken at multiple levels of governance to prepare for climate change, whether the intent is to maximize advantages or minimize disadvantages associated with climate change. As evidence highlighting the inevitability of some degree of climate change mounts, the urgency surrounding adaptation grows and efforts to develop adaptation strategies multiply worldwide. At the international level, while adaptation has always been part of UNFCCC negotiations, until recently, it remained a distant second priority to mitigation. In 2010, however, the Parties to the treaty agreed that adaptation must be addressed with the same level of priority as mitigation.5 At the same time the Parties began the process of constructing a new adaptation framework to facilitate more focused adaptation efforts, including creating a new Adaptation Committee as well as developing a new climate finance mechanism, the Green Climate Fund (GCF). The GCF, which was first proposed as part of the Copenhagen Accord in 2009, was created to “meet the financing needs and options for the mobilization of resources to address the needs of developing country Parties with regard to climate change adaptation and mitigation.”6 4  Intergovernmental Panel on Climate Change 2007: Impacts, Adaptation and Vulnerability 6 (M.L. Parry et al. eds., 2007), available at http://www.ipcc-wg2.gov/AR4/website/intro.pdf. 5  See U.N. Framework Convention on Climate Change Conference of the Parties, Cancun, Mexico, Nov. 29–Dec. 10, 2010, Report of the Conference of the Parties on its Sixteenth Session, held in Cancun from 29 November to 10 December 2010, FCCC/CP/2010/7/, Decision 1/CP.16, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, (March 15, 2011), para 2(b), FCCC/ CP/2010/7/Add. 1 http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page4 [hereinafter Cancun Agreements] (agreeing that: “adaptation must be addressed with the same priority as mitigation and requires appropriate institutional arrangements to enhance adaptation action and support.”). 6  Id. para. 101.

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Reflecting the shifting priorities of the Parties to the treaty, the governing instrument for the GCF emphasizes the need to balance mitigation and adaptation activities.7 Following on from commitments first made in 2009 in Copenhagen and subsequently embedded in the 2010 Cancun Agreements, the Parties to the treaty ultimately agreed that “developed country Parties commit, in the context of meaningful mitigation actions and transparency on implementation, to a goal of mobilizing jointly USD 100 billion per year by 2020 to address the needs of developing countries.”8 Thus, the Parties to the treaty have agreed to mobilize a significant amount of money towards efforts to address climate change, ostensibly with equal parts of that money allocated to adaptation and mitigation. 2.1 Climate Finance: An Overview Recent efforts to formalize climate finance commitments make this a critical time to think about climate financing infrastructure and policy. Climate finance, however, is not a new topic of investigation. As Thompson notes, “from the earliest days of the global climate change regime, the question of how to finance efforts to address the problem has featured prominently in policy debates and international negotiations.”9 A recent effort to calculate flows of climate finance finds that “about $182 billion per year is invested in developing countries to support mitigation and adaptation activities, mostly from domestic sources. About $30–62 billion of the total originates in developed countries, giving us a rough estimate of North-South flows.”10 Focusing more narrowly on public adaptation-related finance, in a 2014 report, the United Nations Environment Programme (UNEP) estimated that for 2012/13, there was “around US$24.6 billion . . . of which 88 per cent was invested in non-OECD countries.”11 This figure “represents a large increase over recent 7  United Nations Framework Convention on Climate Change, Nov. 29–Dec. 10, 2010, Green Climate Fund—Report of the Transitional Committee, Draft decision—/CP.17, FCCC/ CP/2011/L.9 (Dec. 10, 2011). ¶¶ 2 & 8. 8  United Nations Framework Convention on Climate Change Conference of the Parties, CFCCC/CP/2013/L.13, Draft decision—/CP.19, Work Programme on Long Term Climate Finance, ¶ 3 (2013), http://unfccc.int/resource/docs/2013/cop19/eng/l13.pdf. 9  Alexander Thompson, The Global Regime for Climate Finance: Political and Legal Challenges in The Oxford Handbook of International Climate Change Law (forthcoming 2016) (on file with author). 10  Id. (citing Barbara Buchner et al., The Landscape of Climate Finance 2013, Climate Policy Initiative Report (October 2013), pp. 13–16.). 11  UNEP, The Adaptation Gap Report 2014. United Nations Environment Programme xiii (2014), http://www.unep.org/climatechange/adaptation/gapreport2014/portals/50270/pdf/ AGR_FULL_REPORT.pdf.

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years and indicates how climate change concerns are increasingly integrated in sustainable development, Green Economy and climate resilient development strategies.”12 Even so, the report “underscores the need for new, predictable and additional sources of funding to bridge the adaptation gap.”13 Despite increasingly healthy flows of money—albeit, still well-below called for levels—Thompson highlights a key challenge in climate finance, which is that “much of this total is not ‘new and additional’ and, absent a precise definition of what ‘counts’ as climate finance under the FCCC, it is not a clear indicator of progress toward the goal of $100 billion.”14 That is, it is extremely difficult to determine how much of present levels of what States are calling ‘climate finance’ is new and additional to other sources of overseas development aid that was, or would have been provided to developing countries under other labels or other programs even absent calls for climate financing and, thus, cannot be treated as flows of finance that are designed to address climate change, separate and additional to other concerns. Even if North-South flows of funding increased to desired levels of $100 billion per year and, even if this funding was ‘new and additional’, existing estimates suggest that much more is needed.15 In 2012, the International Energy Agency estimated that “between now and 2050 developing countries will need about $531 billion per year of investments in green energy technology to limit global temperature increases to two degrees Celsius above preindustrial levels (the threshold recommended by the Intergovernmental Panel on Climate Change to avoid the worst impacts).”16 This IEA estimate focuses on mitigating climate change, leaving open the question of how much complementary investment in adaptation is needed to offset the worst impacts of climate change. Recent estimates of the amount of investment that is needed 12  Id. 13  Id. 14  Id. 15  See, e.g., Lean Alfred Santos, For Jeffrey Sachs, $100B Climate Finance Target has 2 Major Problems, https://www.devex.com/news/for-jeffrey-sachs-100b-climate-finance-targethas-2-major-problems-86658 (quoting Sachs as critiquing the $100 billion pledge thusly: “The $100 billion [commitment] cuts in two ways. On the one hand, the countries have not been honest at all in mobilizing that funding. Second, had they been honest, we would see that it’s much too small to be decisive”. Id.). 16  Thompson, supra note 9 (citing IEA, Energy Technology Perspectives 2012: Pathways to a Clean Energy System (Paris: International Energy Agency, 2012)). Thompson further notes that: “according to an analysis by the Climate Policy Initiative, ‘climate finance investments have plateaued at levels well below what is needed’ ”. Id. (quoting Barbara Buchner et al., The Landscape of Climate Finance 2013, Climate Policy Initiative Report (October 2013), p. 34).

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vary widely.17 In the 5th Assessment Report, the IPCC suggested that existing global estimates of the costs of adaptation in developing countries will range between US$70 billion and US$100 billion a year globally by 2050.18 A more recent UNEP report suggests that the IPCC estimates are too low and cautions that “at a minimum, the costs of adaptation are likely two-to-three times higher than the estimates reported thus far, and plausibly much higher than this towards 2050.”19 Estimates vary, but several aspects of adaptation financing are clear: costs are increasing; public funding is increasing; there remain substantial gaps between needs and available funds; the majority of funding still goes to mitigation. Even those funds that are available for adaptation are hard to track both in terms of how they overlap with other funding programs and in terms of how they are spent.20 17  As recently noted by the World Resources Institute: “Over the last decade, numerous reports emerged with estimates of adaptation needs based on current climate change knowledge, with increasing estimates revealing the uncertainty and evolving scientific knowledge. At the lower end, a 2007 UNFCCC study projected adaptation finance needs for developing countries would start at $28 billion annually by 2030—at the higher end, UNEP recently estimated a maximum need for developing countries of around $300 billion annually by 2050.” Lisa Dougherty-Choux, The Costs of Climate Adaptation, Explained in 4 Infographics (April 23, 2015), http://www.wri.org/blog/2015/04/ costs-climate-adaptation-explained-4-infographics. 18  Muyeye Chambwera et al., Economics of Adaptation, p. 960 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 (2014), https://ipcc-wg2.gov/AR5/images/uploads/WGIIAR5-Chap17_ FINAL.pdf. 19  UNEP, The Adaptation Gap Report 2014. United Nations Environment Programme xiii (2014), http://www.unep.org/climatechange/adaptation/gapreport2014/portals/50270/pdf/ AGR_FULL_REPORT.pdf. In key part the report notes that:  plausible costs of US$150 billion/year by 2025/2030 and US$250 billion to US$500 billion/year by 2050. These estimates are largely based on climate change estimates where warming is limited to 2°C above pre-industrial levels. In cases of higher warming pathways, post 2030 cost of adaptation/residual damages are likely to rise very significantly due the higher levels and rate of change and the greater level of anticipatory adaptation. While the evidence is very limited, the IAM runs undertaken indicate that a 4°C pathway could potential double adaptation cost/residual damage by 2050.  Paul Watkiss et al., The Adaptation Funding Gap, 26, in UNEP, The Adaptation Gap Report 2014. United Nations Environment Programme (2014). 20  See, e.g., Dougherty-Choux, supra note 17. See also Thompson highlighting that, “[u]nder the funds established under the FCCC . . . mitigation receives about ten times

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There is little doubt that current levels of climate finance are inadequate to cover either mitigation or adaptation needs. Yet, as important as levels of finance are, there are other important impediments to improving climate finance systems, two of which are particularly relevant to this discussion: (1) the structural fragmentation of finance mechanisms; (2) ethical deficits in climate finance governance—both within existing systems of climate finance under the UNFCCC and as these systems intersect with other related areas, namely DRR. 2.2 Fragmentation & Equity in Adaptation Climate finance is fragmented. Under the UNFCCC, alone, a handful of mechanisms exist or are used to finance mitigation and adaptation measures, including: the Global Environmental Facility (GEF), the Adaptation Fund, the Least Developed Countries Fund, and the Green Climate Fund. As Thompson describes the terrain of UNFCCC climate finance: Only one organization, the GEF, was originally designated in the FCCC to operate its financial mechanism. The GEF has since been joined by the GCF and they compete with several additional multilateral organizations and funds involved in channeling North-South finance. The result is a complicated tapestry of governance institutions. The GEF was the original funding entity for the UNFCCC.21 Because of the GEF’s institutional linkages to the World Bank, with its complicated donordriven history, many developing countries opposed relying on the GEF as the primary climate finance mechanism.22 Partly in response to these concerns, between 2000–2001, the COPs adopted decisions creating the Adaptation Fund, the Special Climate Change Fund, and the Least Developed Country Fund. All three of these funds are designed to provide additional assistance to developing countries for adaptation or technology transfer and economic the financing of adaptation.” Thompson, supra note X, at 13 (citing OECD, Development Perspectives for a Post-2012 Climate Financing Architecture (Paris: OECD, 2010), at 11). 21  Nicholas Van Praag, The Global Environmental Facility: Instrument Established (1994) 33 I.L.M. 1273 22  See, e.g., Thompson, supra note 9 (further discussing this issue: “the choice of the GEF to manage climate financing was controversial because it was tied institutionally to the World Bank and was viewed by the developing world as excessively controlled by donor countries. . . . [b]y the late 1990s there was growing discontent among developing countries with the state of climate finance and they began pushing for alternatives that served their priorities and offered them more control.” Id.

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diversification. With the exception of the Adaptation Fund,23 however, these funds are based on voluntary contributions and the resources that they have, and that they have been able to disperse, are extremely limited when compared to estimations of need. Each of these mechanisms, as well as the previously discussed GCF, possess different missions, leadership, and operating policies meaning that they intersect and compete with one another to receive and funnel North-South finance, creating a fragmented and ill-coordinated UNFCCC climate finance regime. Further complicating the terrain of climate finance is the fact that the UNFCCC mechanisms exist alongside numerous other financing institutions, ranging from international bodies such as the International Monetary Fund (IMF) and World Bank, to regional development banks, to individual state aid programs, to non-profits. The general field of climate finance, as well as the narrower field of adaptation finance, is vastly complex and fragmented. This fragmentation allows experimentation and diversification in terms of what types of adaptation efforts are supported, but it may also inhibit iterative learning and create both inefficiencies and inequities.24 Our understanding of these patterns is still rudimentary. What is clear is that adaptation financing is on the up-swing and that there is a need to map the field better in order to understand where money is coming from, where it is flowing to, what kinds of projects it is supporting, and what kinds of successes and failures are resulting. Alongside mapping the field, there is an equally pressing need to explore more thoroughly the extent to which notions of equity inform existing finance decision making processes. Climate change creates particular equity dilemmas because of the way in which it operates. As Shukla describes it “climate change impacts have two characteristics: i) for a given global emissions trajectory, the distribution of impacts across the nations is independent of emissions profile of each nation, and ii) the impacts are felt over a long time horizon due to the long life of green-

23  The Adaptation Fund is partially financed by a 2 percent levy on all Certified Emission Reduction Units produced by Clean Development Mechanism projects. 24  See, e.g., Elinor Ostrom, Nested Externalities and Polycentric Institutions: Must We Wait for Global Solutions to Climate Change Before Taking Action at Other Scales?, 49 Econ. Theory 353 (2012); Daniel H. Cole, From Global to Polycentric Climate Governance, 2 Climate Law 395 (2011); Elinor Ostrom, Polycentric Systems for Coping with Collective Action and Global Environmental Change, 20 Global Environmental Change 550 (2010); Elinor Ostrom, A Polycentric Approach for Coping with Climate Change (World Bank, Policy Research Working Paper No. 5095) (2009).

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house gases in the atmosphere.”25 That is, there are disconnects both in place and in time between the causes and effects of climate change. Compounding these basic realities, from an adaptation perspective, one of the most troubling challenges is that “those countries with the least capacity to adapt to climate change will be affected to the greatest extent by a phenomenon they did not create.”26 The equity dimensions of climate change are well-recognized and inform the development of the international climate change regime. The UNFCCC acknowledges and seeks to rectify equity concerns throughout the treaty primarily relying on the concept of “common but differentiated responsibilities and respective capacities” (CBDRRC)27 as a basis for recognizing different levels of responsibility and capacity and for differentiating responsibilities among State parties with regards to, among other things, mitigation, adaptation, technology transfer, and financial obligations.28 The phrase ‘common but differentiated responsibilities’ was first formally used in 1992 in Principle 7 of the Rio Declaration on Environment and Development.29 That same year, the UNFCCC became the first multilateral environmental agreement to include the phrase.30 In the UNFCCC, the phrase is used to suggest that the international community shares a common responsibility for protecting the global atmosphere, but that the responsibility for addressing global climate change should be differentiated among States 25  P.R. Shukla, Justice, Equity and Efficiency in Climate Change: A Developing Country Perspective, in Fairness Concerns in Climate Change, Ference Toth Ed. (1999) http://www .decisioncraft.com/energy/papers/ecc/sidc/Equity/ecc.pdf 1. 26  Kate Miles, Investing in Adaptation: Mobilising Private Finance for Adaptation in Developing States, 5 Carbon & Climate L. Rev. 190, 194 (2011) (also arguing that “considerations of equity should direct financing of adaptation measures from both the public and private spheres.” Id.) See also Jouni Paavola and W. Neil Adger, “Fair Adaptation to Climate Change”, 56(4) Ecological Economics (2006). 27  United Nations Framework Convention on Climate Change (UNFCCC), 9 May 1992, in force 24 March 1994, 31 International Legal Materials (1992), Art. 3.1. 28  UNFCCC, New York, May 9, 1992, in force Mar. 21, 1994, 1771 UNTS 107, Arts. 3.1, 3.2, 4.1, 4.3, 4.4. 29   UNGA, A/CONF.151/26 (Vol. I), Rio Declaration on Environment and Development, Principle 7 (Aug. 12, 1992), http://www.un.org/documents/ga/conf151/aconf15126-1annex1 .htm; UNFCCC, supra note 28, Article 3. 30  UNFCCC, supra note 28, Article 3. It is important to note that the addition of the words ‘and respective capabilities’ mark an important departure from the usual CBDR formulation, particularly as it appears in Article 4(1) of the Convention, which creates obligations for all parties.

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(arguably) based on historical contribution to the problem as well as present capacity to respond.31 As the ethical cornerstone of the UNFCCC, the principle of CBDRRC has proved controversial. Many developed country parties, including the United States, resisted the inclusion of CBDRRC, fearing that it would create additional legal obligations, and have fought for a broader interpretation of the principle, over time. In more recent years, debate surrounding the legal meaning and application of the CBDRRC principle has been one of the most prominent questions of principle shaping climate politics and negotiations. How CBDRRC is understood and applied affects how the collective burden of climate change obligations is distributed. Many State parties thus argue that a static interpretation of the CBDRRC principle—that places the burden of achieving emission reductions solely on developed country parties (as defined in 1992 in Annex 1 of the UNFCCC), while excluding the parties with rapidly developing economies (e.g. China, India, and Brazil) from any type of legally binding emission reduction commitment—is now untenable as it no longer reflects current realities. Despite continuing controversy and interpretive ambiguity, CBDRRC provides the “overall principle guiding future development of the regime”.32 Although CBDRRC provides a vehicle for addressing equity concerns, it is not a catch-all for equity in the climate context and it is a limited principle that does not resolve how the parties to the Convention understand and seek to realize equitable outcomes across an increasingly complex set of climate change initiatives, including adaptation. There is no consensus on what equity means in the climate context. Thus, while the Convention commits parties to “protect the climate . . . on the basis of equity”,33 as one commentator noted: “[i]f you asked five different people what they think “equity” means, you’d probably get five different answers.”34 The absence of consensus on what equity means in the climate change context is not surprising given the diverse social, economic, and political contexts characterizing the pool of State actors. The deep discord surrounding the CBDRRC debate provides a microcosm for understanding ongoing disagreements over how equity concerns should 31  Lavanya Rajamani, The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime, 9 Rev Eur Community & Intl Envtl L 120, 121 (2000). 32  Id. at 124. 33  UNFCCC, supra note 28, Art. 3.1. 34  Edward Cameron, What is Equity in the Context of Climate Negotiations (Dec. 4. 2012), http://www.wri.org/blog/2012/12/what-equity-context-climate-negotiations.

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be understood and should inform decision making across a wide variety of issues. Past practice suggests that “Parties are unlikely to agree on any unitary approach to equity, based on a single, objective yardstick, as a foundation for a long-term climate agreement. Any search for such an approach is bound to fail, and risks diverting negotiating capital away from more productive terrain.”35 Given this reality, discussions of equity are often watered down to a common denominator that focuses on ensuring that climate measures do not make developing countries worse off and that special care is given to the poorest and most vulnerable States. Even realizing these components of equity in practice, however, has proved challenging. In practice the evolution of the system of international climate change has been dominated by national self-interest, with central emphasis often given to economic efficiency and effectiveness.36 In the context of adaptation, however, economic efficiency and effectiveness provide limited tools for deciding what kinds of adaptation measures are necessary and desirable. As one commentator notes, decision making about adaptation must also “accoun[t] for equity—who gains and who loses—and for the impacts of the measures on other factors that are not represented in monetary terms.”37 At the local level, this is already happening, with many communities making adaptation “decisions in a larger context, taking into account other socioeconomic and political factors.”38 What is less clear is how considerations of equity—broadly understood—can and should inform adaptation financing decision making processes at the international level. These questions become increasingly important as the Green Climate Fund, among others, stands ready to help mobilize and distribute increasing amounts of public and private finance. At the moment, with regard to private finance, little consideration is paid to the role that equity should play in CCA financing. As Miles explains:

35  John Ashton & Xueman Wang, Equity and Climate: In Principle and Practice 62, in Beyond Kyoto: Advancing the International Effort Against Climate Change (2003), http://www .c2es.org/docUploads/Beyond%20Kyoto.pdf. 36  See, e.g., Resources for the Future, Marina Cazorla and Michael Toman, International Equity and Climate Change Policy, Climate Issue Brief No. 27, 1 & 5 (2000) (commenting that: “Equity may be one motivation for countries to pursue GHG emissions policies. However, equity principles will not override other elements of national self-interest. Moreover, differences in perceptions about what constitutes equitable distributions of effort complicate any agreement”) Id. 37  Chambwera et al., supra note 18, at 961. 38  Id.

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Currently, there is no requirement for transnational financing and investment decision-making to be supportive of sustainable development. There is no international accountability for financing socially and environmentally harmful projects. And there is no international regulatory framework that can require equitable private sector financing of climate adaptation measures in developing states.39 With regards to monies funneled through the UNFCCC institutions, as discussed, each funding mechanism has different decision making processes for allocating funds, but early evidence suggests that deep40 understandings of equity play a limited role in influencing lending decisions. For example, of the top 20 countries approved for funding through the Adaptation Fund—a Fund specifically created to fill a funding gap for developing country Parties to the Kyoto Protocol that are particularly vulnerable to the adverse effects of climate change—only four are in the top 50 “at-risk” countries, as ranked by the Germanwatch’s Global Climate Risk Index (1994–2013). The fact that the Adaptation Fund focuses on developing countries allows an argument to be made that equity is an intrinsic part of the lending process, since all potential recipient countries are developing countries and, thus, are countries that, for the most part, bear little responsibility for contributing to climate change while also standing to carry a disproportionate burden when it comes to suffering the effects of climate change. But, this is a thin understanding of equity that fails to account for the great variation of both need and capacity among developing States that contributes to adaptation inequalities. Alongside the Adaptation Fund, the Least Developed Countries Fund (LDCF) and the Special Climate Change Fund (SCCF) continue to grow and attempt to fill in funding gaps that leave many of the most vulnerable states resource scarce. As of 2014, however, progress reports showed that “the demand for LDCF resources considerably exceeds the funds available for new 39  Miles, supra note 26, at 201. 40  See, e.g., David Takacs, Forest Carbon Offsets and International Law: A Deep Equity Legal Analysis, 22 Geo. Int’l Envtl. L. Rev. 521, 526 (2010)(describing deep equity thusly: “deep equity means simultaneously promoting individual, community, and ecosystem health in present and future generations. It requires distributive justice to promote such equity. It recognizes that past injustices have lead to present inequity—between North and South, between elites and non-elites within a nation, and between indigenous and nonindigenous groups—and thus state and private entities have a common but differentiated responsibility to advance equity. Deep equity recognizes that human rights must be respected, protected, and fulfilled if individuals and communities are to maximize their potential.”).

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approvals” and that as of “September 26, 2014, there were no resources available for new funding approvals.”41 Equally, with respect to the SCCF, the funds available “could meet less than 30 per cent” of estimated demand.42 These two funds, which seek to direct funding towards some of the highest risk but most overlooked regions, remain marginal entities within the increasingly complex and crowded global climate finance arena. The Green Climate Fund, which could potentially shake-up the UNFCCC climate finance arena in a multitude of ways, is still in an emergent phase, so it is not yet possible to determine the ways in which equity is interpreted or operationalized. The Governing Instrument makes no mention of equity, but states that the Fund “will strive to maximize the impact of its funding for adaptation and mitigation, and seek a balance between the two, while promoting environmental, social, economic and development co-benefits and taking a gender-sensitive approach.”43 The Governing Instrument also repeats the objective, already embedded within the Adaptation Fund, to take “into account the needs of those developing countries particularly vulnerable to the adverse effects of climate change”,44 as well as taking this one step farther by committing to “provid[ing[ simplified and improved access to funding, including direct access, basing its activities on a country-driven approach.”45 Finally, in operationalizing the Fund, the Board of the Green Climate Fund commits to taking into account the “urgent and immediate needs of developing countries that are particularly vulnerable to the adverse effects of climate change . . . using minimum allocation floors for these countries as appropriate. The Board will aim for appropriate geographical balance.”46 The steps that are being taken to ensure that adaptation funding is both equally prioritized with mitigation funding, and more evenly distributed suggests that the Board is 41  GEF, Progress Report on the Least Developed Countries Fund and the Special Climate Change Fund, GEF/LDCF.SCCF.17/03, Executive Summary (Oct. 8, 2014), https://www.thegef .org/gef/sites/thegef.org/files/documents/GEF-LDCF.SCCF_.17-03%2C%20Progress%20 Report%20on%20the%20LDCF%20and%20the%20SCCF%2C%202014-10-08.pdf. 42  Id. 43  Green Climate Fund, Governing Instrument of the Green Climate Fund 2 (The Governing Instrument for the Green Climate Fund was approved by the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) at its seventeenth session on 11 December 2011 in Durban, South Africa. See FCCC/CP/2011/9/Add.1, Decision 3/CP.17, Launching the Green Climate Fund, I(3), http://unfccc.int/resource/ docs/2011/cop17/eng/09a01.pdf.). 44  Id. at 2, I(2). 45  Id. at 9, V(31). 46  Id. at 13, V(E)(52).

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seeking to elevate adaptation funding while minimizing the geographical and demographic imbalances that have plagued other UNFCCC programs.47 It is too early, however, to determine whether or how the Green Climate Fund will bring adaptation and equity to the forefront in climate finance. A much more granular evaluation of climate finance is needed to understand the ways in which equity is understood and influences adaptation finance decisions within and across the different funding mechanisms. More specifically, much more data is needed to determine to what degree understandings of relative levels of risk and vulnerability shape adaptation finance decisions. A lack of transparency in lending decisions coupled with the still novel and evolving nature of climate finance make it difficult to determine the degree to which deeper understandings of equity that account for relative levels of risk are incorporated in decision making processes. What is clear, however, is that there is an urgent need for new and additional sources of financing and for more inclusive discussions of the role that equity does and should play in allocating these monies. These unanswered questions of what equity means, and what role different understandings of equity play in adaptation financing decisions take on additional importance as CCA begins to intersect with other areas of law, and other areas of finance, namely disaster law and disaster risk reduction finance. 3

Disaster Risk Reduction

3.1 Climate Change and Disasters: An Overview The increased focus on CCA becomes more urgent as our understanding of the links between disaster and climate change deepens. Worldwide, existing systems for disaster preparedness, response, and mitigation are already stressed. Climate change accentuates disaster risk and adds further stress to the system. As Verchick notes, the potential disasters that climate change might exacerbate include “heat waves, droughts, crop failures, wildfires, and outbreaks of illness.”48 Extreme events are extremely costly to society. As a 47  See, e.g., Andrew Keeler & Alexander Thompson, Mitigation through Resource Transfers to Developing Countries: Expanding Greenhouse Gas Offsets, in Climate Change Policy Beyond Kyoto, edited by Robert N. Stavins & Joseph E. Aldy (New York: Cambridge University Press, 2010), 439–68 (discussing some of the challenges encountered in operationalizing the Clean Development Mechanism). 48  Robert Verchick, Adapting to Climate Change While Planning for Disasters: Footholds, Rope Lines, and the Iowa Floods, 2011 BYU L. Rev. 2203, 2209 (2011) (further highlighting that in

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result “a ­critical issue for adaptation is the degree to which frequency, intensity, and persistence of extreme events change.”49 Adapting to climate change, therefore, requires understanding and improving disaster preparedness, mitigation, and response systems at every level. Equally, for those working in the disaster context, avoiding and minimizing the effects of disasters requires understanding and accounting for the ways in which climate change could exacerbate disasters. Awareness of disaster-climate linkages is improving, but there is still a need to deepen understanding of the ways in which climate change exacerbates the risks associated with both sudden (e.g., flood) and slow-onset (e.g., drought and famine) disasters. Deepening analyses, in this regard, depends on improving understanding of levels of risk and vulnerability at the intersection of climate change and disaster. As Farber details, “[t]he degree of harm from a weather event such as a flood depends on many factors beyond the severity of the event itself: the number of people and value of property at risk, vulnerability of infrastructure, adequacy of emergency responses, availability of funds for recovery, and the level of organization characterizing rebuilding efforts.”50 As Farber’s framing suggests, while extreme events cause harm wherever they occur, the nature and extent of the harm depends on a number of factors. As a result of physical and socio-economic exposure, developing states are particularly susceptible to natural disasters. As Verchick notes, “[c]atastrophe is bad for everyone. But it is especially bad for the weak and disenfranchised.”51 This is particularly true at the intersection of climate change and disasters. 3.2 Disaster Risk Reduction: An Introduction Within the disaster context, more and more attention has been paid to efforts to reduce the risk of disasters preemptively. These efforts frequently fall under the heading of DRR. As defined by the United Nations Office for Disaster Risk Reduction (UNISDR), DRR is “the concept and practice of reducing disaster risks through systematic efforts to analyze and reduce the causal addition to direct threats to human life and property, impacts on food supplies could be severe due to pests, water scarcity, diseases, and weather extremes). 49  William E. Easterling III, Brian H. Hurd, and Joel B. Smith, Coping with Global Climate Change: The Role of Adaptation in the United States (Pew Center on Global Climate Change 17 (2004). 50  Daniel Farber, Climate Change and Disaster Law, in The Oxford Handbook of International Climate Change Law (forthcoming 2016) (on file with author). 51  Robert R.M. Verchick, Facing Catastrophe: Environmental Action for A Post-Katrina World 104 (2010).

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factors of disasters. Reducing exposure to hazards, lessening vulnerability of people and property, wise management of land and the environment, and improving preparedness and early warning for adverse events are all examples of DRR.”52 In essence, DRR is about choices; more specifically, it is about making choices that minimize the chance of, or the harm associated with disasters. At the international level, two recent agreements exemplify this trend. The 2005 Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, which represents the culmination of early global efforts to develop cooperative and systematic efforts to reduce vulnerabilities in the context of natural disasters, calls on all implementing states, organizations, and institutions to “[m]ainstream DRR measures appropriately into multilateral and bilateral development assistance programmes including those related to poverty reduction, natural resource management, urban development and adaptation to climate change.”53 The follow-up agreement, The Sendai Framework for Disaster Risk Reduction 2015–2030 (Sendai Framework),54 places DRR firmly at the forefront of efforts to minimize disaster risks and emphasizes the importance of a “concise, focused, forward-looking and actionoriented”55 framework. Both the Hyogo Framework and the Sendai Framework highlight the linkages between DRR, development, and other underlying risk factors, including climate change. The Sendai Framework puts disaster-climate synergies front and center, declaring that, “[a]ddressing climate change as one of the drivers of disaster risk . . . represents an opportunity to reduce disaster risk in a meaningful and coherent manner,”56 and calling for the incorporation of “DRR measures into multilateral and bilateral development assistance programmes 52  UNISDR, What is Disaster Risk Reduction?, http://www.unisdr.org/who-we-are/ what-is-drr. 53  UNISDR, Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, (July, 2007) at 18–19, http://www.unisdr.org/files/1037_hyogo frameworkforactionenglish.pdf. 54  United Nations General Assembly, The Sendai Framework for Disaster Risk Reduction 2015– 2030, A/RES/69/283 (June 23, 2015), http://www.preventionweb.net/files/resolutions/ N1516716.pdf. The Sendai Framework is described as a: “15-year, voluntary, non-binding agreement which recognizes that the State has the primary role to reduce disaster risk but that responsibility should be shared with other stakeholders including local government, the private sector and other stakeholders.” UNISDR, Sendai Framework for Disaster Risk Reduction, http://www.unisdr.org/we/coordinate/sendai-framework. 55  Id. at Preamble. 56  Id. at Preamble, para. 13.

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within and across all sectors, as appropriate, related to poverty reduction, sustainable development, natural resource management, the environment, urban development and adaptation to climate change.”57 Equally, within the climate change context, DRR techniques are increasingly recognized as an important tool with respect to CCA.58 In common with adaptation efforts, DRR is viewed as a tool for promoting resilience. Promoting synergies between CCA and DRR is seen as a way to deepen and diversify the adaptation toolkit while also providing additional funding options.59 The synergies between CCA and DRR, thus, are increasingly recognized in both contexts with the result that there are more frequent calls to integrate adaptation and DRR efforts. Integrating CCA and DRR efforts entails leveraging existing institutional resources, knowledge, planning, and financing structures from both contexts. In relevant part, on the financing side, this means drawing upon DRR funds to help further CCA goals, and vice versa. While both climate finance and DRR finance are relatively new, DRR finance emerges from, and exists within a larger, long-standing body of disaster financing. Understanding existing patterns of financing within the disaster context, thus, is critical to understanding the implications of more deeply integrated CCA and DRR strategies. 3.3 Funding Patterns in the Disaster Risk Reduction Context In common with climate finance, generally, and CCA finance, more specifically, there is a dearth of easily accessible, high quality data showing flows of DRR financing or detailing how DRR financing decisions are made. If we begin by just looking at disaster financing, writ large, both the scale of disasters and disaster funding, as well as the funding trends in this context become readily apparent. It is estimated that over the past two decades, the international community has given roughly $3 trillion in international aid. Of this $3 trillion, $106.7 billion was allocated to disasters, with just a tiny part of this already limited pool, an estimated $13.5 billion, being allocated for DRR measures.60 In total, Kellett and Caravani estimate that this amounts to .04% 57  Id at para. 27(d). 58  For example, both the Bali Action Plan and the Cancun Agreements recognize DRR as an important tool in the adaptation context. 59  See., e.g., UNFCCC, Funding Options for Adaptation, http://unfccc.int/adaptation/work streams/implementing_adaptation/items/4632.php. 60  Jan Kellett & Alice Caravani, GFDRR, Financing Disaster Risk Reduction: A 20-year Story of International Aid 5 (Sept. 2013), available at http://www.odi.org/publications/7452climate-finance-disaster-risk-reduction [hereinafter Financing Disaster Risk Reduction]

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of international aid being spent towards DRR, or just 40 cents for every $100 of aid committed by the international community over the last 20-years.61 Given that the UNISDR estimates that, between 2000–2012, disasters caused $1.7 trillion in damage, affected 2.9 billion people, and contributed to the deaths 1.2 million people, both the total amount of disaster funding and the dramatically smaller amount of funding set aside for DRR measures comes into clearer focus.62 Disasters are a major cause of loss of life, human suffering, and economic loss and current levels of financing cannot keep pace from a prevention, response, or recovery perspective. Add to this already grim picture, the ways in which climate change is expected to multiply disasterrelated threats and the urgency of thinking critically about how to leverage funds at the intersection between disasters and climate change becomes more evident. As with climate finance, the urgency of augmenting funding streams is coupled with the attendant question of how we are, and should be spending disaster-related funds. With respect to CCA, more specifically, how is the limited pool of DRR funding being spent and how does this comport with notions of equity in the climate context? Although more and better data is needed, analyses of existing data reveal deep inequities in present patterns of DRR financing. To begin, over the past 20-years, only 3,687 DRR projects have been financed through international aid. Within this already limited pool, “a relatively small number of projects account for the vast majority of funding overall. For example, just 33 projects with a value of more than $100 million apiece account for $6.9 billion of all DRR financed over the 20-year period, equivalent to more than 50%.”63 At the bottom end of the scale, “3,188 projects that cost less than $1.5 million represent 86.5% of the total number but only for 5.5% of the volume of financing.”64 Financing, thus, is heavily skewed towards a few big projects.65

(further noting that this $13.5 billion in DRR aid should be contrasted to the “$23.3 billion spent on reconstruction and rehabilitation and $69.9 billion spent on response.” Id.). 61  Id. at vi. 62  UNISDR, Disaster Impacts: 2000–2012, http://www.preventionweb.net/files/31737_201 30312disaster20002012copy.pdf (noting that for UNISDR purposes, disasters “refers to drought, earthquake (seismic activity), epidemic, extreme temperature, flood, insect infestation, mass movement (dry & wet), storm, volcano, and wildfire.” Id.). 63  Financing Disaster Risk Reduction, supra note 60, at 17. 64  Id. at vi. 65   The countries with the highest number of projects include: 1. Indonesia (163); 2. Bangladesh (149); 3. Philippines (138); 4. Vietnam (135); 5. China (111). Id. at 17.

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DRR financing also flows disproportionately to a small handful of recipient countries, “with all but one (Bangladesh) of the top 10 recipients of financing being middle-income countries.”66 Alongside Bangladesh at number three, the other four countries receiving the most DRR funding between 1991–2010, were (in order): China, Indonesia, Philippines, and Mexico, with China and Indonesia alone accounting for $3 billion or 22.3% of total DRR financing.67 According to World Bank data, both China and Indonesia rank in the top ten globally for GDP, while Mexico falls at 12 and the Philippines at 28.68 Four of the top five recipients of DRR funding, therefore, are among the top 30 highest for global GDP. While GDP, in many ways, may be a poor indicator of overall well-being, the high levels of DRR funding flowing to middle-income, high GDP countries means that there is very little DRR funding flowing to low-income, low GDP countries, many of which are at very high risk for natural disasters. For example, between 1994–2013, “low-and-lower-middle-income countries experienced 44% of disasters, but suffered a disproportionately high 69% of global mortality.”69 Likewise, on average, “more than three times the number of people died per disaster in low-income countries than in high-income countries”.70 More specifically, despite suffering from chronic and reoccurring disasters, countries such as Tajikistan, Mozambique, Kenya, and Haiti received small amounts of DRR funding when compared to their allocation of international aid for disaster response, recovery, and reconstruction (9%, 3.7%, 7.7%, and 3.6%, respectively).71 Looking at this DRR data from a climate perspective, another ethical dimension emerges: several of the top recipients of DRR financing are also among the top global greenhouse gas emitters. China, for example, is the largest net global emitter of greenhouse gas emissions, while both Mexico and Indonesia

66  Id. at 13. 67  Id. at 15. 68  World Bank, World Development Indicators Database (July 1, 2015) http://databank.world bank.org/data/download/GDP_PPP.pdf. 69  Centre for Research on the Epidemiology of Disasters, The Human Cost of Natural Disasters: A Global Perspective 28 (2015). 70  Id. The disparate impact of natural disasters on lower income countries is due to a number of factors, including: absent or poor early warning systems, underdeveloped recovery and relief infrastructure, high levels of social, economic, environmental, and geopolitical stresses that exacerbate the impacts of natural threats, high levels of population living in more risk-prone geographies; and conflicting development funding needs. Id. at 28. 71  Id. at 13.

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also rank among the top 10 greenhouse gas emitters.72 Thus, a significant portion of DRR financing flows to middle-income, high greenhouse gas emitting countries, leaving many of the lower income, low emitting countries with very limited access to DRR funding. One of the most troubling aspects of existing patterns of DRR financing both independent of, and taking account of disaster-climate synergies, is that there appears to be a disconnect between countries’ mortality risk and the volume of DRR funding that they receive. The Mortality Risk Index (MRI), which was developed by UNISDR, models hazards (tropical cyclones, floods, earthquakes and landslides) in both frequency and severity, human exposure and identification of vulnerability.73 The MRI, while imperfect,74 provides a good comparative measure of the cumulative level of risk that different countries face. Data on DRR financing, however, suggests that risk is not a good indicator of where DRR will flow.75 In addition, one of the most evident trends with respect to DRR financing is that economic risk, as opposed to human risk, tends to be a better indicator of where high levels of money will flow.76 72  Johannes Friedrich, Mengpin Ge, & Thomas Damassa, Infographic: What Do Your Country’s Emissions Look Like? (June 23, 2015), http://www.wri.org/blog/2015/06/infographic-whatdo-your-countrys-emissions-look. See also Mengpin Ge, Johannes Friedrich, & Thomas Damassa, 6 Graphs Explain the World’s Top 10 Emitters (Nov. 25, 2014) http://www.wri.org/ blog/2014/11/6-graphs-explain-world’s-top-10-emitters. 73  Financing Disaster Risk Reduction, supra note 60, at 25. 74  One of the things that the MRI does not account for is drought. Because climate change is expected to exacerbate drought threats, this is a limitation of the MRI from a climatechange adaptation perspective. Further, the inequities in DRR financing are even more prominent for countries with countries susceptible to drought, many of whom have received very low DRR financing in terms of both volumes and per capita funding. 75  Id. at 28. The authors add further detail on this pattern, noting that:  Ecuador (scored 7 for risk), the second highest recipient per capita, received 19 times more funding than Afghanistan (scored8), 100 times more than Costa Rica and 600 times more than the DRC (both scored 7). A similar pattern runs throughout the data. Twelve countries with a mortality risk of 6 and above, for example, received less than $1.50 per capita over the whole of the two decades, while four countries that also scored 6 and above received more than $10 per capita.  Id.  The authors report that: “many high-risk countries have received negligible levels of financing for DRR compared with emergency response; 17 of the top 20 recipients of response funding received less than 4% of their disaster-related aid as DRR.”  Id. at vi. 76  Id. at vi (determining that “[w]here the economy is at risk, volumes of financing tend to be high; where predominantly populations are at risk, volumes are often low.”).

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Reviewing the entire landscape of DRR financing, Kellett and Caravani conclude that “while overall there is a trend towards financing for DRR according to a scoring of risk, once the data is unpeeled to look at equity, a great imbalance becomes evident”.77 Efforts to prioritize DRR are gaining momentum at every level of governance. With the international community prioritizing DRR in the Sendai Framework, and with countries such as Indonesia and the Philippines beginning to invest heavily in DRR,78 this is likely to be a growth area in the future. As more is done to promote both DRR and CCA efforts and, along the way, to identify synergies between DRR and CCA, the lines between these two areas are likely to blur. Before diving head first into efforts to integrate DRR and CCA efforts, however, steps must be taken to identify and minimize the ways in which existing flows of finance imbed existing inequities. 4 Conclusion Moving Forward at the Intersection of Climate Change Adaptation and Disaster Risk Reduction In 1992, the international community came together to draft a set of principles to guide global efforts to develop sustainably. In the resulting Rio Declaration on Environment and Development, Principle 3 declares that “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”79 From this the principle of “common but differentiated responsibilities” evolved and became the controversial cornerstone of equity in international efforts to address climate change. The debate over how to achieve an equitable response to climate change, however, has only escalated over time as global greenhouse gas emissions have continued to rise and as the effects of climate change have begun to manifest and to impact certain countries disproportionately. Because the most harmful impacts of climate change are felt, largely, by the poorest countries who, often, are also the countries that are the least culpable and the least capable of responding, it is not “surprising that the language of equity has permeated the international negotiations on climate change since they began”.80 4.1

77  Id. 78  See, e.g., id. at 35. 79  UNGA, A/CONF.151/26 (Vol. I), Rio Declaration on Environment and Development Principle 3 (Aug. 12, 1992), http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm. 80  Ashton & Wang, supra note 35, at 62.

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Yet, more than 20 years into international negotiations, equitable responses to climate change remain elusive. Regardless of the definition one chooses, it is hard to argue that the climate change regime is actively advancing global equity against any number of measures given ongoing failures in efforts to mitigate climate change. Efforts to achieve equitable responses to climate change, nevertheless, remain central to international climate change negotiations. With respect to adaptation, there is still room to develop the international regime in a manner that advances global equity. Equity in the adaptation context requires, at a minimum that efforts account for the needs of those that are most vulnerable, or most at risk,81 and that there is widespread recognition of the fact that “achieving equity in adaptation is inextricably linked to a broader and more comprehensive social welfare agenda that addresses the underlying socioeconomic vulnerabilities that cause adaptation inequities.”82 In the context of adaptation financing, this requires evaluating the extent to which existing finance mechanisms promote vulnerability- and risk-based lending practices that are sensitive to local development needs and goals. Existing data suggests that there are many shortcomings, in this regard. Financing patterns in both the CCA and DRR contexts are rife with equity challenges that demand closer scrutiny. With climate adaptation programs and financing on the upswing and with increasing calls for the integration of DRR and CCA, this is a critical point in time to scrutinize more closely existing patterns of DRR and CCA financing. This chapter begins the process of mapping the challenge, but much more work is needed. Particular attention must be paid to improving understanding of existing patterns of CCA and DRR funding both independently and as they intersect. Future work must focus on unpacking a series of important questions, including:

•

What kinds of data are we missing and, relatedly, what kinds of additional data do we need to see? 81  See, e.g., WorldRiskReport 2014, UN Institute for Environment and Human Security (2014) at 40, available at https://www.ehs.unu.edu/article/read/world-risk-report-2014. The WorldRiskIndex is a tool developed by the UN Institute for Environment and Human Security that estimates a country’s disaster risk assessing that country’s social, economic and ecological conditions and its exposure to natural hazards. 82  Alice Kaswan, Domestic Climate Change Adaptation and Equity, 42 Envtl. L. Rep. News & Analysis 11125, 11126 (2012) (In this article, Kaswan lays out seven principles that she believes are necessary to ensure equity in adaptation within the domestic context.).

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• • •

What factors influence financing decision making processes? How are levels of vulnerability and risk taken into account in financing decision making processes? Is there consistency within and across institutions with respect to how vulnerability is assessed, and how vulnerability assessments are considered in decision making processes? How is equity understood and operationalized in different contexts? What is asked of recipient countries in terms of accountability and providing feedback on project success? How is equity implemented/enforced after financing decisions are made? At both the local and international level, how can transparency in decision making be improved? And, finally, what’s in a name—i.e., while the focus here has been on CCA and DRR financing, what other forms of financing are intersecting with CCA and DRR efforts (e.g., sustainable development, agricultural, health) and how does this influence both the availability, and the equity dimensions of financing programs?83

• • • •

These are just a few of the many questions that must be considered as we explore ways to develop more effective and equitable adaptation measures and integrated CCA and DRR programs. 4.2 Final Thoughts UN Secretary General Ban Ki-moon recently declared that: “Ours is the first generation that can end poverty, and the last that can take steps to avoid the worst impacts of climate change.”84 His statement rests upon the assumption that efforts to address climate change will do so in a way that complements the parallel challenge to end poverty. However, existing tools for assessing loss and allocating resources for DRR and CCA may systematically undervalue both 83  See, e.g., Miles, supra note 24, at 196 (noting that: “Consideration of equity needs to be maintained in the seeking of synergies between climate adaptation programmes and different development streams, as concerns have been raised that such integration could lead to funding deficits for adaptation. The reason for this being that if adaptation needs are subsumed into development programmes, funding for climate adaptation may be expected to be drawn from general development funds. In other words, no additional adaptation finance would be provided.” 84  Ban Ki-moon, We are the last generation that can fight climate change. We have a duty to act, The Guardian (Jan 12, 2015), http://www.theguardian.com/commentisfree/2015/ jan/12/last-generation-tackle-climate-change-un-international-community.

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particular groups of people and particular types of injuries. As a result, until we begin to question how ideas of equity shape how we perceive and respond to risk and how these perceptions influence how risk reduction financing is allocated at the intersection of DRR and CCA, these twin goals remain elusive and, often, in conflict. In the end, while it is true that “[t]he world cannot afford to perpetuate a disconnect between DRR, sustainable development and climate change”,85 it is also true that the world cannot afford to perpetuate CCA and DRR systems that fail to account for the needs of the most vulnerable.

85  UNISDR, Work Programme 2014–2015: Delivering Against the Strategic Framework, 7 (Dec. 2013), http://www.unisdr.org/files/36219_unisdrbwp20142015.pdf.

Part 2 Using Environmental Law Tools for Disaster Risk Reduction

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CHAPTER 7

Disaster Risk Assessment: An Appraisal of European Union Environmental Law Denis Edwards 1 Introduction The large body of what is now European Union (“EU”) environmental law originates in some bold measures adopted by the EU legislature in the 1970s and 1980s.1 When they were adopted, the EU had no express legislative competence in the field of the environment, or (for present purposes) the related fields of energy, health and safety or subjects dealing directly with emergencies caused by natural or man-made disasters. Express competence over the environment was only conferred on the EU in 1987 and it was 1993 before the EU Treaties mentioned the precautionary principle in relation to the environment. Since then, the EU legislature has enacted a substantial body of environmental legislation, consolidated (and in some cases codified) its earlier legislative instruments in the field, and developed climate change legislation with implications for many areas, including sustainable development, energy and natural resources. Given that one of the ‘constitutional’ norms of EU environmental law is the precautionary principle, it might be thought that EU measures would include some provision for disaster risk assessment and reduction. While some measures, such as flood risk measures, by their nature have always addressed this matter, it is only in the last few years that the EU has included the implications of natural disasters as a feature of some environmental legislation. In contrast, 1  For ease of reference, the term European Union (EU) is used in this paper to describe the supra-national governance arrangements launched by the 1951 European Coal and Steel Community Treaty, the 1957 European Atomic Energy Community Treaty and 1957 Treaty of Rome establishing the European Economic Community (EEC). Through a number of Treaty amendments between 1965 and 2009, culminating in the Lisbon Treaty of 2009, the modern EU has taken shape. In the field of environmental protection, it is the Treaty of Rome establishing the EEC (later European Community (EC)) and, following the Lisbon Treaty, recast as the Treaty on the Functioning of the European Union (and, along with the Treaty on European Union one of the two ‘constitutional charters’ of the EU), which is of greatest interest.

© Peel and Fisher (eds), ���6 | doi ��.��63/9789004318816_008

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for nearly twenty years the EU has made provision for assessing and reducing risks from accidental disasters in the course of some human activities. This is known in EU law as the Seveso Directive.2 Interestingly, the revision of this legislation and its expansion to the off-shore oil and gas sectors, prompted by the Deep Water Horizon disaster, has taken place at the same time as the EU has started to pay more attention to risks posed to the environment by the incidence of natural disasters. In part, the EU’s efforts in this respect have been prompted by the Hyogo Framework3 but up to now, changes to EU environmental law aiming at better disaster risk assessment and risk reduction have been slow. For example, it will be 2017 before the EU’s centrepiece environmental impact assessment (EIA) legislation expressly incorporates disaster risk assessment as a feature of EIA. Nevertheless, the incremental changes to EU environmental law reveal that the EU legislature is increasingly aware of the need for assessment of disaster risk. Factors which have led to increasing attention to this matter include recent experience of natural disasters such as earthquakes and floods in parts of the EU, water shortages elsewhere in the EU, pollution incidents and a general concern about the implications of climate change for a range of EU policies.4 The pending changes to the EU’s EIA Directive to include disaster risk assessment, provide a useful opportunity to assess the state of EU environmental law more generally from the standpoint of ‘disaster risk reduction’. It is possible that the current changes to EU environmental legislation will be followed by further initiatives aimed at improved disaster risk reduction. In this regard, EU law has both benefited from developments in environmental law elsewhere in the world, notably in North America, and itself contributed to the law’s development, in particular, in the field of protection of wildlife and natural habitats. For EU law, therefore, the opportunity which the current volume provides for comparative work in this area is one which is to be welcomed. 2  See Directive 2012/18/EU (‘Seveso III’), discussed further below. 3  Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters (UNISDR). 4  Interestingly, the EU’s experience following the eruption of the Icelandic volcano Eyjafjallajokull, which led to extensive disruption to aviation over Europe and the North Atlantic ocean in April 2010, led to very little in the way of legal reforms, despite indications at the time that it would do so. Rather, efforts focused on redefining the tests for dangers to aviation from volcanic ash and improving collective responsiveness: see http://www .economist.com/node/185580533.

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In recent years, the EU has become a significant contributor to disaster aid, including by its role in responding to emergencies and rebuilding communities around the world which have been shattered by a natural disaster. The purpose of this chapter is not to review the EU’s efforts and contributions in that area. Rather, in line with the focus of this book, this chapter concentrates on the extent to which EU environmental law contains norms and principles which are relevant to disaster risk assessment and risk reduction. It explores how EU environmental law seeks to deal with this subject and some of the challenges which EU law faces. The first section of the chapter identifies the foundations of EU environmental law and briefly explains some of the key constitutional principles of the EU. Without a rudimentary understanding of the EU’s institutional arrangements and the relationship between EU law and the legal systems of the Member States, it is impossible to understand the strengths and weaknesses of EU environmental law. The second section of the chapter considers the precautionary and preventive principles in EU law and how these principles have been understood and applied in EU law. The third section briefly considers the Seveso Directive, which addresses risks from man-made disasters and aims to achieve best practice in preventing such disasters. The Seveso Directive was first adopted when the EU Treaties did not expressly provide for the precautionary principle and the approach it now adopts is worth comparing with that which is (slowly) emerging in EU environmental legislation regarding risk assessment and reduction in respect of natural disasters. The chapter’s fourth section discusses some of the issues which arise under EU environmental legislation where it has begun to provide for disaster risk assessment. It is clear that the approach has so far been piecemeal, with a lack of any systematic treatment of the topic. Nevertheless, there are hints in recent legislative developments that this may be about to change. 2

The Foundations of EU Environmental Law

All EU environmental measures are now based on articles 191 and 192 of the Treaty on the Functioning of the European Union (“TFEU”). Given its centrality to EU environmental law, it is worth quoting the material provisions of article 191: 1. Union policy on the environment shall contribute to pursuit of the following objectives:

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– preserving, protecting and improving the quality of the environment, – protecting human health, – prudent and rational utilisation of natural resources, – promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. 2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.5 In addition, article 11 TFEU provides that ‘environmental protection requirements’ must be integrated into both the ‘definition and implementation’ of the EU’s policies and ‘activities’. This means, at a minimum, that EU legislation which is enacted pursuant to EU competence over the environment under article 191 TFEU must be compatible with the environmental principles set out there. As we shall see, the principal EU environmental measures include references to the environmental principles in article 191 TFEU, though it is debateable whether all of the relevant measures intend disaster risks posed by the environment to be part of the assessment process. Article 191(2) contains the key norms of EU environmental law. The article appeared in the EU Treaties in 1987, introduced by the Single European Act as article 130r of the Treaty of Rome.6 However, article 130r did not mention the precautionary principle. This was added by amendments made in 1993 by the Treaty on European Union, at which time article 191 TFEU took substantially its current form.7

5  Article 192 TFEU deals with the competence and procedure for the EU to make laws on the matters covered by article 191. 6  The Single European Act is the name for the 1986 Treaty between the then 12 EU states which made the first major amendments to the 1957 Treaty of Rome establishing the EEC. It entered into force following ratification in 1987. 7  The 1991 Treaty on European Union (known as the Maastricht Treaty (in force in November 1993)) established the European Union and made further significant amendments to the Treaty of Rome. The architecture which the Maastricht Treaty put in place survived until 2010 when it was reformed and streamlined into its current form by the 2009 Lisbon Treaty.

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Given that article 191 TFEU expressly makes the precautionary principle and the need for preventive action key EU environmental principles, and that the Court of Justice of the EU (“ECJ”) has repeatedly stated that the EU Treaties are the “constitutional charter” of the EU,8 there is a good starting point for disaster risk assessment and reduction being a feature of EU ‘constitutional’ environmental law. However, the implementation of the Treaty environmental principles is not straightforward, not only because of their own definitional problems but also because of the nature of EU law itself and its relationship with the legal orders of the 28 Member States. It is therefore necessary to say something about EU law before exploring what EU law says about the precautionary principle and how it works in EU environmental law. 2.1 EU Law and the Member States In order to understand the operation of EU environmental law, it must be set in the constitutional context in which EU law works. Four points of EU constitutional law must be mentioned, namely, the law-making competence of the EU, the centrality within EU law of ‘the four freedoms’, the supremacy and direct effect of EU law and, fourthly, the principle of ‘effectiveness’. The allocation of competences between the EU and the Member States is ultimately governed by the principle of “conferral”.9 Even if this were not expressly provided in the Treaties as it now is, it would follow inevitably from the fact that the EU treaties are made between sovereign states. If the states did not intend to confer powers on the EU, the treaties could not do so. In practice, however, matters are not so simple because the ECJ quickly identified that the EU was more than a species of international organization and, if not a state or federation, it was a “new legal order”.10 As things have turned out, what the EU Treaties intend to achieve regarding conferral of competences on the EU is a convoluted matter. For present purposes, suffice it to say that there are three types of EU competence, namely exclusive (article 3 TFEU), “shared” (article 4 TFEU) and so-called supporting competence (article 6 TFEU). EU powers over the environment fall within the category of shared competence. This should not, however, be regarded as an impediment to EU jurisdiction, largely because, as in other federal systems, the ECJ recognised that when the 8  See Case 294/83 Les Verts v. Parliament [1986] ECR 166, at para. 23; and Opinion 1/91 (EEA) [1991] ECR I-6079, at para. 21. 9  See Article 4(1) of the Treaty on European Union (“TEU”). Article 5 TEU further provides that competences not conferred on the EU remain with the Member States (thus mirroring the 10th Amendment to the US Constitution). 10  Case 26/62 Van Gend en Loos [1963] ECR 1, 12.

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EU exercises competence in a shared field, it occupies that field.11 Although the operation of this ‘pre-emption’ principle is qualified by other constitutional principles, notably the principle of subsidiarity in article 5(3) TEU,12 if the Member States agree to EU legislation (through the legislative organ of the EU Council),13 the EU legislation will then bind the Member States and preclude inconsistent national legislation on the same subject. The Member States must therefore agree that the EU is henceforth to occupy the field, which is often a restraint on exercises of ‘shared’ competence. But once the agreement is reached, the EU will then have exclusive competence in that area. Before competence over the environment was expressly conferred on the EU by the predecessor of article 191 TFEU, EU environmental measures were either ‘implied’ by other competences, such as from powers intended to achieve economic harmonisation in a sector of the market so as better to secure one of the four freedoms (in particular, free movement of goods), or based on the so-called ‘flexibility clause’ in what is now article 352 TFEU.14 In the early days, the legislative basis for environmental measures (and certainly article 352 TFEU) required unanimity amongst the Member States before the measure could be enacted. As a result, early EU environmental measures usually served other, often economic purposes. In many cases, the measures were sectoral, not too offensive to industrial interests and were often adopted as a reaction to some particular problem. Certainly, it is difficult to discern in the early measures much inspiration from the precautionary principle (though accident prevention does feature). Although the EU has had express and, in many areas, exclusive competence to enact laws on the environment for more than 25 years, competence problems do still arise for environmental measures.15 This fact underlines the error 11  Pigs Marketing Board v. Redmond, Case 83/78 [1978] ECR 2347. 12  In a nutshell, this means that the EU is only competent to legislate where the objective of a measure can be better achieved by EU rather than national measures and it is proportionate for the EU to act. 13  Most EU legislation is now enacted under the ‘ordinary legislative procedure’ governed by article 291 TFEU. In summary, proposals for EU legislation (which in the field of environmental law is mostly directives) are made by the EU Commission. The measure is enacted by the EU Council and European Parliament following their deliberation and agreement on the contents of the measure. 14  So, for example, the original EIA Directive (Directive 85/337/EEC) was adopted pursuant to harmonization powers and what is now article 352 TFEU. 15  In Case C-176/03 Commission v. Council [2005] ECR I-7879, the central issue was the EU’s competence to enforce EU environmental rules by resort to the criminal laws in the Member States. The ECJ concluded that even though “as a general rule, neither crimi-

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in concluding that the EU has unlimited scope to enact environmental measures. Even in areas where the EU’s competence may be thought to be exclusive, collaboration with the Member States is essential, not least because they are the primary regulatory and enforcement authorities for environmental law. Turning to the four freedoms in the EU, these are the central planks of EU law. The aim of free movement of goods, persons, services and capital is to achieve a single economic market within the EU in which disparities to trade are removed or kept to an objectively justified minimum. The ambition for economic integration and ironing out barriers to trade inevitably led the ECJ to consider challenges to national environmental measures and whether they interfered with the four freedoms.16 In turn, the ECJ’s decisions highlighted the need for specifically environmental laws at the EU level and so the EU’s powers in the area of economic integration and harmonization of the law came to provide a basis for environmental measures where competence did not otherwise exist.17 The EU doctrines of supremacy (or primacy) and direct effect are the twin pillars on which the relationship between EU law and the legal systems of the Member States is built. The EU treaties did not say in as many words that EU law trumps inconsistent national law,18 but the ECJ found this to follow from the nature of the EU treaties in Costa v. ENEL.19 At one level, little need be said about the implications of the supremacy of EU law, the essential doctrine being familiar in (federal) constitutional law. However, the application of the doctrine of supremacy (and also of pre-emption) is rarely straightforward when the policy interests of different levels of government collide and in some systems, environmental cases have been a fertile area for constitutional nal law nor the rules of criminal procedure fall within the [EU’s] competence”, where it was “necessary in order to ensure that the [EU] rules . . . on environmental protection are fully effective”, competence to create criminal sanctions existed (quoting from paras. 47 and 48 of the Court’s judgment). See now the Environmental Crime Directive (Directive 2008/99/EC). 16  See, for example, Case 302/86 Commission v. Denmark [1986] ECR 4607 (the ‘Danish Bottles’ case). 17  See, for example, Directive 2009/125/EC, establishing a framework for the setting of ecodesign requirements for environmentally friendly energy-related products, with a view to encouraging the free movement of such products throughout the EU. Despite the environmental implications of the measure, it was enacted under article 114 TFEU (dealing with harmonization in the interests of the single market). 18  Though there is now a “Declaration on Primacy of EU Law” attached to the EU Treaties, explaining the implications of supremacy from the EU’s point of view. 19  Case 6/64 [1964] ECR 585.

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­conflict.20 Recently, there is some evidence that environmental litigation in the EU will also be a scene of disputes about the scope of constitutional doctrines, including supremacy.21 The doctrine of ‘direct effect’ was introduced by the ECJ in its landmark decision in Van Gend en Loos in 1963.22 It means that where certain conditions are satisfied, EU rules can be enforced directly before national courts notwithstanding the absence (or deficiency) of domestic measures implementing EU rules. An arcane feature of EU legislation is that it goes by different names, being termed either a ‘regulation’, a ‘directive’ or a ‘decision’. Most EU environmental legislation is contained in directives which, unlike EU regulations, normally depend for their effect in the domestic legal order on domestic implementing measures. Probably unsurprisingly, there emerged the problem of what was to happen if a Member State did not implement a directive as it was required by EU law to do.23 In the 1980s, the ECJ drew a distinction between vertical direct effect and horizontal direct effect, the upshot of which was that provisions in EU directives could only be enforced ‘vertically’, that is, against the state or its agencies. In contrast, all other EU rules (such as provisions of the Treaties and EU regulations) which have direct effect have horizontal and vertical direct effect (so that they can be enforced against both the state and private persons). This limitation of directive provisions has been an issue in some environmental cases.24 However, the hard-edged nature of the problem is softened by the EU law principle of ‘effectiveness’, which includes a sub-principle of effective judicial protection. This has been relied on by the ECJ to require national courts and tribunals, so far as possible, to interpret all national rules to be compatible

20  Cf. New York v. US 505 US 144 (1992); Solid Waste Agency of N Cook Cty v. Army Corps of Engineers 531 US 99 (2001); and Schroeder, “Environmental Law, Congress and the Court’s New Federalism Doctrine” 78 Indiana LJ 413 (2003). 21  Cf. the recent decision of the UK Supreme Court in the HS2 case: R (HS2 Action Alliance Limited) v. Secretary of State for Transport [2014] UKSC 3. A particular problem with the case concerned the ECJ’s approach to the EIA and SEA Directives, which the UK Supreme Court found hard to accept. For discussion, see Denis Edwards, “HS2: The First Spike”, (2014) 26 Journal of Environmental Law 319. 22  N V Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratis der Belastingen, Case 26/62 [1963] ECR 1. 23  EU legislative instruments are provided for in article 288 TFEU, which also contains the obligation on the Member States to give effect to directives in domestic law. 24  See, for example, Wells, Case C-201/02 [2004] ECR I-723.

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with directive provisions.25 This is sometimes termed the ‘indirect effect’ of directives. The ECJ’s case law on direct effect and its application to directives is one feature of a wider ‘effectiveness’ principle which EU law guarantees. Starting with cases in the 1970s on the compatibility of national procedural law with EU law, in which the ECJ concluded that ‘national procedural autonomy’ is qualified by a requirement that the full effectiveness of EU law is ensured,26 the principle grew into one of general application. In practice, it has come to rest on article 4(3) TFEU, which obliges Member States, including their courts, to further the objects of EU law and refrain from action which hinders the objects of the EU. More recently, the principle has included a general principle of effective judicial protection which requires national agencies and courts to ensure that rights and remedies conferred by EU law are real and available in practice and not just theoretical. The high-water mark of the principle of effectiveness is the ECJ’s decision in Francovich v. Italy:27 if a person is caused loss by a State’s sufficiently serious breach of EU law—the clearest example of which would be the state’s failure timeously to give effect to a directive in domestic law—EU law enables the victim to sue the state for compensation. Accordingly, if a Member State (or a private person) breaches EU environmental measures in sufficiently serious ways, a damages remedy is directly derived from EU law.28 3

The Precautionary and Preventive Principles in EU Law

The precautionary principle appeared as a governing principle of EU environmental law in the Maastricht Treaty in 1993 and is now expressed in article 191 TFEU. The implications of the principle and what it means for decisionmakers has been explained in a number of guidance documents, notably the 25  See, for example, the Court’s decision in Marleasing Case C-106/89 [1991] 1 ECR 4135; and cf. Lesoochranarske zoskupenie VLK v. Ministerstvo zivotneho prostredia Slovenskej republiky. Case C-240/09 [2011] ECR I-1255. 26  Cf. Simmenthal II, Case 106/77 [1978] ECR 629. 27  Case C-6/90 [1991] ECR I-5375. 28  This would be in addition to any cause of action under the EU’s Environmental Liability Directive (Directive 2004/35/EC). The effectiveness of EU environmental law is now further supported by article 19 of the Treaty on European Union, which imposes on the Member States a duty to ensure effective remedies for breach of EU law, while the principle of effective judicial protection is now enshrined in article 47 of the EU’s Charter of Fundamental Rights.

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EU Commission’s 2000 Communication on the Precautionary Principle.29 The principle has been included in EU environmental legislation, even in some instruments enacted before the principle was expressed in the EU Treaties, and it has also been considered (if somewhat perfunctorily) on a few occasions by the ECJ.30 The Commission’s Communication explains the principle in predictable terms. In short, the principle should be part of “a structured approach to the analysis of risk which comprises three elements: risk assessment, risk management, risk communication”. More specifically: Recourse to the precautionary principle presupposes that potentially dangerous effects deriving from a phenomenon . . . have been identified, and that scientific evaluation does not allow the risk to be determined with sufficient certainty.31 Following identification of risks, the principle requires decision-makers to do an evaluation of the risk to society. This is said to be an “eminently political responsibility”, albeit one which must be transparent and “involve as early as possible and to the extent reasonably possible all interested parties”.32 Consultation with stakeholders is therefore the key and, as will be seen below, consultation is a linchpin of the relevant legislation in the field. As to the practical implications of the principle, the Communication says this: Where action is deemed necessary, measures based on the precautionary principle should be, inter alia: proportional to the chosen level of protection, non-discriminatory in their application, consistent with similar measures already taken, based on an examination of the potential benefits and costs of action or lack of action (including, where appropriate and feasible, an economic cost/benefit analysis), subject to review, in the light of new scientific data, and

· · · · ·

29  COM (2000) 1 (“Communication”). 30  For detailed consideration of the precautionary principle in EU law, see Fisher: Risk Regulation and Administrative Constitutionalism (Hart Publishing, Oxford; 2007). 31  Ibid., para. 4. 32  Ibid., para. 5.

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· capable of assigning responsibility for producing the scientific evidence necessary for a more comprehensive risk assessment.33

The Communication, which is a type of soft law, guidance document, is relevant to the construction of EU legislation wherever the precautionary principle features. In the leading case before the European courts on the implications of the principle for decision-making, Pfizer Animal Health SA v. Council,34 the EU court relied heavily on the Communication and made clear that there was very limited scope for judicial review of administrative decisions relying on the precautionary principle. The case concerned an EU ban on animal foodstuffs containing antibiotics. The ban was justified by reference to the precautionary principle, essentially in the light of scientific uncertainty about the dangers of greater human immunity to antibiotics. When the ban was challenged by Pfizer, the court in effect concluded that where there was evidence of scientific uncertainty, the precautions that were called for were a question for the wide discretion of the responsible political decision-makers. While it is arguable that Pfizer over-reached by presenting the challenge as a ‘right v. wrong’ dispute about the existence of the relevant risks, in a field where ‘hard-edged’ judicial review is unlikely to be attractive, nevertheless the court stresses the very limited scope for judicial oversight in this field. For example: It follows that in this case, in which the Community institutions were required to undertake a scientific risk assessment and to evaluate highly complex scientific and technical facts, judicial review of the way in which they did so must be limited. The Community judicature is not entitled to substitute its assessment of the facts for that of the Community institutions, on which the Treaty confers sole responsibility for that duty. Instead, it must confine itself to ascertaining whether the exercise by the institutions of their discretion in that regard is vitiated by a manifest error or a misuse of powers or whether the institutions clearly exceeded the bounds of their discretion.35 While accepting that actions to address “hypothetical risks”, namely those without any “verifiable” scientific evidence to support them, could not be justified by the precautionary principle, the assessment of—and therefore the 33  Ibid., para. 6. 34  Case T-13/99 [2002] ECR II-3305 (decision of the EU General Court—the first instance EU court). 35  Ibid., para. 169.

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weight to be attributed to—evidence was for the decision-maker. There was no need for the “reality and extent [of risks]” to have been “fully demonstrated”.36 It may be said that disaster risk presents less uncertainty than the risk from foodstuff ingredients considered in Pfizer. In particular, the expert evidence will often be more certain about the risks, even if the predictability of disaster remains unclear. It is likely, too, that any court challenge would be about omission, where decision-makers failed properly to consider disaster risk by reference to the precautionary principle. It could be said that there should be more scope for judicial oversight, relying on the precautionary principle, of administrative decisions which are claimed to ignore risk or which fail to engage effectively with the processes designed to address it. To confirm that proposition, there are some cases in which the EU courts have appeared more activist in reviewing decisions by reference to the precautionary principle. In Sweden v. Commission,37 the central issue concerned the failure of the authorities to consider, or consult the appropriate bodies, on the well-documented risk between exposure to the substance ‘paraquat’ and Parkinsons’ disease, before approval was given to the substance under the Plant Protection Products Directive (Directive 91/414/EEC). Relying significantly on the precautionary principle, the Court pointed to the relevant literature on the risks and concluded that the decision-maker had failed to show that paraquat was safe. At least in cases where there is some scientific evidence of adverse effects, the decision-maker must be ‘convinced’ that those effects have been considered and addressed. Indeed, in the context of the precautionary principle in the EU’s habitats directive,38 the Court has required decision-makers to be ‘convinced’. In Sweetman v. An Bord Pleanala,39 the Court’s Advocate General concluded that: . . . where there is uncertainty as to the existence or extent of risks . . .  [t]he competent national authorities may grant authorisation to a plan or project only if they are convinced that it will not adversely affect the integrity of [a protected] site . . . If doubt remains as to the absence of adverse effects, they must refuse authorisation.40

36  Ibid., para. 144 (emphasis added). 37  Case T-229/04 [2007] ECR II-2437. 38  Directive 92/43/EEC. 39  Case C-258/11, [2011] ECR __. 40  Opinion of A.G. Sharpston, at para. 50 (emphasis added). In most cases decided by the ECJ, the Court’s judgment is preceded by a fully reasoned Opinion of one of the Court’s Advocates General. They have the status of judges of the Court.

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In short, the EU courts have adopted their usual practice of varying the intensity of judicial review according to the interests raised by a case.41 In some cases more intense scrutiny has been brought to bear,42 so that the severe restraint on judicial review suggested in Pfizer should not be thought the invariable approach. As one commentator has put it, in EU law “the precautionary principle adapts proportionality to conditions of scientific uncertainty”.43 Nevertheless, as in other systems the evaluation of risks and the evidence on which risk assessment is based are matters primarily for the administrative authorities. The judicial role is inevitably limited. This will be as true for approaches to disaster risk reduction as with other risks where there is scientific uncertainty. The focus therefore needs to be on how decision-makers are properly guided to apply the precautionary and preventive principles. While these principles are governing norms of EU environmental law, more detailed guidance on the application of the principles to disaster risk reduction is essential. In the EU Commission’s first significant publication on the issue of reducing disaster risk, both principles are stated as being the essential basis for the approach to be taken by EU law. The 2009 Communication published by the European Commission, nominally from all of the EU institutions, sets out the EU’s approach to the prevention of natural and man-made disasters.44 Prompted by the 2005 Hyogo Framework for Action, the EU Council and the European Parliament called for the Commission to examine disaster risk reduction and the extent to which EU law and activities took account of it. The 2009 Communication was the first considered step by the Commission and it relies heavily on the precautionary principle. For example, risk assessment and, so far as possible, understanding the nature of disaster risk are described as central to the EU approach on prevention. In the first place, “a better understanding of disasters is a pre-requisite for developing efficient disaster prevention 41  For discussion of some of the case law, see C. Anderson, “Contrasting Models of EU Administration in Judicial Review of Risk Regulation”, (2014) 51 Common Market Law Review 425. 42  E.g. Artegodan, Case T-74/00 [2002] ECR II-49 (precautionary principle did not justify banning medicinal products with amphetamine-like agents). 43  Corkin, “Science, Legitimacy and the Law: Regulating Risk Regulation Judiciously in the EC”, (2008) 33 Eur LR 359, at p. 374 (emphasis added). Some commentators are more doubtful of any method in the EU courts’ approach, even doubting whether the precautionary principle is a justiciable standard at all. See Ian Forrester, “The Dangers of Too Much Precaution”, in Hoskins and Robinson: A True European: Essays for Judge David Edward (2003; Hart, Oxford). 44  COM (2009) 82 final.

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policies”.45 The Commission will promote a better exchange of information between the EU Member States so that lessons can be learned from previous disasters. Emphasis is placed on the economic implications of different types of disasters so that the “costs and benefits of different disaster prevention methods” can be properly assessed.46 The main tasks promoted by the 2009 Communication concentrate on identifying measures “which could be included in a [Union] strategy for the prevention of natural and man-made disasters”.47 It stresses the importance of “creating an inventory of information on disasters”, the purpose of which is to achieve a better understanding of disasters, this being “a pre-requisite for developing efficient disaster prevention policies”.48 The Communication goes on to discuss the need for spreading best practices, creating guidelines on “risk mapping” and encouraging further research.49 The Communication is shy of being prescriptive, no doubt reflecting the shared competence of the EU and the Member States in this area. This is clear when it comes to discussion of legislative initiatives, where the Communication is little more than hortatory. It stresses the need to take account of prevention concerns “during the planned reviews of a number of items of EU legislation”,50 but does not recommend any new legislation in this area. However, specifically with a view to earthquake impact reduction, the Communication promises to require Member States to incorporate European design codes for buildings and civil works into their national planning laws. In this regard, the Communication suggests that EU public procurement rules should be used, where appropriate, as a feature of disaster risk reduction initiatives. Finally, co-operation with other states and international organizations is stressed as an important feature of the way forward.51 The 2009 Communication was followed by several initiatives which confirm the EU’s increasing interest in disaster prevention and risk reduction. One of the most important is the revised EU civil protection legislation, the primary aim of which is to increase the EU’s and the Member States’ resilience to

45  Ibid., section 3.1, page 4. 46  Ibid. 47  Ibid., page 3. 48  Ibid., section 3.1 at page 5. 49  Ibid., section section 3.1.3 at page 6. 50  Ibid., page 8. The forthcoming amendments to the EIA Directive are one product of this process. 51  Ibid., section 4.

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crises and to anticipate, prepare for and respond to them.52 The legislation is based on article 196 TFEU, which is an example of EU competence to “support” Member State competence and encourages co-operation between the EU and the Member States in order to improve the effectiveness of preventing natural and man-made disasters.53 The new civil protection Decision makes provision for prevention of disasters, defining ‘prevention’ as “any action aimed at reducing risks or mitigating adverse consequences of a disaster”. Article 5 of the Decision requires the EU and the Member States to engage in risk assessment and knowledge sharing, in addition to imposing reporting obligations on the Member States as to what they are doing with a view to risk assessment, risk reduction and learning from experience. The Decision’s provisions in these respects resonate with some of the objectives in the 2009 Communication, in particular aiming at achieving consistent best-practice on disaster risk reduction throughout the EU. As already mentioned, the EU’s review of the 2011 EIA Directive has led to introduction of a disaster risk assessment element for EIA. This is discussed further below. In contrast, however, and despite what the 2009 Communication said, the revised EU public procurement directive does not contain any new provisions on disaster risk reduction as being a relevant consideration in public procurement exercises governed by EU law.54 Most recently, the EU Commission published a further Communication setting out the EU’s aims for the “post-2015 Hyogo Framework for Action”, namely the Sendai Framework.55 While going over much of the same ground as the 2009 Communication and reviewing the EU’s efforts in the intervening years, no new initiatives are promised. Rather, the emphasis is placed on improving the effectiveness of existing measures. This is accepted as being a continuing problem, with the Communication noting that “significant implementation gaps remain”.56 In particular, “most countries continue to have difficulties integrating risk reduction in public investment planning, urban development, spatial planning and management, and social protection”.57 52  Decision 1313/2013/EC on the Union Civil Protection Mechanism. 53  Article 196 TFEU was introduced into EU law by the 2009 Treaty of Lisbon. Previously, the EU’s civil protection legislation (the predecessor of Decision 1313/2013/EU) was based on article 352 TFEU (the flexibility clause). 54  See Directive 2014/24/EU; cf. articles 18(2) and 57(4)—breach of environmental law obligations is a ground for exclusion from tendering for public contracts. 55  COM (2014) 216: the post 2015 Hyogo Framework for Action: Managing risks to achieve resilience. 56  Id., page 3. 57  Id., page 4.

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The 2014 Communication discusses the EU’s aims for the Sendai framework both for the EU itself and the EU’s contribution to increasing resilience in developing countries which are prone to crises.58 It is sometimes not clear whether the continuing challenges for disaster risk reduction identified by the 2014 Communication are all shared by the EU and its Member States or are more for developing countries. Yet, as we shall see in section IV below, it is clear from a consideration of EU environmental law that at least some of the “difficulties integrating risk reduction” into the law are present in the EU itself. It is hard to draw any firm conclusions about the impact of the precautionary and preventive principles in EU law and the objective of disaster risk reduction. Certainly, both principles are at the forefront of EU discussion of the problems and are relied on as justification for the need for more initiatives at the EU level. However, beyond providing for greater awareness of disaster risk throughout the EU, stressing the need for better information and improved collaboration, and relying on all of this as a strategy for disaster risk reduction, it is difficult to point to any concrete implementation of the principles in EU legislation with a view to disaster risk reduction. It may be that the absence of sufficient cross-border experience of disasters gives rise to insufficient initiative for appropriate measures. In other words, the EU legislature is more reactive than pro-active in this area, a point which possibly emerges from the experience with the Seveso Directive. 4

The Seveso Line

The Seveso Directive was the earliest EU legislation addressing disaster risk.59 There have in fact been three Seveso Directives. The first Seveso Directive was enacted in 1982,60 as a response to the accident in 1976 in the Italian town of Seveso, where an escape of a toxic chemical as a result of an industrial accident had catastrophic effects on the wildlife and human health in the local area, the implications of which have lasted for decades afterwards. The first Directive was amended in 1996, becoming ‘Seveso II’,61 which was itself amended and

58  For the latter, see COM (2009) 84, a Commission Communication addressing EU strategy on disaster risk reduction in developing countries. 59  For discussion of the Seveso Directive, see Kirchsteiger (ed.): Risk Assessment and Management in the Context of the Seveso II Directive (Elsevier, 1998). 60  Directive 82/501/EEC. 61  Directive 96/82/EC.

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recast as ‘Seveso III’ in 2012.62 The current law is contained in the Seveso III Directive. In the present context, the Seveso Directive is interesting in several respects. First, the original Directive was enacted at a time when the EU had no express competence over either the environment or the subject of health and safety at industrial (non-nuclear) installations.63 It therefore needed unanimity amongst the Member States for its enactment, a fact which probably explains, relative to the provisions made by the later Directives, the modest provisions in the first Directive. In contrast, Seveso II and Seveso III were enacted pursuant to the EU’s competence over the environment, which generally permits measures to be enacted by a majority of the Member States. While there may be a number of reasons for the subsequent directives containing more extensive provisions, the fact that the environment had become an express competence of the EU by that time may have contributed. Secondly, the precautionary and preventive principles inspire the first Directive, even though when it was enacted they were not, as such, legal principles in EU law. For example, article 4 of the first Seveso Directive bound the authorities to require operators of industrial installations to “identify major accident hazards” and to adopt safety measures and provide staff training regarding them. The Directive also prescribed procedures to be followed in the event of an accident, with a view to containing the damage. Thirdly, accident planning and the need for a ‘paper trail’ have always been key to the Directives. As they have been updated over the years, the regulatory impact of the Seveso Directive has increased, with stricter standards being imposed on affected industries. In summary, the Seveso Directive aims at preventing major accidents which involve dangerous substances. It recognises that prevention is alone insufficient and therefore requires accident planning with the aim of avoiding, to the maximum extent possible, the worst consequences of accidents. Planning for 62  Directive 2012/18/EU (to which future references are made). 63  For this reason, the first Seveso Directive was enacted principally pursuant to what is now article 352 TFEU (a type of ‘necessary and proper’ clause). The mention of nuclear installations allows the observation that the nuclear industry in the EU is subject to regulation by the EU derived from powers contained in the original EURATOM Treaty of 1957 (Euratom being one of the EU’s three founding ‘communities’). Interestingly, not least given that it was in 1957, article 37 of the Euratom Treaty conferred environmental protection powers on the EU institutions concerning nuclear waste. A raft of Euratom legislative deals with health and safety in the nuclear industry, including provisions on how to prevent and deal with emergencies.

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accidents, accident preparedness and accident response are the key elements of the Directive. The Directive governs establishments where dangerous substances are present and categorizes establishments according to the amount of dangerous substances that may be present.64 The larger quantities of dangerous substances that are present, the more stringent the requirements which the Directive imposes on the establishment. Much of the Directive’s focus is on notification requirements and paperwork: establishments must have an accident prevention policy, some must compile regular safety reports, there must be internal emergency response plans and also procedures to be followed in the case of accidents, including notification of the public.65 Importantly, the Seveso Directive now includes public participation in decision-making for individual projects.66 The Directive also includes requirements about making available to the public information held by establishments pursuant to the Directive and access to justice requirements where disputes about access to information arise.67 These provisions give the Directive the feel of a modern environmental measure, being in line with the requirements of measures such as the EIA and SEA Directives. Following the Deep Water Horizon disaster, the EU Commission proposed an EU Regulation to govern the safety of offshore oil and gas operations, in effect extending the Seveso requirements to this sector.68 A number of Member States, notably the UK, were not happy with this proposal. A striking feature of the Commission’s proposal was that it was for an EU Regulation rather than a directive. The Commission proposal justified this on the grounds that the measure needs to operate directly on the industry and therefore “a more level playing field” must be ensured. A Regulation had the advantage of ensuring quicker regulation and consistency in a high risk area, with precedents drawn from “narrower high risk sectors” such as civil aviation, which are mostly governed at the EU level by Regulation. The Commission lost the battle with opposing Member States on the form of the proposed legislation. However, in June 2013 a new Directive on the safety 64  Directive 2012/18/EU, article 3. 65  Ibid., articles 5, 7, 8 and 10. 66  See Article 15; a change made by Seveso III. This includes public participation in planning for new establishments governed by the Directive and any changes to an existing establishment which could increase disaster risk. In substance, the openness and public participation provisions mirror those in the EIA Directive. 67  Article 23. 68  COM (2011) 688 final.

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of offshore oil and gas installations was enacted.69 The Directive imposes best practice on the offshore oil and gas industry in a number of areas—from environment, through pollution control to health and safety at work—directly by EU law. It aims to achieve consistent best practice for major hazards control by offshore oil and gas operations. To a large extent, the Directive imposes the Seveso Directive’s scheme of accident prevention, planning and response on the offshore oil and gas sector. The Directive also applies the main health and safety at work provisions of EU law to offshore installations.70 And as under the Seveso Directive, the new Directive includes provisions on public participation in key decisions.71 The Seveso Directive puts in place an elaborate model of risk assessment and disaster planning, albeit on a sectoral basis and limited to the risk of industrial accidents. There is so far no comparable measure dealing with disaster risk in EU environmental legislation. In the light of experience under the Seveso Directive and industry acceptance of it, it may be asked whether EU environmental law should approach natural disaster risk in a similar way to the Seveso Directive, placing a greater regulatory burden on both government and the private sector to assess disaster risk and identify how it can be reduced. 5

EU Environmental Legislation and Risks from the Environment

EU legislation on the environment now covers a wide field. For present purposes, the measures may be grouped in four categories: first, legislation on impact assessment, both of projects by way of an environmental impact assessment (“EIA”) and of “plans and programmes” by strategic environmental assessment (“SEA”), both generally and, in particular, with respect to the marine environment; secondly, horizontal protection measures (e.g. concerning surface territorial waters (including flood risk),72 regulating waste73 and regulating industrial emissions);74 thirdly, measures addressing specific 69  Directive 2013/30/EU. 70  See recital (18). The Directive makes clear that it is supplemental to EU law on health and safety at work (contained in the framework Directive 89/391 EEC). 71  Article 5. 72  The EU has a Water Framework Directive (Directive 2000/60/EC) and a Floods Directive (Directive 2007/60/EC). 73  The Waste Framework Directive (Directive 2008/98/EC). 74   The Industrial Emissions Directive (Directive 2010/75/EU). This directive “recasts” Directive 2008/1/EC, the Integrated Pollution Prevention and Control (“IPPC”) Directive, which it replaces. The 2008 IPPC Directive itself codified and replaced Directive 96/61/EC

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e­ nvironmental themes, such as protection of habitats and species,75 protection of birds76 and protection of the marine environment;77 and fourthly, measures dealing with liability for environmental wrongs.78 Many of the current instruments started life in earlier versions which have since been updated and recast, in some cases to reflect the EU’s efforts to address climate change.79 Few measures expressly deal with risks to life, the environment or development projects from the environment. The first measure specifically to address natural disaster risk is the Floods Directive.80 More recently, the EU Commission has placed more emphasis on disaster risk, as promised by the 2009 Communication and increasingly prompted by EU climate change policy.81 Significantly, amendments to the EU’s EIA Directive are now pending which will require EIAs to include an assessment of the vulnerability of proposed projects to natural disasters. In the light of these developments, three EU measures are particularly worth considering: the Floods Directive, the EIA Directive and the SEA Directive. (the first IPPC directive). The Directive aims to be a code of law regulating industrial emissions. In particular, chapter 3 of the Directive deals with emissions from large combustion plants, setting up a scheme of permitting and monitoring of all industrial emissions, including from large combustion plants. The Directive ‘rolls out’ its requirements for large combustion plants, so that the ‘emission limit values’ specified in article 30 will not apply to all large combustion plants until 31.12.23. The applicable provisions are complex and set out in articles 28–35 of the Directive. 75  The Habitats Directive (Directive 1992/43/EEC). 76  The Birds Directive (Directive 2009/147/EC). 77  The Marine Strategy Framework Directive (Directive 2008/56/EC). 78  The Environmental Liability Directive (Directive 2004/35/EC). The main purpose of the Directive is to “establish a framework of environmental liability according to the polluter pays principle”, with a view to preventing and remedying damage to the environment. Note that it does not apply to damage from nuclear incidents (to which the Euratom Treaty applies). 79  Notably the 2010 Industrial Emissions Directive, which is part of the EU’s strategy to fulfill Kyoto targets. 80  Directive 2007/60/EC but see article 107(2)(b) TFEU, which permits an exception to the EU prohibition of state aid when the aid is used for disaster relief; however, nothing is said about aid for prevention. 81  The EU, along with its Member States, is a party to the Kyoto Protocol. This has led to a number of EU climate change measures, notably Directive 2009/29/EC, on a greenhouse gas emissions trading scheme, various measures on renewable energy, carbon capture and storage and the energy performance of buildings, in addition to a substantial body of guidance (e.g. Commission Communication A Roadmap for Moving to a Competitive Low Carbon Economy in 2050 (COM (2011) 0112 final). For further discussion see Fisher, Lange & Scotford: Environmental Law (Oxford, 2013), pp. 645–656.

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The Floods Directive deserves attention because it seeks to address one type of natural disaster risk. Its method of doing so lends itself to comparison with the Seveso Directive, notably in its emphasis on risk planning and its failure to impose any material burden on the private sector. The EIA Directive must be considered because of the pending changes which will include disaster risk assessment as part of EIAs. It therefore presents an attempt by the EU legislature to incorporate a general approach to disaster risk assessment (and implicitly, reduction) into EU environmental legislation. Yet this is not, so far, carried over into the SEA Directive, where it might be said that disaster risk assessment ought to be imperative. What emerges from consideration of the Floods Directive, the EIA and SEA Directives is a lack of a systematic approach to disaster risk reduction in EU environmental law. This is confirmed by important features in—and equally importantly, omissions from—other EU environmental legislation. In particular, the Habitats Directive and the Industrial Emissions Directive (the key objective of which is a more holistic approach to integrated pollution prevention and control), present difficult issues for a strategic approach in EU environmental law to disaster risk reduction. As regards the Habitats Directive,82 one of its main provisions is article 6(3). This applies both the precautionary and preventive principles to any “plan or project” not directly connected to a protected site but which is “likely” to have a “significant” effect that is adverse to the “integrity” of the site. While natural disaster risk is not expressly covered in the Directive, the ECJ’s approach to interpreting the terms “likely to have a significant effect” and “not adversely affect the integrity of the site”, is ample enough to include it.83 Yet, almost in the next breath, article 6(4) of the Directive permits authorities to override the results of an article 6(3) assessment for “imperative reasons of overriding public interest” (the IROPI exception). In a leading study of the IROPI exception, the conclusion was that the “overwhelming impression from the opinions issued by the [EU] Commission [in this area] is that Member States are able, with relative ease, to invoke economic arguments to overcome [article 6(3)

82  Directive 92/43/EEC, dealing with the conservation of natural habitats and of wild fauna and flora. Along with the Wild Birds Directive (Directive 2009/147/EU), it constitutes the main body of an EU system of wildlife protection. The Directive applies to both the territories of the Member States and their Exclusive Economic Zone: see Commission v. UK, Case C-6/04 [2005] ECR I-9017, especially at paragraph 119. 83  See, for example, Waddenzee, Case C-127/02 [2004] ECR I-7405, at paragraphs 56–57 (“likely” means “possibly”); and Sweetman v. An Bord Pleanala, Case C-258/11 [2011] ECR __ (mentioned in section 3 above).

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of the Directive]”; “conservation interests can be [easily] overridden”.84 The point is that even where the emphasis in EU environmental legislation is placed on the precautionary principle, economic development and other public interest considerations can, apparently easily, override identified risks. Given the uncertainty and remoteness of risk to a project (or the implications of it) posed by natural disasters, authorities will likely be able to brush the risks aside, relying on other public interest considerations to do so. If this is the position in practice with an EU measure which has the precautionary and preventive principles at its core begs the question of how the introduction of disaster risk assessment as a feature of other measures, such as the amended EIA Directive, will work. Some recent experience with the Water Framework Directive and the Industrial Emissions Directive highlights the fact that disaster risk reduction has more often been overlooked by the legislature, even when legislation has been codified and strengthened in light of climate change concerns. The Industrial Emissions Directive was adopted in 2010 to take a new approach to regulate emissions from most significant industrial processes.85 One of the aims of the Directive is to ensure an integrated approach to industrial emissions discharged into water, air or soil. Permits are required for anyone who is engaged in such emissions and the Directive prescribes the minimum contents of conditions which must be imposed on industrial operators. Among these are “measures relating to conditions other than normal operating conditions such as start-up and shut-down operations, leaks, malfunctions, momentary stoppages and definitive cessation of operations”.86 Disaster risk is not, as such, referred to. The Water Framework Directive (which governs water quality) does not even have material provisions imposing ‘end of life’ obligations on polluters. Nor does the EU Priority Substances Directive,87 which imposes a requirement for Member States to apply particular environmental quality standards to bodies of surface water. There is therefore a gap in the relevant EU legislation 84  Clutten and Tafur, “Are Imperative Reasons Imperiling the Habitats Directive? An Assessment of Article 6(4) and the IROPI Exception”, in Jones (ed.): The Habitats Directive: A Developer’s Obstacle Course? (2012, Hart; Oxford). 85  2010/75/EU. The Industrial Emissions Directive replaces (and updates and recasts, to fit in with the EU’s climate change commitments) the EU’s Integrated Pollution Prevention and Control (IPPC) Directives. 86  Directive 2010/75/EU, article 14(f). Note the term “other than normal operating conditions”: could this include the consequences of a natural disaster? 87  2008/105/EC.

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which the Industrial Emissions Directive seeks to fill but without any consequential amendments to other environmental legislation which is specifically applicable to the affected sector (of water, air or soil). This piecemeal approach to legal reform and addressing particular risks can cause courts great difficulty when they are faced with multiple pieces of EU legislation pulling in different directions for competing solutions to a legal problem.88 As we now turn to look at EU law’s approach to disaster risk assessment in three environmental law measures, it is necessary to remember that the optimal approach is one which is systematic rather than piecemeal or addressing single or particular risks alone. 5.1 The Floods Directive The first EU measure specifically on natural disaster risk assessment and reduction is the Floods Directive.89 The main objective of this directive is to require the Member States to assess and manage flood risks within their territories from rivers and the sea. Article 7 of the Directive requires national

88  Consider, for example, Scottish Environment Protection Agency & Others v. Liquidators of the Scottish Coal Company 2014 SC 372 (“SEPA”). In this case the Scottish Court of Session was faced with the insolvency of a mining company which was a major polluter. While insolvency is not a ‘natural disaster’, it is often a man-made one. Moreover, economic difficulties and their implications are not unusual or unforeseeable, so that inadequate legal provision for them in environmental legislation suggests an incomplete approach to risk regulation. The issues raised in SEPA have arisen elsewhere (cf. Ohio v. Kovacs 469 US 274 (1985); and see Neiman, “International Insolvency and Environmental Obligations: A Prelude to Resolving the Conflicting Policies of a Clean Slate versus a Clean Site in Transnational Bankruptcies”, 8 Fordham J of Corporate and Financial Law 789 (2003)) but this was apparently the first occasion in the EU when a court had to address how EU environmental law requirements were to be reconciled with the law of insolvency. The Court gave priority to the EU environmental obligations over the rules and procedures in the domestic law of insolvency but this was not an inevitable result (for example, the English decisions appeared to point in the other direction). It should also be said that the implications of “definitive cessation of operations”, whether as a result of insolvency of a polluter or otherwise, can have implications many years later, including following a natural or man-made disaster. As the recent, summer 2015 disaster for the Animas river in Colorado shows, man-made toxic waste (in that case from mining decades ago) may cause a natural disaster years after the activities ceased: see After Animas River Spill, Experts warn of next disaster’, The Guardian, 17th August 2015 (http://www.theguardian .com/environment/2015/aug/17/animas-river-mine-spill-experts-next-disaster). 89  Directive 2007/60/EC. The Seveso Directive, discussed in section 4 above, while in a broad sense an ‘environmental’ measure, is concerned with man-made risks to the environment.

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authorities to establish flood risk management plans by 2015 and article 7(3) of the Directive expressly links to the Water Framework Directive (“WAD”), in that the flood management plans must take into account the environmental objectives of the WAD (in essence, clean water) and the risk to these objectives posed by flooding and coastal erosion.90 As recitals (2) and (4) in the preamble to the Floods Directive explain, the directive is inspired not only by the damaging effects of floods but also by increasing flood risks as a result of climate change. Indeed, since 2000 several large European countries (France, Germany and the UK among them) have experienced devastating floods. When the WAD was enacted in 2000, it required river basin management plans to be drawn up. However, the focus of these was on ensuring that surface waters were kept clean and not contaminated. Assessment of flood risk was not included among the features of these plans. Experience following the WAD identified a gap in terms of flood risk assessment and this is now filled by the Floods Directive.91 It is not possible to say whether the aims and objectives of the Floods Directive, and the legislative process leading up to its enactment, prompted wider reflection on the need for EU environmental measures to have a theme of disaster risk assessment. However, it was followed in 2009 by the disaster risk Communication, which mentions the Floods Directive as an example of EU law’s “set of instruments” on disaster risk assessment and “preparedness”.92 Yet the Directive does not mention the precautionary principle as a feature of its provisions, although it is clear that the preventive principle is a thread running through it. This starts with the Directive’s preamble, which stresses the need for the development of water and land use policies always considering “the potential impacts that such policies might have on flood risks and the management of flood risks”.93 The Floods Directive includes the following key provisions on risk assessment and management. First, by the end of 2011, the responsible national authorities must have completed a preliminary flood risk assessment for each river basin district within their territories. This assessment must provide an assessment of potential risks “based on available or readily derivable informa90  For implementation of the Floods Directive in a common law setting, see the Flood and Water Management Act 2010 (for England and Wales). 91  Recital (4) in the preamble to the Floods Directive makes clear that this is a key reason for the directive. 92  See the third paragraph, in the introduction to the Communication (COM (2009) 82 final, page 3). 93  Directive 2007/60/EC, recital (9).

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tion” including historical data on floods and “impacts of climate change on the occurrence of floods”.94 On the basis of the preliminary assessment, article 5 of the Directive requires the authorities to identify the areas where potential significant flood risks exist. Secondly, the authorities must draw up flood hazard maps.95 These must cover the areas which have been identified as at risk from flooding, indicating those areas which have a low probability of flooding (including from ‘extreme event scenarios’), areas with a medium probability of flooding and areas with a high probability of flooding. The maps must take each scenario in turn, showing the extent of flood risk, potential water depth and the scope of the potential adverse consequences (such as the number of people potentially affected). Significantly, article 6(5)(c) requires the map to highlight the flood risk to major installations covered by the Industrial Emissions Directive, so as to identify the risk that a flood could accidentally lead to one of them causing pollution, in particular to any protected sites (such as a protected wildlife habitat). Thirdly, on the basis of the maps, article 7 requires the authorities to produce flood risk management plans. These must set out “appropriate objectives for the management of flood risks” and focus on: the reduction of potential adverse consequences of flooding for human health, the environment, cultural heritage and economic activity and, if considered appropriate, on non-structural initiatives and/or on the reduction of the likelihood of flooding.96 It can be seen from this that the contents of a flood management plan depend to some extent on an exercise of discretion by national authorities. In particular, article 7(2) of the Directive leaves it to the authorities to decide whether measures aimed at ‘reduction of the likelihood of flooding’ should be a feature of a flood risk management plan. This is likely to mean that only areas identified at higher risk will have provision for measures aimed at reducing the risk. In itself, this is not illogical but it will mean that risk from extreme events and the increased risk of such events as a result of climate change are not a necessary feature of flood risk management plans. However, article 7(3) stresses that the plan must address all aspects of flood risk, including prevention and, where appropriate, the promotion of sustainable land use practices

94  Floods Directive, article 4. 95  Floods Directive, article 6. 96  Floods Directive, article 7(2) (emphasis added).

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and improvement of water retention (for example, by restricting tarmacking of gardens). So there is at least a nod to unforeseen risks.97 Fourthly, article 10 of the Directive provides for public participation in the whole process of flood risk assessment and flood management. Article 10(2) emphasises the continuing nature of public participation: the active involvement of interested parties is to be encouraged “in the production, review and updating” of flood risk management plans. It is not possible closely to examine the Floods Directive here, nor other EU environmental legislation, so as to produce an audit of the law’s provision on disaster risk reduction. Rather, the Floods Directive gives us an example of one model which is derived from the precautionary and preventive principles. In some respects—in particular, the emphasis on process, paperwork and shared risk—it is sophisticated. In others—for example, the terminology on “extreme event scenarios” in article 6(3)(a) and its equation with low flood risk probability—the Directive might be said to be self-defeating. Nevertheless, by its nature risk is uncertain and, as a starting point for an EU measure on disaster risk assessment and reduction, the Floods Directive is an important development. Of wider significance is how, starting with the Floods Directive, the EU legislature has turned its mind to natural disaster risk assessment as a necessary feature of some other EU environmental law measures. This is now apparent from pending changes to the EU’s landmark EIA Directive. It might have been thought that both EIA and SEA would be pivots for assessment of risks from natural disasters but for the EU this is new and still developing territory. 5.2 EIA Directive 2011/92/EU is the EU’s Environmental Impact Assessment (“EIA”) Directive. This directive is a codifying directive, repealing Directive 85/337/ EEC and codifying subsequent amendments to that directive. The Directive was adopted under article 192 TFEU and requires the effects of certain public and private projects on the environment to be the subject of an EIA before approval is given for them. The EIA Directive defines certain larger scale projects in annex I to the Directive as always giving rise to the need for an EIA: for example, nuclear 97  Note also that a ‘federalism’ principle is included in article 7 of the Directive, which means that flood risk from or to waterways in neighbouring states should be considered: article 7(4) emphasises that plans cannot include measures which increase upstream or downstream flood risks in other Member States which share the same river basin or sub-basin, at least not without co-ordination with the other state(s), as provided for in article 8.

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installations, crude oil refineries and thermal power stations above certain thresholds, and any changes or extensions to such projects. Projects not falling within annex I to the Directive will still require an EIA if, following a screening process undertaken by the national authorities, their scale and effects are such that an EIA is called for. Unsurprisingly, in light of the administrative discretion involved in the screening process, a large volume of case law both at the EU and national levels has developed on when the law requires an EIA where it is not obligatory. As elsewhere in the world, EIA is “procedural” in nature.98 Nonetheless, the ECJ has relied on the EU law principle of effectiveness to insist on EIAs being “effective”, which has led to the Directive having some substantive content. For example, in the Bozen case,99 one issue was whether an EIA was required of an airport development where it was to be used for both civilian and military purposes. The Directive provides an exception for “national defence” projects. Was an EIA required? The ECJ ruled that it was: “only projects which mainly serve national defence purposes may . . . be excluded”.100 Similarly, in Wells,101 the ECJ made clear that in a multi-stage project, if the potential environmental effects can only be known at a later stage in the project, an EIA must be done then, in addition to any assessment done at an earlier stage. Only in this way could the EU principle of effectiveness be complied with. The first EIA Directive and the current, 2011 version have no express provision on disaster risk assessment. Accordingly, current EIAs and all those done in the past do not, as a matter of law, require the environmental statement to contain an assessment of the vulnerability of the project to risks from the environment, such as floods or earthquakes, and what the implications for the environment of the project, in the light of those risks might be. This is now about to change. Directive 2014/52/EU amends the EIA Directive in material respects. The key provision is introduction of a new article 3 of the EIA Directive, which is recast to include a requirement for EIA to assess disaster risk. Article 3 of the EIA Directive will now read (so far as material): 1 The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, 98  Cf. Case C-431/92 Commission v. Germany [1995] ECR I-2189, Opinion of Advocate General Elmer at para. 35: EIA is “essentially of a procedural nature”. 99  WWF v. Autonome Provinze Bozen, Case C-435/97 [1999] ECR I-5613. 100  Ibid., para. 65 (emphasis added); the point being that it is not a bright line rule. 101  Case C-201/02 [2004] ECR I-723.

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the direct and indirect significant effects of a project on the following factors: (a) population and human health; (b) biodiversity . . . (c) land, soil, water, air and climate; (d) material assets, cultural heritage and the landscape; (e) the interaction between the factors referred to in points (a) to (d). 2 The effects referred to in paragraph 1 on the factors set out therein shall include the expected effects deriving from the vulnerability of the project to risks of major accidents and/or disasters that are relevant to the project concerned.102 The purpose of the new article 3(2) is explained clearly in the new Directive’s preamble. First, “environmental issues, such as . . . climate change, and risks of accidents and disasters, have become more important in policy making [and] should . . . constitute important elements in assessment and decision-making processes”.103 Secondly: In order to ensure a high level of protection of the environment, precautionary actions need to be taken for certain projects which, because of their vulnerability to major accidents, and/or natural disasters (such as flooding, sea level rise, or earthquakes) are likely to have significant adverse effects on the environment. For such projects, it is important to consider their vulnerability (exposure and resilience) to major accidents and/or disasters, the risk of those accidents and/or disasters occurring and the implications for the likelihood of significant adverse effects on the environment.104 The new Directive also makes consequential amendments to the annexes to the EIA Directive. These provide that a relevant factor in screening projects to determine whether an EIA is necessary is “the risk of major accidents 102  Directive 2014/52/EU, article 1(3), amending the EU’s EIA Directive (Directive 2011/92/ EU) by inserting a new article 3 into the EIA Directive, with effect from May 16th 2017 (see article 2(1) of the 2014 Directive). 103  Directive 2014/52/EU, recital (7) in the preamble. 104  Ibid., recital (15) of the preamble. Recital (14) also explains that new article 3(2) is necessary to align the EIA Directive with the EU Commission’s 2009 disaster risk communication and the EU Council’s wish to follow the Hyogo Framework.

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and/or disasters which are relevant to the project concerned, including those caused by climate change”:105 and the environmental statement must include “a description of the expected significant adverse effects of the project on the environment deriving from [its] vulnerability to . . . disasters”.106 While these amendments to the EIA Directive put disaster risk assessment, and proposals to reduce disaster risk, on the EIA agenda, there are some obvious deficits with the arrangements. First, disaster risk assessment will continue to depend on whether a proposed project is subject to EIA at all. There is no free-standing requirement to risk assess all development projects for vulnerability to natural or accidental disaster. This is evidently a different approach which is being taken from that adopted in the Seveso Directive (where both prevention of and planning for accidents is central to the regulatory objective). Secondly, determining the scope of the EIA (“scoping”) will continue to rest with a developer. The authorities may insist that certain matters are included within an environmental statement and, presumably, if they are concerned about the vulnerability of a project to disasters of one sort or another, they will insist that the disaster risk is assessed. Equally, developers who are aware of known risks are likely to wish them to be addressed, not least as part of wider obligations or risks to which they are exposed, for example, from complying effectively with health and safety legislation.107 However, if the l­ikelihood 105  New Annex III (1)(f). Accordingly, for projects where an EIA is not mandatory in EU law, the risk to the project from natural and/or man-made disasters is a factor to consider when deciding whether the effects of the project on the environment are so significant as to require an EIA. 106  New Annex IV (8). 107  Although the focus of this paper is on risk assessment and reduction, it is worth mentioning that the ECJ’s approach to both the Waste Framework Directive (in particular, in the wide definition given to ‘waste’) and the Environmental Liability Directive place a strong burden on the private sector. For example, in Commune de Mesquer v. Total France et al., Case C-188/07 [2008] ECR I-4501, the ECJ ruled that hydrocarbons accidentally spilled at sea, then mixed with water and washed up along the coast constitute “waste” for the purposes of the EU’s waste legislation. The case dealt with liability for the costs arising from such pollution. In summary, the EU legal regime was found to be additional to the international legal regime (the 1969 International Convention on Civil Liability for Oil Pollution and 1992 Protocol), in part for reasons explained by limited EU competence in the field. While the additional liability under the EU waste legislation depended on fault, the Court made clear that the “previous holder” of the waste had to be understood widely. It could include, for example, the charterer of a vessel from which a spillage occurred. This was the only result consistent with the ‘polluter pays’ principle—in short, so long as it could be said that the polluter has in some causative sense been responsible for or contributed to the spill, he will be liable. Similarly, in Raffinerie Mediterranee, Case

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of a natural disaster is assessed as being low, its implications are unlikely to be assessed.108 Obviously, if there is no history of earthquakes or volcanoes in the particular place, it would be superfluous to insist that risks from such events are assessed. However, flooding and extreme weather are less predictable, which suggests that disaster risk and contingency measures should always be a part of an EIA. Moreover, it is not impossible that activities with uncertain long-term consequences (e.g. fracking) are increasingly taking place in the environment and could provoke events nearby which, up until now, were thought inconceivable. Yet it is far from clear that the amendments to the EIA Directive will prompt responsible authorities to take a wider view of possible risks which ought to be assessed. Thirdly, unlike with the Floods Directive, which dovetails with the Water Framework Directive in an attempt at systemization, the same is not true with the amendments to the EIA. True, the Commission’s 2009 disaster risk Communication seeks to promote a system of risk assessment and, no doubt, both EU and national guidance will also seek to do so. However, there is no attempt in the EIA amendments to link to other EU measures, such as the Floods Directive.109 On the other hand, the EU’s EIA Directive includes extensive provision for public participation in the EIA process and this will contribute to transparent and open consideration of the implications of disaster risk when proposed projects are being considered for development consent. The original, 1985 EIA C-378/08 [2010] ECR I-1919, the ECJ concluded that the Environmental Liability Directive requires the national authorities to have plausible evidence capable of justifying causation of damage, such as the fact that the operator’s installation was located close to the pollution found and that there was a correlation between the pollutants identified and the substances used by the operator in connection with his activities. There is therefore a high burden of proof on national authorities. However, the Court also said that if pollution was diffused and no causal link could be established, and the Directive otherwise applied, certain operators of the installations to which the Directive applied could be held strictly liable for environmental damage. 108  Cf. David Lawrence, “The Need for EIA Theory Building” (1997) 17 Env Impact Assessment Review 79 (discussing, inter alia, the problem of uncertainty in EIA). In England and Wales, it is also hard to challenge exercises of authorities’ discretion in relation to the EIA process, largely because of the highly deferential approach which the courts adopt to matters of ‘weight’ to be given to assessments and their conclusions: see, for example, R (Evans) v. Sec of State for Communities and Local Government [2013] EWCA Civ 87 and cf. Commission v. UK, Case C-508/03 [2006] QB 764. 109  There is a link in article 2(2) of the EIA Directive to the Habitats Directive but this is only concerned with overlapping EIA and habitats assessments. It is not about the scope of the EIA per se.

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Directive was very thin on the involvement of the public in the EIA process, amounting to little more than notification of development proposals and an opportunity for members of the public to give their opinion.110 No obligation of due consideration by the authorities was provided for. This changed radically through amendments to the Directive in 2003,111 the aim of which was to bring EU law into line with the Aarhus Convention,112 to which the EU had become a party.113 Article 6 of the EIA Directive now contains a strong provision on the extent of the consultation and information gathering obligation of national authorities. First, all authorities “concerned, by reason of their specific environmental responsibilities” with a proposal for development must be given all relevant information and afforded an opportunity to express their opinion. Secondly, 110  See article 6 of Directive 85/337/EEC. 111  By Directive 2003/35/EC, inserting a new article 10a into Directive 85/337/EC and also amending the IPPC Directive (Directive 96/61/EC), now the Industrial Emissions Directive (Directive 2010/75/EU). 112  U NECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (signed at Aarhus, Denmark in 1998, in force since October 2001). Aarhus contains three key elements relevant to environmental law: principles governing public access to environmental information; public involvement in decision-making affecting the environment; and access to judicial bodies regarding authorities’ decisions affecting the environment. A significant feature of the access to justice provisions is that the Convention requires that litigation should not be ‘prohibitively expensive’ for challengers (article 9(4)). This has given rise to litigation before the ECJ, involving particularly the UK and Ireland, on the compatibility of these legal systems’ rules on recovery of costs in environmental litigation: see, for example, Commission v. UK, Case C-530/11 [2014] ECR __. In turn, this has led to significant reforms to the costs rules in England and Wales as they apply to environmental law cases (or rather, judicial review claims which raise questions of EU environmental law). 113  Directive 2003/35/EC implements the key provisions of the Aarhus Convention into EU law. The question has arisen whether the Convention’s provisions in article 9 on litigation procedure have direct effect in EU law (that is, whether they can be relied on directly before national courts in their own terms). In Lesoochranarske zoskupenie VLK v. Ministerstvo zivotneho prostredia Slovenskej republiky. Case C-240/09 [2011] ECR I-1255, the ECJ concluded that it did not (such that it did not apply directly in cases governed by the Habitats Directive, which Directive 2003/35/EC did not amend to reflect the provisions of the Aarhus Convention). However, the ECJ invoked the principle of effectiveness to require national courts to do everything within their power to ensure that the Aarhus Convention was effectively protected in the national legal orders in all environmental cases (see para. 50 of the ECJ’s judgment). The upshot is that, in practice, the Aarhus Convention is binding on national authorities in all areas of EU environmental law.

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article 6(2) provides for extensive dissemination of relevant information to the public, public consultation and meaningful opportunities for public input. Article 8 of the EIA Directive requires national authorities to take into consideration the results of consultation and information gathering before granting any development consent, while article 11 implements the substance of article 9 of the Aarhus Convention, requiring opportunities for interested persons to challenge the competent authorities’ decision by judicial review. These provisions of the EIA Directive are aimed at ensuring an open and transparent decision-making process in relation to development proposals. When combined with the ECJ’s broad, purposive approach to construction of EU legislation and the EU constitutional principles of effectiveness and effective judicial protection, they give the EIA Directive—all the more so in light of the pending amendments on disaster risk—real potential to be a vehicle for discussion and consideration of risks to the environment from natural disasters. Acknowledging that this potential is always within a development consent process and is subject to the limitations of the EIA process itself, the opportunity exists for interested parties to highlight the implications of risks from the environment which national authorities are bound to consider and respond to, ultimately through the litigation process. 5.3 SEA While EIA is concerned with projects, SEA is concerned with “plans and programmes”.114 The SEA Directive had a long gestation in the EU, being first proposed in 1996 but only enacted in 2001. Yet it filled a crucial gap in EU environmental law: the system was clearly flawed if only particular ‘projects’ were subject to an EIA, while the plans and programmes for possible future development consent were not themselves subject to assessment for their adverse effects on the environment. Notwithstanding the amendments which are now to be made to the EIA Directive on disaster risk assessment and despite the focus of the SEA Directive on strategic environmental assessment, there is nothing explicit in the SEA Directive about the need to assess environmental risks or hazards. It seems that the purposes of the SEA Directive are again to lag behind those of the EIA Directive. The clear contrast is with the Floods Directive and the approach which emerged in relation to risks of industrial accidents (the Seveso line). In both these cases, ‘strategic risk assessment’ is integral to the measures. The silence of the SEA Directive reflects a systemic defect in the law: if the EIA Directive is to be amended to provide for disaster risk assessment, the 114  Directive 2001/42/EC, article 2.

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upstream, SEA Directive needs to be amended too. It is illogical that the “plans and programmes” which are to be the guide for consenting to future development proposals are not to be tested against disaster risk scenarios under the SEA Directive, while the downstream EIA Directive now will require this for particular projects. Nevertheless, it is arguable that there is an implied obligation to assess plans and programs for disaster risk, as and when such a risk is a possibility. For example, article 5 of the SEA Directive deals with the contents of an environmental report on “plans and programmes” covered by the Directive. Annex I to the Directive provides for what the environmental report must cover. This includes: the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme [and] . . . the environmental characteristics of areas likely to be significantly affected . . . Further, article 3(5) of and Annex II to the Directive set out the criteria for determining the effects of a plan or programme. These include “environmental problems relevant to the plan or programme” and “the risks to human health or the environment (e.g. due to accidents)” arising from the plan or programme. The SEA Directive has not been considered by the courts as often as the EIA Directive, so its full implications continue to be subject to considerable debate.115 Still, as with the EIA Directive and in line with its invariable approach to legislative construction, the ECJ emphasises that the SEA Directive requires a broad, purposive construction to ensure that its (albeit limited) objectives are fulfilled.116 The ECJ’s case law on the SEA Directive suggests that in appropriate cases, it would find that the failure to assess disaster risk in a strategic environmental assessment of a plan or programme for future development was contrary to the objects and purposes of the Directive. At least on the face of it, the terms “current state of the environment” in Annex I and “environmental problems” in Annex II potentially extend to cover natural disaster risk and its implications for the plan or programme which is being assessed under the 115  Cf. recent cases in the UK Supreme Court on the scope and meaning of the SEA Directive: Walton v. Scottish Ministers 2013 SC (UKSC) 67 and the HS2 case ([2014] UKSC 3). 116  See, for example, Inter-Environnement Bruxelles ASBL v. Region de Bruxelles-Capitale, Case C-567/10 [2012] 2 CMLR 909 (a plan or programme falls within the SEA Directive where it was “regulated” by administrative provisions, as opposed to “required” by them (as the terms of the Directive suggest).

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SEA Directive. Still, an amendment to the SEA Directive along the lines of the pending amendments to the EIA Directive would be preferable. 6 Conclusion The EU institutions, notably the European Commission, have identified risks from the environment and disaster risk reduction as matters which call for assessment as a feature of EU environmental law. To a large extent, this development has been prompted by the EU’s ambition to fall into line with the Hyogo Framework and by wider concerns about the impacts of climate change. In 2009 the Commission published a disaster risk communication which promises more focus on prevention of accidents and an approach to disaster risk reduction, including in respect of natural disasters. The precautionary principle, which has a constitutional status in EU environmental law, is the basis of the EU’s initiatives in this area. However, moving from soft law guidance to amending EU environmental legislation so that it includes disaster risk assessment as one of its features is proving to be a slower process. The Commission has recognised in its latest, 2014 Communication on the subject that there are continuing challenges presented by integrating disaster risk assessment into spatial planning and environmental laws and policies. More generally, EU law sometimes appears content to leave much of the burden of preventive action to national law and private operators, reflecting the risks that the latter bear from potential public law and private law liability if risks are not adequately identified and addressed. Beyond the specific contexts of flood risks and certain industrial accidents, natural disaster risk assessment is not yet integral to EU environmental measures. This will change with pending amendments to the EIA Directive which, while welcome, are unlikely to be adequate alone when it comes to assessing inherently uncertain risks posed by the natural environment. Time will tell whether the EU’s current policy response will lead to a more joined-up legislative approach to disaster risk assessment.

CHAPTER 8

The Potential Role of International Environmental and Water Law to Prevent and Mitigate Water-Related Disasters A. Dan Tarlock 1

Introduction: Three Water-related Disasters that Climate Change Will Exacerbate

Three of the many potential disasters that global climate change may exacerbate are floods of Biblical proportions, droughts, and the collapse of stressed aquatic ecosystems. The Biblical story of Noah’s Flood, which is both a human and ecosystem tragedy,1 is well known. Drought was also a Biblical punishment for sin. As the Israelites were about to enter the Promised Land, G-d cursed them with drought: “I will make the sky above you as hard as iron, and your soil as hard as bronze, so that your strength shall be spent in vain and your land will bear no crops and its trees no fruit.”2 Fortunately, today most of us understand that floods, droughts and ecosystem degradation are caused by a combination of natural phenomena and human choice rather than punishment for the failure to follow G-d’s word. We also have a better understanding of how to prevent and mitigate their costs when they occur. However, a large gap still exists between this knowledge and its acceptance and implementation on the ground.3 1  “And He blotted out every living substance which was upon the face of the ground, both man, and cattle, and creeping thing, and fowl of the heaven; and they were blotted out from the earth; and Noah only was left, and they that were with him in the ark.” Genesis 7:23. 2  Leviticus 26:19. 3  The Colorado River which flows from the Rocky Mountains to the Gulf of Mexico is perhaps the most managed and studied stressed river in the world, but a 2014 background paper by the University of Colorado River Governance Initiative notes that the focus has been “on a given consumptive use supply/demand imbalance rather than on dynamic vulnerability analysis emphasizing a range of futures; the characterization of the environment as a management constraint rather than a first-order objective. . . .” Colo. River Governance Initiative, Univ. of Colo., Research Needs in the Colorado River Basin: A Summary of Policy-Related Topics to Explore Further in Support of Solution-Oriented Decision-Making 6 (July 2014), http:// www.waterpolicy.info/docs/Research_Needs_in_the_Colorado_River_Basin_CRGI_2014.pdf.

© Peel and Fisher (eds), ���6 | doi ��.��63/9789004318816_009

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This chapter asks what role, if any, international environmental and water law might play in preventing inland flood damage,4 mitigating the economic and human costs of drought, and conserving or restoring stressed ecosystems. It focuses on these three disasters because they are examples of what human ingenuity can do to disrupt climates as well as to adapt to the consequences of the disruption. We cannot stop extreme rain events or cause arid areas to become humid.5 But, we can take steps to prevent floods through the construction of flood control dams, and watershed and flood plain management. We can help mitigate the consequences of drought through water infrastructure and management. We can also provide the necessary in situ flows to conserve and restore stressed aquatic ecosystems.6 At first blush, international environmental and water law do not appear well suited to preventing and mitigating disasters. Since the 1972 Stockholm Conference,7 the primary focus has been on inducing States to address many of the persistent sources of planetary degradation such as transboundary pollution, biodiversity loss and the mitigation of greenhouse gas emissions rather than preventing and mitigating “one-off” disasters. However, the general duty of a State not to harm another is the basis for both procedural and substantive

We are also still struggling with flood damage prevention. E.g., Jeroen Warner, Flood Planning and the Politics of Water Security (2011). 4  This chapter does not deal with projected sea level rise and the coastal flooding. The mitigation of damages is a function of greenhouse gas accumulations and national land use policy, topics which are beyond the scope of this chapter. 5  There is a long tradition of weather modification or cloud seeding, but the results are not promising. The last authoritative review of weather modification experiments by the United States National Academy of Sciences “found that 10 U.S. states were conducting at least 66 cloud-seeding programs. “We know that human activities can affect the weather, and we know that seeding will cause some changes to a cloud,” noted the report. “However, we are still unable to translate these induced changes into verifiable changes in rainfall and hail fall, and snowfall on the ground, or to employ methods that produce credible, repeatable changes in precipitation.” Comm. on the Status & Future Directions in U.S. Weather Modification Research & Operations, Nat’l Research Council, Critical Issues in Weather Modification Research (2003). This chapter does not deal with the range of suggestions to mitigate GCC through a variety of geo-engineering strategies. 6  See pages 000 to 000, infra. 7  See, e.g., Paul Stanley Weiland & Lynton Keith Caldwell, International Environmental Policy: From the Twentieth to the Twenty-First Century (3d ed. 1996), for a history of the first international environmental conference.

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disaster prevention and mitigation duties, as well as post-disaster compensation to a victim State.8 Treaty and customary laws which potentially address disaster prevention and mitigation are growing.9 The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (U.N. Convention)10 combines this duty to avoid cross-border harm with duties to ensure that each state can use its fair share of a transboundary river and to consult and cooperate when one state undertakes a project or activity that can adversely impact other riparian states or impair their fair access. As discussed further below, the U.N. Convention provides relevant, if underdeveloped, principles to address the three disasters of focus in this chapter. The duties imposed on riparian states to share water use and to cooperate with each other have long served as background principles to allocate water among basin states, and to prevent flood damge. Thus, these principles could be the basis to improve river basin climate change—induced flood management and drought responses. We also have some explicit disaster prevention and mitigation models in environmental conventions relevant to the third type of disaster considered here, overstressed ecosystems. The International Convention for the Prevention of Pollution from Ships (MARPOL Convention)11 and the Basel Convention 8  United Nations Conference on the Human Environment, Declaration of the United Nations Conference on the Human Environment, Principle 21, U.N. Doc. A/CONF. 48/14 (Jun. 16, 1972), reprinted in 11 I.L.M. 1416. For an early analysis of international environmental law’s role in mitigating disasters from prevention to compensation see Edith Brown Weiss, Environmental Disasters in Environmental Emergencies, 1986 Anuario Jurídico Interamericano 141 (1988). See also Michael G. Faure, Liability and Compensation as Instruments of Disaster Risk Mitigation?, chapter 11, in this volume. 9  See Edith Brown Weiss, Stephen McCaffrey, Daniel Barstow Magraw & A. Dan Tarlock, International Environmental law and Policy, Ch. VII (2d ed. 2007). Article 19 of the Treaty of Good Neighborliness, Friendship and Cooperation Between the Russian federation and the People’s Republic of China (2001), requires that the two countries cooperation in the prevention and elimination of the consequences of water-related emergencies. Sergei Vinogradov, Can the Dragon and the Bear Drink from the Same Well? Examining Sino-Russian Cooperation on Transboundary Rivers Through a Legal Lens, 23 J. Water L. 95, 106 (2012). 10  Jul. 8, 1997, 36 I.L.M. 700 (1997) [hereinafter U.N. Convention] (entered into force 2014). 11  December 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120. In 1992 the Convention was amended to make it mandatory for tankers of 5,000 dwt and more ordered after 6 July 1993 to be fitted with double hulls, or an alternative design approved by IMO, and in 1996 the original Convention was replaced by the Protocol to the Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matterns, Nov. 7, 1996, S. Treaty Doc. No. 110–5, 36 I.L.M. 1.

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on the Transboundary Movement of Hazardous Wastes (Basel Convention)12 mandate technologies intended to prevent disasters such as tanker spills and the export of hazardous wastes to countries which will not properly treat or dispose of them. The post-Chernobyl Convention on Early Notification of a Nuclear Accident and Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency are important precedents for a broader international disaster law and the development of new international water and environmental law climate change adaptation principles.13 2

Climate Change, Water Stress and Disasters

2.1

Water Stress

FIGURE 1 [http://www.fastonline.org/CD3WD_40/HDLHTML/EDUCRES/H1325E/EN/CH09. HTM].

12  Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, Mar. 20, 1989, 1673 U.N.T.S. 57. 13  See Brown Weiss et al., International Environmental Law and Policy, supra note 9 at 419–428.

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The international community has adopted the concept of water stress to identify the most likely climate change victim countries.14 Water stress is a function of three primary factors: (1) bad hydrology,15 (2) the growing demand for uses which often compete with each other (irrigation, urban use and energy production can compete with pollution dilution and in situ uses such as aquatic ecosystem conservation, especially in Africa and Asia), and (3) the country’s institutional and political capacity to adapt to changed conditions. For this reason, developed countries which have regions with bad hydrology, are often not listed as water stressed because they have both the storage capacity and the institutions to conserve and reallocate water if necessary. Three Examples of Water Stress Exacerbated by Climate Change: Irrigated Agriculture, Flood Plain Development, and Aquatic Ecosystems Irrigation, which consumes about 70 percent of the world’s fresh water withdrawals, will be the most impacted by climate change. As the 2007 IPPC report summarized: 2.2

Higher temperatures and increased variability of precipitation would, in general, lead to an increased irrigation water demand, even if the total precipitation during the growing season remains the same. As a result of increased atmospheric CO2 concentrations, water-use efficiency for some types of plants would increase, which would increase the ratio of crop yield to unit of water input (water productivity—‘more crop per drop’). However, in hot regions, such as Egypt, the ratio may even decline as yields decrease due to heat stress.16 The 2014 IPCC report summarized the evidence of increased extreme rain events as follows:

14  Some countries will be winners, but the focus of this article on loser countries and regions. Among the winners are Canada, e.g., Lawrence C. Smith, The World in 2050: Four Forces Shaping Civilization’s Northern Future (2010), as well as Norway and Russia. 15  The term was coined by Professor John Briscoe of Harvard University. John Briscoe, Water Security: Why it Matters and What to do about it, 4 Innovations: Tech, Governance, Globalization, 3, 3 (2009). 16  Working Group Ii, Intergovernmental Panel on Climate Change, Climate Change 2007: Contribution of Working Group Ii to the Fourth Assessment Report of the Inter­ governmental Panel on Climate Change, § 3.5.1 (Martin L. Parry, et al. eds., 2007).

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There are likely more land regions where the number of heavy precipitation events has increased than where it has decreased. Recent detection of increasing trends in extreme precipitation and discharge in some catchments implies greater risks of flooding at regional scale (medium confidence). It is likely that extreme sea levels (for example, as experienced in storm surges) have increased since 1970, being mainly a result of rising mean sea level.17 Global climate change will adversely impact many fresh water aquatic ecosystems, especially lakes, wetlands and deltas.18 These impacts include changed flow patterns for both arid and humid regions, increased floods and droughts, higher water temperatures that may interfere with species reproduction and thus affect species composition and ecosystem productivity, increased water temperatures that will reduce the water quality and availability of food for organisms such as invertebrates and fish that have a high oxygen demand, and the disruption of ecological processes and the geographic redistribution of species. These impacts are serious because the ability of flora and fauna to adapt to climate change is less for aquatic compared to terrestrial ecosystems. 3

Flood Prevention and Damage Mitigation “Accentuate the Positive, Eliminate the Negative” Johnny Mercer, 1944

Modern flood policy is premised of the assumption that we cannot prevent all flood risks but we can mitigate damages through integrated flood plain management, which requires a combination of structural and? non-structural measures.19 Structural measures include dams, levees, and flood resistant 17  Intergovernmental Panel on Climate Change, Climate Change 2014 Synthesis Report Summary for Policy Makers 8 (2014), http://www.ipcc.ch/pdf/assessment-report/ar5/syr/ AR5_SYR_FINAL_SPM.pdf. 18  The 2014 IPPC Report concluded that there was “very high confidence” that droughts would alter aquatic ecosystems and disrupt food production. Id. at 7. 19  Directive 2007/60/EC of the European Parliament and of the Council, 2007 O.J. (L 288) 27 [hereinafter EU Floods Directive], reflects state-of-the-art flood policy. Article 7(4) provides: “Flood risk management plans shall address all aspects of flood risk management focusing on prevention, protection, and preparedness, including flood forecasts and early warning systems and taking into account the characteristics of the particular river basin or sub-basin. Flood risk management plans may also include the promotion of

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s­ tandards for new flood plain construction; non-structural measures include land use policies that move people out of flood plains and the purchase of flood easements. International water law developed before the modern paradigm of integrated flood plain management. Therefore, many aspects of the former frustrate the implementation of the latter. International water law is designed to promote the construction of multiple purpose dams and reservoirs and allows states to ignore most of the adverse impacts up and downstream.20 The law privileges unilateral over cooperative dam building, and management and mitigation of adverse up and downstream impacts. The law also separates floodplains from the rivers that run through them.21 Thus, basin states have no duty to coordinate land use and water decisions,22 although treaty practice can encourage integration.23 The primary role of international water law can play in flood prevention and damage mitigation is to promote better planning of new dams and reservoirs, the more integrated management of existing ones,24 and basin wide flood management planning that includes the regulation of flood plain land uses. The great project of international water law has not been to prevent dams but to stop the unilateral race to dam and divert. International water lawyers have long recognized that the central problem hindering basin cooperation has been its endorsement of the unilateral development of dams and diversions. Because dams can play a positive role in preventing floods and mitigating damages, they should only be built through cooperation with all the s­ ustainable land use practices, improvement of water retention as well as the controlled flooding of certain areas in the case of a flood event.” 20   Thayer Scudder, The Future Of Large Dams: Dealing With Social, Environmental, Institutional And Political Costs 5 (2005). 21  The UN Convention applies to watercourses, and Article 2, limits them to surface and connected groundwaters. It does not adopt an integrated watershed approach that addresses both water and land. 22  See A. Dan Tarlock, International Water Law and the Protection of River System Ecosystem Integrity, 10 B.Y.U. J. Public L. 181 (1996). 23  The best example of the integration of land and water planning to mitigate the adverse impacts of GCC is the work being done by the International Commission for the Pro­ tection of the Danube (ICPDR). ICPDR Strategy on Adaptation to Climate Change 26–29 (2013) (outlining possible, necessary land use policies for the Basin). 24  Glen Canyon Dam on the Colorado River at the eastern entrance to the Grand Canyon National Park in the United States has been re-operated to try and mitigate some of the environmental damage caused by the dam and its operation. The scientific basis of the re-operation is set out in Committee to Review Glen Canyon Environmental Studies, National Research Council, River Resource Management in the Grand Canyon (1996).

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impacted riparian states and only after adverse impacts have been addressed, a mitigation program developed, and a shared management regime put in place.25 However, there is little customary or treaty law, state practice or authoritative precedent to mandate this objective.26 Dams have been increasingly criticized for their adverse environmental and social impacts and the failure to deliver promised benefits, and this criticism is an important element of rethinking their role in flood prevention and mitigation. During the first three decades of the twentieth century, the Soviet Union and the United States developed large multipurpose dams and reservoirs to stimulate national and regional economic development.27 After World War II, both countries competed aggressively to export this idea to Africa and Asia. Dam construction continues to thrive in China, India, Brazil, and many other developing countries, but in the late twentieth century, the social, equitable, environmental, and economic costs of these projects became clearer. Many large dams and irrigation projects foreclose future downstream (and upstream) uses and produce high, unaccounted-for social and environmental costs. Consequently, the international community has now begun the process of calculating these costs and trying to mitigate them. In 2000, a privately funded commission published a major critique of large dams, especially those built after World War II in developing countries.28 The World Commission on Dams estimated that most of the forty to eighty million people resettled by dams had not seen their livelihoods restored.29 A subsequent social displacement study by a Commission member reported that minorities are disproportionately victims of dams and reservoirs in Canada, India, Mexico, and the United States, while in China, Japan, and Korea, the victims are the majority poor.30 The study also found that many irrigation dams have fallen short of promised irrigated acreage targets, failed to recover their costs and have been less profitable than initially projected. Moreover, the flood control benefits of these dams are at best mixed. In addition to 25  For an argument that water infrastructure development has positive benefits see Briscoe, supra note 16, at 8. 26  Dante A. Caponerna & Marcella Nanni, Principles of Water Law: National and Inter­ national 217 (2d ed., Taylor & Francis 2007). 27  Scudder, supra note 20, at 5. 28  World Comm’n on Dams, Dams & Dev.: A New Framework for Decisionmaking (2000), http://www.internationalrivers.org/files/attached-files/world_commission_on_dams_ final_report.pdf. 29  Id. at 129. 30  See also Int’l Inst. For Env’t & Dev., Sharing The Benefits Of Large Dams In West Africa (Jamie Skinner, Madiodio Niasse & Lawrence Haas eds., 2009).

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their adverse environmental impacts on flood plains, dams have long been ­controversial because they encourage irresponsible flood plain behavior.31 The World Commission on Dams found considerable evidence that dams encourage moral hazard behavior and thus they exacerbate rather than alleviate the risks of flood damage.32 International water law has developed three approaches to fostering the better construction and management of dams. First, the law is based on the principle that all basin states are entitled to make an equitable and reas onable utilization of international rivers.33 Equitable apportionment rejects the argument frequently asserted by headwaters nations that they have the privilege to use all the water which originates within their territory. It equally rejects the argument of downstream states that they are entitled to the natural or unaltered flow of an international river. Finally, future uses are equally important as the protection of existing ones. These principles, combined with the well-recognized duty of states to do an environmental assessment of any dam, could be the basis for a duty expressly to factor in flood damage mitigation into both the design and operating regimes of new dams. At a minimum, the dams should not increase flood risks above the pre-dam baseline. The second, and perhaps most promising approach, is a shared benefits approach to basin development. This approach is derived from welfare economics and game theory. Water is valuable only as a scare resource measured by the range of alternative uses. The transcendental objective of efficiency requires that the resource be allocated to the most valuable suite of uses regardless of political boundaries. Game theory teaches that it is possible to change water allocation from a zero to a positive sum game through cooperation among riparian nations.34 In practice, this means that some nations will have to forego the actual use of wet water35 but are entitled to monetary 31  See A. Dan Tarlock, United States Flood Control Policy: The Incomplete Transition from the Illusion of Total Protection to Risk Management, 23 Duke Envtl. L. & Pol’y F. 151, 166–68 (2012), for a discussion of the role of dams in inducing moral hazard behavior in flood plains. 32  World Comm’n on Dams, supra note 28 at 58–62. 33  U.N. Convention, supra note 10, Arts. 5–6. 34  Oliver Hensengerth, Ines Dombrowsky & Waltina Scheumann, Deutsches Instituit fǖr Entwicklungspolitik, Benefit-Sharing in Dam Projects on Shared Rivers 3–4 (2012). 35  Wet water refers to water in a river or aquifer put to a consumptive or non-consumptive use by a country. Arid nations such as Saudi Arabia have been urged to reduce the use of water for agriculture and import more food stocks from countries with more abundant water supplies, thus trading wet for virtual water. See Chatham House, Energy, Environmental and Resources Summary: Global Food Insecurity and Implications for

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c­ ompensation for making it possible for other states to put the water to its most efficient use that provides benefits for other riparian nations. The shared benefits concept originated in the 1961 Canada-United States Columbia River Treaty36 and is now an established general principle of international water law and environmental law. Both countries wanted to dam the Columbia River for power generation and flood control after they experienced substantial flood damages. Proposed downstream dams in the United States would have deprived Canada of opportunities for power generation; Canada’s planned dams would have provided substantial flood control benefits to the United States. The parties agreed to allow the major development in the United States,37 but Canada was compensated for loss of power revenues. Canada was also allowed to construct three projects with 15.5 million acre feet of storage38 and received a one-time payment of US$64.4 million for the downstream US flood control benefits that its dams would provide.39 Both nations have received considerable benefits, Canada’s in the form of cost savings and the United States’ in terms of flood damages avoided.40 The money from power generated in the United States, along with the money Canada received for the power benefits it provided the United States, were used to construct three upstream dams in Canada. Shared benefit agreements need to be open to modification because the value and nature of benefits can change over time. The Columbia Treaty, for example, could have ended in September, 2024 had either country given notice Saudi Arabia (2013), https://www.chathamhouse.org/sites/files/chathamhouse/public/ Research/Energy,%20Environment%20and%20Development/290413summary.pdf. 36  Treaty Between Canada and the United States of America Relating to Cooperative Development of Water resources of the Columbia Basin, Can.-U.S., Jan. 17. 1961, 15 U.S.T. 1555, 542 U.N.T.S. 244 [hereinafter Columbia River Treaty]; See John V. Jrutila, The Columbia Basin Treaty: The Economics of International River Basin Development (1967). 37  See Keith W. Muckleston, International management in the Columbia River System 9 (UNESCO Technical Documents in Hydrology No. 12, 2003), http://unesdoc.unesco.org/ images/0013/001332/133292e.pdf. Canada was allowed to construct three projects with 15.5 million acre feet of storage. Columbia River Treaty, supra note 36, Art. VIII. 38  Columbia River Treaty, supra note 36, Art. VIII. 39  The money, along with the money Canada received for the power benefits it provided the United States, were used to construct three upstream dams in Canada. 40  Winston H. Yu, Benefit Sharing in International Rivers: Findings from the Senegal River Basin, the Columbia River Basin, and the Lesotho Highlands Water Project 42 (World Bank Report No. 46456, Africa Regional Water Resources Unit Working paper No. 1, 2008), http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2008/ 11/13/000334955_20081113045420/Rendered/PDF/464560NWP0P1121g0AFTWR0YU301 PUBLIC1.pdf.

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of its intent to terminate by the end of 2014. Neither Canada nor the United States has given notice, but it is likely that the treaty will be amended or renegotiated to address excluded issues such as environmental protection and Native American rights as well as a wide range of Canadian concerns. Most of the treaty provisions will continue indefinitely if there is no termination. However, after 2024, Canada will still be required to operate its dams to provide flood control benefits in the United States whether or not the treaty is terminated, and the United States will be required to provide additional reimbursement to Canada for their lost power opportunities.41 Shared benefits can be coupled with shared river management to address issues such as ecosystem conservation, even if they were not initially considered in the benefit sharing regime. The use of the Senegal River among Mali, Mauritania, Guinea and Senegal is the primary example of shared benefits tied to an evolving management regime. Initially, the four countries allocated the costs and benefits of two large reservoirs amongst themselves.42 After the inevitable failure of certain benefits such as irrigation to appear and the disruption of the river’s ecosystem, the countries adopted a Water Charter. The Charter allocates the water for a wide range of non-consumptive as well as consumptive uses43 and includes stakeholders in the Permanent Water Commission. The third approach is the enhancement of existing procedural duties to provide better flood forecasting and warning information. The U.N. Convention imposes several specific procedural duties as well as a general duty to cooperate,44 as prior notice of a major water project likely to have significant adverse effects on other riparians and the exchange of relevant information including an environmental assessment.45 The notified state also has a right to document its objections if it “finds that implementation of the planned measures would be inconsistent with the provisions of articles 5 or 7.”46 These obligations clearly apply to the likely impacts on a downstream riparian’s 41  See U.S. Army Corps of Eng’rs & Bonneville Power Admin., Columbia River Treaty: History and 2014/2024 Review (2009), http://www.bpa.gov/news/pubs/GeneralPublications/crtColumbia-River-Treaty-History-and-2010-2024-Review.pdf. 42  This paragraph summarizes Yu, supra note 40 at 12–26. 43  Charter of Water of the Senegal River, May 28, 2002, Art. 5, http://iea.uoregon.edu/pages/ view_treaty.php?t=2002-SenegalRiverWaterCharter.EN.txt&par=view_treaty_html, requires that the river be managed for traditional flood damage reduction and to ensure seasonable floods for traditional cultures that depend on them. 44  U.N. Convention, supra note 10, Art. 8. 45  Id. at Art. 18. See Attila Tanzi & Maurizio Acardi, The United Nations Convention on the Law of International Water Courses: A Framework for Sharing, Ch. 4 (2001). 46  U.N. Convention, supra note 10, Art. 15.

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exposure to flood risks.47 European countries are going further by implementing early flood warning protocols, driven largely by the EU Floods Directive48 and the EU Cross-Border Cooperation Programme with EU and non-member ­countries.49 For example, Turkey and Bulgaria have developed three joint projects, with one for exchange of information and real-time data, and two for flood forecasting and warning. These joint projects are the first common projects in the region on forecasting. The information is shared on a common website, with real-time information from two hydrometric stations. The transboundary forecasting and early warning system will be used as input for local and regional preparedness and emergency response plans.50 The cooperation duties suggested in this section are now grounded in a major International Court of Justice precedent, The Pulp Mills case (Argentina v. Uruguay).51 The case has joined treaty and customary procedural duties with substantive duties to ensure the equitable utilization of a watercourse to expand the cooperation duties of states. Pulp Mills arose when Argentina objected both to discharges from a planned upstream Uruguayan pulp and paper mill on the Uruguay River and to the process by which Uruguay approved the project. A treaty between the two countries created an international commission to deal with river modifications and uses which threatened to alter water quality, but Uruguay did not make use of this joint institutional mechanism, instead providing an informal notice to Argentina that plans for the mill were going forward. In the first decision (interim measures), the Court observed that all uses of the river should allow for sustainable development taking into account “the need to safeguard the continued conservation of the river environment and the rights of economic development of riparian states.” .

47  Alistair S. Rieu-Clark, A Survey of International Law Relating to Flood Management: Existing Practices and Future Prospects, 45 Nat Resources J. 649, 660 (2008). Art. 19 allows a State to implement emergency measures, but it must make “a formal declaration of the urgency of the measures shall be communicated without delay to the other watercourse States referred to in article 12 together with the relevant data and information” and it must “at the request of any of the States referred to in paragraph 2, promptly enter into consultations and negotiations with it in the manner indicated in paragraphs 1 and 2 of article 17.” U.N. Convention, supra note 10, Art. 19. 48  Supra, Note 19. 49  European Union, Best Practices for Flood Prevention and Protection (Sept. 25, 2003), http:// ec.europa.eu/environment/water/flood_risk/pdf/flooding_bestpractice.pdf. 50   United Nations Economic Commission for Europe, Convention on the Protection of Transboundary Watercourses and International Lakes, Transboundary Flood Risk Management: Experiences from the UNECE Region 33 (2009). 51  Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 ICJ 14 (Apr. 20).

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The ICJ held that Uruguay’s failure to use the treaty body breached both the treaty and customary international environmental law duties to notify and negotiate with the possible victim state before proceeding to approve a project which could be an unreasonable use of the river under customary international water law. The decision revolved around the breach of rules of procedure under the treaty and did not deal directly with substantive rules of use-allocation. However, the court identified the importance of operational cooperation in accordance with the rules of procedure agreed under the treaty regime, and linked them to achievement of substantive treaty and customary rules; The 1975 treaty places the Parties under a duty “to co-operate with each other, on the terms therein set out, to ensure the achievement of its object and purpose. “The Court concluded that this obligation to co-operate also encompasses on-going monitoring of an industrial facility, such as the Orion (Botnia) mill.”52 On the merits, the Court did not find any breach of substantive duties under the treaty and refused to enjoin the project. Nonetheless, the case is a major precedent which merges procedural and substantive obligations, and lays the foundation for more stringent cooperation duties. The ICJ found also that “[t]he Parties have a legal obligation . . . to continue their co-operation through [their joint commission] and to enable it to devise the necessary means to promote the equitable utilization of the river, while protecting its environment.”53 These procedural duties include an environmental impact assessment, although the Court endorsed the right of the acting State to control the process. “The Court noted that for the purposes of complying with their obligations under Article 41 of the 1975 Statute and under general international law, the Parties are obliged, when planning activities which may be liable to cause transboundary harm, to carry out an environmental impact assessment, the content of which must be determined by each State within its domestic legislation or in the authorization process for the planned activity.”54 Professors Patricia Wouters and Dan Tarlock have argued that Pulp Mills is the foundation for the principle? that all states have an erga omnes duty to cooperate in the peaceful management of the world’s water resources.55 The authors further argue that the procedural duties to cooperate must be reinforced by two substantive rules which penalize non-cooperation and push 52  Id. ¶ 281. 53  Id. ¶ 266. 54  Id. ¶¶ 204–205. 55  See Patricia Wouters & A. Dan Tarlock, The Third Wave of Normativity in International Water Law: The Duty to Cooperate in the Peaceful Management of the World’s Water Resources: An Emerging Obligation Erga Omnes?, 23 J. Water L. 51 (2013).

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States to form the necessary permanent management institutions before undertaking substantial dams, diversions and other projects: (1) No State has a right to develop its waters without taking into account the interests of other watercourse States; (2) The duty to cooperate in the peaceful management of the world’s water resources shall not be compromised by any State.56 The first rule discourages unilateral development by erecting a presumption that the proposed activity is unreasonable and inequitable and by placing the burden of proof to defend the legality of the action on the State undertaking the unilateral action. In contrast to the result in Pulp Mills, the second rule opens the possibility that the proper remedy for an injured State might be the removal or modification of the project: “At a minimum, the burden would be on the acting State to demonstrate that such a remedy is disproportionate to the harm suffered. The harshness of these results can be easily avoided by effective compliance with the duty to cooperate.”57 4 Drought 4.1 The Context: Water Security Compared to floods, droughts are the opposite disaster. Droughts are slow moving disasters which can be short or long-lived. For this reason, drought is not typically included in most international disaster law instruments. The impacts vary widely. In developed countries, such as Australia and the United States, the losses are primarily economic (and environmental). In less developed countries, drought can lead to starvation and large-scale migration from the impacted areas. The good news is that countries and regions have some advance notice of a severe drought and can implement various adaptive measures. The international water community has adopted the construct of water security as a measure of a country’s water well-being and its ability to mitigate scarcity risks such as drought. Water security builds off of two primary concepts. The first is the distinction between “green” and “blue” water. “Green” water is water consumed in plants, by humans and by evaporation; “blue” water is water left in rivers, lakes and aquifers. The second concept is water 56  Id. at 64. 57  Id.

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stress. Water stress has two meanings. The first applies to all countries with poor hydrology. Scarcity is a serious risk in poor countries with permeable soils and agriculturally dependent economies; land conversion can reduce evaporation rates, potentially causing droughts. “Blue” water scarcity can result when these countries, especially arid ones, compensate by increasing irrigation, thus reducing stream flows and aquifer recharge.58 The second meaning of water stress, as highlighted earlier includes the lack of institutional capacity, such as storage, strong allocation systems and effective water governance, to manage the risks of scarcity. For example, the American southwest is stressed on the first criterion but not on the second. Water security risks are divided into three dimensions: economic, social, and environmental. The first dimension focuses on increasing water productivity; the second on assuring equitable access and the third on the sustainable management of aquatic ecosystem and the restoration of aquatic ecosystem services.59 The need to mitigate water scarcity is also a focus on the United Nations Convention to Combat Desertification,60 but the Convention remains largely unimplemented.61 4.2 International Water Law and Scarcity International water law seeks to provide water security, including the minimization of water scarcity, in at least three ways: (1) ensuring that no State uses more than its fair share of a transboundary river, (2) allowing late developing States to assert claims that may displace existing uses to ensure that all 58  MalinFalkenmark, Anders Jägerskog, & Klaus Schneider, Overcoming the Land-Water Disconnect in Water-Scare Regions: Time for IWRM to Go Contemporary, 30 Int’l J. Water Resources Dev. 381 (2014). 59  Eelco van Beck & Wouter Lincklaen Arriens, Glob. Water P’ship Tech. Comm., Water Security: Putting the Concept into Practice 12–13 (Global Water Partnership, Background Paper No. 20, 2014), http://www.gwp.org/Global/ToolBox/Publications/Background%20 papers/GWP_TEC20_web.pdf. 60  Oct. 14, 1994, S. Treaty Doc. 104–29, 1954 U.N.T.S. 3. The United Nations asserts that “[n]ational drought policies should include integrated drought and water scarcity risk management, disaster preparedness, emergency relief, and recovery and rehabilitation planning. They must also take into account water availability and ecosystem protection and restoration.” Water Scarcity and Drought, United Nations Convention to Combat Desertification (last visited Oct. 6, 2015), http://www.unccd.int/en/programmes/ Thematic-Priorities/water/Pages/default.aspx. 61  Kannan Ambalan, The United Nations Convention to Combat Desertification: Issues and Challenges, International relations, April 14, 2014, available at http:///www.e-ir, info/2014/04/30/united-nations-convention-to-combat-desertification-issues-andchallenges, last visited October 12, 2015.

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r­ iparian states are entitled to a share of the river, and (3) recognizing a possible preference for water necessary for survival.62 This section discusses the first two because the implications of the recognition of the right for survival transboundary water allocation are undeveloped.63 In theory, international water law promotes water security on transboundary rivers even if it does not always achieve this objective.64 At least among academic experts, the consensus is that transboundary rivers should be shared among their principal riparian nations in such a way that allows each riparian state a realistic opportunity to make an equitable and reasonable utilization of this water. At the base of all formulations of the principle of equitable apportionment is the norm of fundamental fairness: no riparian state should be able to preclude unilaterally other states from using their fair share of an international river.65 62  Art. 10(2) of the UN Convention, supra note 10, provides: “In the event of a conflict between the uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs.” For an argument that the right includes a duty of humanitarian intervention when water stress leads to conflict that causes massive death and human suffering see David Devlaemick, Transboundary Water Cooperation and the Responsibility to Protect, 24 Water L. 126 (2014). See also Rhett B. Larson, The New Right to Water, 70 Wash. & Lee L. Rev. 2181 (2013), which argues that the right to water should not be characterized as a right to provision of a minimum supply but a right to participate to participate in a country’s administration of its public trust responsibilities. 63  The possible preference for water necessary for the survival of a population dependent on transboundary implicates the emerging human right to water. To date, the focus of advocates of the right has been on incorporating it into national water law. See, e.g., Inga T. Winkler, The Human Right to Water and Implications for Allocation (2012). 64  The practice hydro-geopolitics often leads to a lack of cooperation among riparian states, Marwa Daoudy, Asymmetric Power: Negotiating Water in the Euphrates and Tigris, 14 Int’l Negot. 361 (2009); Benjamin Pohl et al., The Rise of Hydro-Diplomacy: Strengthening Foreign Policy For Transboundary Waters 25 (2014), or weak treaties. Meredith A. Gioradano & Aaron T. Wolf, Sharing Waters: Post-Rio International Water Management, 27 Nat. Resources F. 163, 168 (2003), surveyed many of the major water treaties and concluded that they reveal “an overall lack of robustness. Water allocation, for example, the most conflictive issue area between co-riparian states, are seldom mentioned.” 65  This principle is consistent with the modern characterization of international law as a system to promote distributive justice to scarce resources among the international community. In his seminal book, Fairness in International Law and Institutions 74 (1995), Thomas M. Franck describes the Convention as an effort—to provide for distribution of a scarce resource through the application of broadly conceived equity.

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The core of the fairness principle is Article V of the U.N. Convention which enjoins States to use watercourses in an equitable and reasonable manner. Article VI lists seven non-weighted factors relevant to the determination of what is an equitable and reasonable use. The factors are: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse States concerned; (c) The population dependent on the watercourse in each watercourse State; (d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use. Factors (a), (b), (c) and (f) are the most relevant to States which based their claim on bad hydrology and the need to sustain a population vulnerable to droughts. But, arid States using these factors to claim a water security entitlement against other riparians face two barriers. First, the factors might favor a State with bad hydrology against a State with good hydrology. But, between two States with bad hydrology the factors are indeterminate. Second, the first State to use water—whether arid or humid—can make a unilateral determination of whether its use complies with Article VI.66 It is hard for other riparian States, especially poorer ones, to contest this assessment. The bias against the unilateral actions is offset by the Convention’s treatment of the protection of prior uses. Factor (e) makes protection of prior uses a relevant but not decisive factor. The need to ensure all riparian nations an equal opportunity to make future uses is as important as the protection of existing uses. Equitable apportionment is derived from United States Supreme

66  Patricia Wouters, et al., Sharing Transboundary Waters: An Integrated Assessment Of Equitable Entitlement: The Legal Assessment Model (UNESCO Technical Documents in Hydrology No. 74, 2005), http://unesdoc.unesco.org/images/0013/001397/139794e.pdf, attempts to curb unilateral action by developing an objective framework to apply the equitable apportionment factors.

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Court precedents,67 but unlike the United States, there is no central authority to mediate and finance alternative distributions of water at the international level. Thus, weight is given to prior allocations and more weight is given to a state’s ability to claim its fair share.68 The U.N. Convention still allows unilateral State action, but it is now constrained by the principle of equitable and reasonable utilization, which allows other States to object to a dam, diversion, or discharge if they can prove significant harm. Harm can range from the displacement of existing uses to preempted development opportunities.69 Thus, a late-developing riparian State is not barred from asserting its right to an equitable apportionment.70 The ICJ has recognized that equitable apportionment, as articulated in the U.N. Convention, is a customary norm. In Gabcikovo/Nagymaros (Hungary v. Slovakia),71 the ICJ held that the former Czechoslovakia’s unilateral decision to construct a lock and dam project that would divert 80 to 90 percent of the river’s flow, over Hungary’s environmental objections, deprived Hungary of its right to an equitable and reasonable share of the use of the Danube, including the maintenance of aquatic ecosystems. Slovakia (as successor to Czechoslovakia) was allowed to proceed with a dam-and-lock project, and the two nations were ordered to settle the dispute. However, the dispute remains unsettled. Still, the case stands for the proposition that unilateral assessments of a State’s equitable share are subject to a judicial allocation if the parties cannot negotiate a fair treaty regime or otherwise eliminate the conflict. Applied to drought, the reasonable and equitable use limitation on state sovereignty means that no state should be able to exacerbate unilaterally the drought risks, including those related to climate change, of another state by using more than its fair share of an international river. Sadly, States such as China,72

67  Kansas v. Colorado, 185 U.S. 125, 144–43 (1902). 68  For a discussion of the available means to enforce customary and treaty-based international water law see Edith Brown Weiss, International Law for a Water-Scarce World (2013). 69  It has even been suggested that a state which foregoes a project which would cause significant harm to co-riparians is entitled to compensation. Tanzi & Arcari, supra note 45 at 166. 70  See James C. McMurray & A. Dan Tarlock, The Law of Later-Developing Riparian States: The Case of Afghanistan, 12 N.Y.U. ENVTL. L.J. 711 (2005). 71  Judgment, 1997 I.C.J. Rep. 7 (Sept. 25). 72  Patricia Wouters & Huiping Chen, China’s “Soft Path” to Transboundary Water Cooperation Two UN Global Water Conventions—Exploring the “Chinese Way”, 22 Water L. 229 (2013).

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Egypt,73 and Turkey74 continue to practice hydrogeopolitics by refusing to share and cooperate. Nonetheless, this principle can be found in Pulp Mills and Gabcikovo/Nagymaros. Thus, States that practice hydrogeopolitics face an increased risk of sanctions for over-use that could be avoided through cooperation and sharing. 5

Aquatic Ecosystem Conservation and Restoration

5.1 Customary International Law and the U.N. Convention International water law can both help conserve existing, not-yet-degraded aquatic ecosystems and restore those which have collapsed or are on life support. International water allocation treaties routinely deal with the duty of upstream states to maintain minimum flows for the benefit of downstream states, but these are usually for power generation and consumptive uses. Most major river treaties ignore the impact of upstream development and diversions on the river’s delta. There is no duty to protect aquatic ecosystems in classic customary international water law, but one is emerging. The duty can be derived from the international environmental law of State responsibility for transboundary harm. The duty not to cause harm has been limited to air and water pollution but the foundation principle is that states have a duty not to allow state agencies and private parties subject to the State’s regulatory jurisdiction to use their territories in a manner that causes substantial harm to other states and their nationals. This can encompass ecosystem risk. The U.N. Convention extends the duty not to cause harm from a negative to positive one. Article 20 recognizes that the shared use of international water

73  John Waterbury, Hydropolitics of the Nile Valley (1979); The 2010 Agreement on the Nile River Basin Cooperative Framework, opened for signature May 14, 2010, African Regional Documents, International Water Law Project, http://www.internationalwaterlaw.org/ documents/regionaldocs/Nile_River_Basin_Cooperative_Framework_2010.pdf, replaces water quotas with a clause that permits all activities provided they do not “significantly” impact the water security of other Nile Basin states. Five upstream countries—Ethiopia, Kenya, Uganda, Tanzania and Rwanda—initially signed the accord, and Burundi signed a year later. 74  Aysegul Kibaroglu & Waltina Scheumann, Evolution of Transboundary Politics in the Euphrates-Tigris River System: New Perspectives and Political Challenges, 19 Global Gover­ nance 279 (2013).

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includes ecosystem protection. Two recent precedents, one explicit and the other implicit, recognize a duty to protect and restore aquatic ecosystems.75 5.2 Two Precedents The explicit precedent is the 2012–2013 Kishenganga Hydro-Electric Project Arbitration.76 The issue was the right of India to divert water for a hydroelectric project under the Indus Water Treaty.77 The panel allowed the diversion but held that downstream Pakistan had a right to minimum flows for hydroelectric energy and irrigation and for the protection of the river’s aquatic environment. The treaty, negotiated at the start of the post-World War II era of dam building in Africa and Asia, was silent on the issue of environmental protection, but the panel grounded the new right in customary international law: “There is no doubt that States are required under contemporary customary international law to take environmental protection into consideration when planning and developing projects that may cause injury to a bordering state.”78 Equitable apportionment has been characterized as a theory of restrictive sovereignty because it imposes minimum limitations on exclusive territorial sovereignty claims. But, consistent with the principles of international environmental law and sustainable development, the emerging vision of international water law posits that international watercourses are both commodities and heritage resources which support a variety of human consumptive and n ­ on-consumptive uses ecosystem services and that both purposes must be equally respected in decisions about the use and management of these resources. The implicit precedent is the 2012 Minute79 between Mexico and the United States which provides experimental restoration flows for the degraded Colorado 75  For a survey of recent developments consistent with Article 20 see Owen McIntyre, The Protection of Freshwater Ecosystems revisited: Towards a Common Understanding of the “Ecosystems Approach” to the Protection of Transboundary Water Resources, 23 Rev. Eur. Comp. & Int’l L. 88 (2014). 76  Indus Waters Kishenganga Arbitration (Pak. v. India), Case No. 2011-01, Record of Proceeding, PCA Case Repository (Perm. Ct. Arb. 2013), http://www.pca-cpa.org/showpage b106.html?pag_id=1392 [hereinafter Kishenganga Arbitration]. 77  Indus Waters Treaty 1960 paragraph 15(iii), annexure D, Nov. 27–Dec. 23, 1960, 419 U.N.T.S. 125. 78  Kishenganga Arbitration, supra note 76 at ¶ 449. 79  The Treaty has a relatively unique adaptive mechanism which allows the parties to adjust to changed conditions. The International Boundary Commission, which administers the treaty, has the power to interpret the treaty and interpretations are recorded as Minutes. However, interpretation does not accurately describe the effect of an interpretation. Minutes such as 319 are de facto amendments because they share two essential

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Delta in Mexico caused primarily by United States’ upstream diversions.80 Mexico’s Colorado River Delta is one of the world’s many stressed deltaic aquatic ecosystems. The Colorado originates in the United States Rocky Mountains, enters Mexico at the Arizona-California border, and drains into the Gulf of California. A 1922 Interstate Compact among seven federal U.S. states and the 1944 Mexico-United States Water Treaty allow users in both nations to divert the entire average flow upstream from its mouth, thus cutting off both the necessary seasonal sediment deposits and water flows to sustain the Delta. Until 2012, the two nations had no treaty obligation to supply any flows to the Delta; remnant marshes survived precariously on wet year surplus “pulses” and upstream agricultural return flows. Until recently, Mexico and the United States both took the position that the degradation of the Delta was an un-remedial consequence of the Treaty.81 In 2012, after a two decade long campaign by non-governmental organizations (NGOs) to protect the Delta, the two countries de facto amended the Treaty, as set out in Minute 319,82 to provide a modest experimental Delta flow maintenance regime.83 The agreement was possible because both nations c­ haracteristics of an amendment. First, Minutes can deal with problems that were never contemplated when the treaty was ratified. Second, Minutes agreed upon by the two parties are accorded deference by both parties. See Robert J. McCarthy, Executive Authority, Adaptive Treaty Interpretation, and the International Boundary and Water Commission, U.S.-Mexico, 14 U. Denv. Water L. Rev. 197 (2010–2011). 80  For a detailed discussion of the history of Minute 319 see A. Dan Tarlock, Mexico and the United States Assume a Legal Duty to Provide Colorado River Delta Restoration Flows: An Important International and Water law Precedent, 23 Rev. Eur. Comp. & Int’l L. 76 (2014). 81  This position was consistent with both the Treaty and customary international water law which does not recognize a nation’s right to the pre-dam flow of a river. See Lake Lanoux Arbitration (Fr. v. Spain), 12 R.I.A.A. 281 (Arb. Trib. 1957). 82   Int’l Boundary and Water Comm’n [IBWC], Minute 319: Interim International Cooperative Measures in the Colorado River Basin through 2017 and Extension of Minute 318 Cooperative Measures to Address the Continued Effects of the April 2010 Earthquake in the Mexicali Valley, Baja California (November 20, 2012) [hereinafter Minute 319]. 83  Minute 319 is a de facto amendment to the Mexico-United States Water Treaty. The 1944 Treaty is more flexible than other treaties because the parties can de facto amend it through “interpretive” Minutes negotiated through the International Boundary and Water Commission [IBWC]. Article 25 charges the IBWC with interpreting the Treaty. Article 25 allows IBWC decisions to “be recorded in the form of minutes” which become effective unless either Mexico or the United States object to them. Thus, interpretations recorded in Minutes are de facto amendments. See Carolyn Cadena, A Minute of Clarity after Decades of Confusion: “Extraordinary Drought” in the Lower Rio Grande Basin, Note, 24 Geo. J. Int’l L. 605 (2012).

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received new benefits.84 The environmental core of Minute 319 is the creation of a pilot program to deliver some 158,088 acre feet (195,000 mcm) base flow to the Colorado River limitrophe and Delta. The water will come from two sources: a one time pulse flow of 105,392 and a base flow of 52,696 acre feet per year. The pulse flow is to take place by 2016 at the latest and will come entirely from water saved by Mexico by building more efficient water infrastructure to replace the earthquake damaged facilities. The base flow is being assembled in Mexico through NGO water trust purchases of Mexican water rights. The water trust was established in 2010 and as of 2013 about 40 percent of the amount had been acquired. Minute 319 is only an interim measure, but it is first step toward a permanent adaptive management regime for the Delta. The expectation is that, by the end of 2016, Minute 319 will be replaced by “a comprehensive Minute that extends or replaces the substantive provisions of this Minute . . .”85 The Minute expressly calls for an

84  Minute 319 allows the creation of an Intentionally Created Mexican Allocation (ICMA). The Minute abandons the long held United States position that Mexico is entitled to its 1,500,000 (1,850,000 mcm) whether it needs it or not. Minute 319, § III. Mexico can now decide to leave water in Lake Mead rather than taking delivery at the border in wet years. It provides for releases from 40,000 (19,000mcm) to 200,000 acre feet (247,000mcm) in wet years. Minute 319 § III.2.b. Thus, Mexico is not forced to take her yearly allocation whether she needs it not, or see the water used by the United States. United States users benefit in several ways. Both basins benefit from the prospect of high levels in Lake Mead, especially as the predictions are that climate change will reduce the flow of the Colorado. Upper Basin states benefit because they may not have to release as much water into Lake Mead as required by the 2007 reservoir balancing Agreement. Dep’t of the Interior, Record of Decision Colorado River Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead (Dec. 13, 2007), http://www.usbr .gov/lc/region/programs/strategies/RecordofDecision.pdf. In addition, in the Linear Basin the water-short Metropolitan Water District of Southern California (which supplies the Los Angeles area) can make a one-time purchase of more than 47,500 acre-feet of water from Mexico at a cost of $5 million. The Southern Nevada Water Authority and Central Arizona Water Conservation District can also make purchases. Mexico, in turn, will use part of the revenue from those water sales and funding from other sources to repair the earthquake damage. For a detailed history of the negotiation of Minute 319 see Jonathan King, Peter W. Culp, & Carlos de LaParra, Getting to the Right Side of the River: Lessons for International Cooperation on the Road to Minute 319, 18 U. Denv. Water L. Rev. 36, 72–96 (2014). 85  Minute 319, supra note 83 at § III.

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evaluation of the success of the program in contributing to the Delta’s sustainability and restoration.86 The first of three planned pulse flows was a success: As provided in Minute 319 of the U.S.-Mexico Water Treaty of 1944, a pulse flow of approximately 130 million cubic meters (105,392 acre-feet) was released to the riparian corridor of the Colorado River Delta from Morelos Dam at the U.S.-Mexico border. The water was delivered over an eight-week period that began on March 23, 2014 and ended on May 18, 2014. Peak flows were released early in this period to simulate a spring flood. Some pulse flow water was released to the riparian corridor via Mexicali Valley irrigation canals. Base flow volumes totaling 65 mcm (52,696 acre-feet) are also being delivered to new and pre-existing restoration areas during the term of Minute 319 through December 31, 2017. One hundred and twenty-nine hectares (320 acres) of non-native vegetation in the Laguna Grande area were cleared and graded to promote regeneration of native vegetation. Portions of the site were hydro-seeded with native vegetation and 38 hectares (94 acres) of the site were planted with native trees. In the Miguel Aleman restoration site, 35 hectares (86 acres) were cleared and graded and of these, 10 hectares (25 acres) were planted with native trees. . . . Surface water from the pulse flow rapidly infiltrated into the sandy subsurface in the first 60 km (37 miles) downstream of Morelos Dam. Scour and deposition modified the channel bed topography, but bank erosion of the existing channel was minor. Smaller volumes inundated the river channel farther downstream, including areas that had been prepared for restoration of native vegetation. Pulse flow surface water reached the Gulf of California on May 15, 2014.87 Minute 319 sets three important international environmental and water law precedents, broadly defined. First, it is a de facto implementation of the ecosystem conservation mandates of the U.N. Convention and other recent attempts to incorporate such a duty into customary international water law. Second, 86  Id. at § III.6.c. 87  International Boundary Water Commission, United States, & Mexico, Minute 319 Colo­ rado Delta Flows Monitoring: Initial Progress Report 4–5 (Dec. 4, 2014), http://www.ibwc .gov/EMD/Min319Monitoring.pdf.

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Minute 319 is equally recognition of the emerging duty of riparian nations to cooperate in the long-term management of shared rivers. Third, although Minute 319 de facto amended a treaty through sovereign to sovereign negotiations, it would not have happened were it not for the efforts of NGOs. Mexican and United States environmental NGOs both prodded the two nations to address the Delta’s problems and helped to provide the financing to acquire the necessary wet water for the flows on an over-allocated river system. 6 Conclusion The primary ability to prevent the water-related disasters discussed in this chapter still rests with individual sovereign states. Modern flood control policy requires the integration of land use and water resources planning and management, but land remains very much sovereign territory; national use decisions are generally outside Principle 21’s duty to prevent transboundary harm. In addition, the allocation and management of water are almost exclusively an individual state function. International environmental and water law impose few duties on states to prevent and mitigate flood, droughts, and the degradation of aquatic ecosystems. This said, there is a potential role for both international environmental and water law. The law is evolving, in large part driven by the concern that the use of much of the world’s fresh water resources could be adversely impacted by GCC. All around the world, in diverse and fragmented ways, riparian nations are slowly implementing the long advocated duty to cooperate in the use and management of shared water resources, including disaster prevention and mitigation. Nations are using tools such as integrated water resources management,88 to view river basins as watersheds, not sim88  Integrated water resources management has a brief but contested history. It is designed to reform 20th century central water planning exercises, which were often no more than post-hoc justifications for large dams and diversions by a more open comprehensive planning processes and more democratic decision-making structures that feature stakeholder participation. IWRM calls for the holistic management of freshwater as a finite and vulnerable resource, and the integration of sectorial water plans and programs within the framework of economic and social policy. The report of the World Commission on Dams, Dams and Development: A New Framework for Decision-Making, supra note 28, endorsed it as did Agenda 21—the environmental action plan for the 21st century agreed to at the 1992 United Nations Conference on Environment and Development (UNCED). The World Summit on Sustainable Development (WSSD), held in Johannesburg in 2002, reaffirmed IWRM as a component of economic development and not as a separate entity. The literature is enormous. See e.g., Integrated Water Resources Management in Practice:

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ply watercourses. These efforts are in their infancy in most basins, but they are a necessary step to the generation of the information necessary for shared management. Better water-related disaster prevention and damage mitigation could hopefully be a bi-product of these broader efforts.

Better Water Management for Development (Roberto Lenton & Mike Muller eds., 2009); Integrated Water Resources Management in the 21st Century: Revisiting the Paradigm (Pedro Martinez-Santos et al. eds., 2014); and Sustainability of Integrated Water Resources Management: Water Governance, Climate and Ecohydrology (Shimelis Gebriye Setegn & Maria Concepcion Donoso eds. 2015).

CHAPTER 9

Water Treaty Regimes as a Vehicle for Cooperation to Reduce Water-Related Disaster Risk: The Case of Southern Africa and the Zambezi Basin Mary Picard 1 Introduction Transboundary river basin management is of increasing importance in international relations, even though it complicates water management because control of rivers can become “tangled with power issues, economic opportunity, national security, society, and culture.”1 However, treaties for the management of transboundary waterways rarely have as their primary focus the management of water-related disasters such as floods and drought. They are more likely to focus on the dual but related purposes of how the waters of the river basin are to be shared and exploited as a resource (e.g. for national or shared uses such as hydropower, agricultural irrigation and human consumption), and on sustainable environmental management and conservation (e.g. ecosystem management including flow controls, and water pollution). For historical reasons, existing treaties are even less likely to focus on disaster risk or stress arising from the effects of climate change, such as more extreme wet and dry seasons, except insofar as these are part of broader mandates for ­environmental management. This chapter asks whether river basin treaty regimes may nevertheless be an effective vehicle for cooperation to reduce risk from water-related disasters, regardless of whether these are generated by natural phenomena, human activity, or mixed causes. An obvious answer is that basin treaties cannot be repurposed in this way because they were not intended as disaster risk management treaties. But in a period when there is little interest in making new international treaties, especially on environmental issues, existing watercourse management treaties may provide the only opportunity in the near future to

1  Marloes H.N. Bakker, Transboundary River Floods and Institutional Capacity, JAWRA, 45/3 (15 May 2009) 555, 557–558. (Although his survey showed only 28%—78 of the world’s 279 international river basins—were governed by a commission or organization).

© Peel and Fisher (eds), ���6 | doi ��.��63/9789004318816_010

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provide a legal and institutional basis for cooperation on water-related disaster risk management.2 The potential for treaty-based cooperation on water-related disaster risk reduction (DRR) depends both on express treaty terms, in particular the institutional mandates they confer, and on the scope for their interpretation based on international law norms. Importantly, the application of transboundary watercourse agreements to DRR also depends on how the idea of waterrelated disasters is understood in the context of the emerging convergence in international law and policy between development and disaster risk reduction. This holds great potential for the management of shared waterways in terms of better integration of water and ecological management, planning for sustainable development, and risk reduction from both rapid and slow-onset disasters. Increased awareness and evidence of climate change is an important driver of this convergence, with some climate change effects already documented by the Intergovernmental Panel on Climate Change (IPCC), and others projected for the near future.3 The required adjustment will need to be a mix of traditional disaster risk reduction and management approaches, and broader risk governance through environmental management and development planning. This chapter considers these questions in the context of water basin treaties in the southern African region. The Southern African Development Com­ munity (SADC) is a treaty-based regional organization that has twelve African mainland member countries.4 They are linked by twenty-one river basins that cross international political borders, fifteen of which are highly important for socio-economic development.5 In fact, over seventy percent of the SADC region’s freshwater resources are shared between two or more member states.6 In addition to the shared nature of water resources, the region also faces significant water supply challenges as well as water-related disaster risk from floods 2  Robert Falkner, Crisis of Environmental Multilateralism: A Liberal Response, in The Green Book: New Directions for Liberals in Government, 347–349, (Duncan Brack et al. eds., 2013). 3  As discussed in Part III. 4  Established by the Treaty of the Southern African Development Community, (Windhoek, 17 August, 1992), (‘the SADC Treaty’), which replaced the Southern African Development Co-ordination Conference (SADCC) in place since 1980. The 15 SADC members include the 12 mainland states of Angola, Botswana, DR Congo, Lesotho, Namibia, Malawi, Mozambique, South Africa, Swaziland, Tanzania, Zambia, Zimbabwe, and the 3 island states of Madagascar, Mauritius and Seychelles. See: SADC, Member States, http://www.sadc.int. 5  Anthony Turton, New Thinking on the Governance of Water and River Basins in Africa: Lessons from the SADC Region, Research Report 6, (South African Institute of International Affairs, 2010), 8. 6  SADC. SADC@35: Success Stories. Vol. 1, 2015, (SADC, 2015), 8.

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and droughts and intensive river use. These factors mean that water resources and their management is a central issue for the region, with water scarcity providing the most acute intersection of disaster risk reduction and development issues, such that “the economic development potential of the SADC region is defined by the availability of water.”7 Not surprisingly, regional cooperation on water is a high priority for SADC, which has facilitated a number of transboundary river basin agreements under its regional framework, the Revised Protocol on Shared Watercourses in the Southern African Development Community.8 The newest basin agreement to enter into force, in 2011, was the Zambezi Agreement on the Establishment of the Zambezi Watercourse Commission, which concerns the longest river, with the largest number of riparian states, at eight.9 The SADC and Zambezi regime are therefore taken as a case study in this chapter, to explore the mandates for such river basin regimes to reduce the risk from water-related disasters. This chapter is structured in three further parts. Part 2 highlights the convergence in international soft law instruments regarding DRR, climate change adaptation (CCA) and sustainable development, also evident in international policy developments concerning integrated water resource management (IWRM). It then looks at the contributions from international law to both the content and interpretation of regional water cooperation and river basin management treaties. Part 3 focuses on the SADC region and Zambezi Basin water challenges and its water-related disaster profile. Part 4 then considers the SADC and Zambezi Basin treaty regime in the context of international developments, exploring its potential to enhance transboundary cooperation on water-related DRR, including for floods and droughts, stresses from climate change, hazards generated by development and population growth, water quality and water access issues. 2

The International Context—Disasters, Development Policy and International Law

2.1 Defining Disasters In line with the general approach of this book, this chapter employs a broad concept of disaster for three reasons: to accord with international usage, to 7  Turton, (2010), 8. 8  SADC, Revised Protocol on Shared Watercourses in the Southern African Development Community, (2000). (Entry into force 2003). 9  SADC, Agreement on the Establishment of the Zambezi Watercourse Commission (‘ZAMCOM Agreement’), (2004). (Entry into force 22 September 2011).

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encompass multiple hazards, and to include slow as well as rapid-onset disasters. In international terminology ‘disaster’ describes disruptive effects on people and communities arising from either natural or human-made phenomena, and not the phenomena themselves. The United Nations Office for Disaster Risk Reduction (UNISDR) defines disaster as: 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.10 Likewise, UNISDR focuses on the often-preventable human consequences of hazards rather than hazards per se, in its definition of DRR as: The concept and practice of reducing disaster risks through systematic efforts to analyze and manage the causal factors of disasters, including through reduced exposure to hazards, lessened vulnerability of people and property, wise management of land and the environment, and improved preparedness for adverse events.11 While ‘natural disasters’ is a commonly used term, it is best avoided, as arguably no disaster should be regarded as entirely natural if people had some capacity to avoid, mitigate or reduce the risk from even a wholly natural hazard. This goes to the essence of DRR. Heavy rains cannot be prevented, but flooding of homes and businesses may be caused in part by blocked drains or inadequate drainage, or the location of urban development on floodplains, and can thus be potentially avoided. Floods need not always result in disaster, and in fact serve important ecological functions in many river systems, supporting agriculture and fish stocks essential for food security. But loss of life and livelihoods, even from major floods, can often be avoided with clear and timely early warning, including warning of dam releases, while the extent of flooding in human settlements can also be limited by longer term measures such as careful management of river catchment vegetation and physical flood mitigation works such as levees and controlled flood outlets. Secondly, a broad definition of disaster recognizes that many disasters arise from multiple hazards. Human intervention in the physical environment is ever more extensive, exposing populations to natural hazards from the ­location of housing and associated infrastructure, including drainage p ­ lanning. 10  UNISDR, Disaster, UNISDR Terminology (2009). 11  UNISDR, Disaster risk reduction, UNISDR Terminology (2009).

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Environmental management and resilience studies often refer to “socialecological systems”,12 that is, “there are no natural systems without people, nor social systems without nature.”13 Economic activities often exacerbate risk or damage, for example, when flooding in industrial precincts or commercial farming areas releases hazardous chemicals or other pollutants into waterways and groundwater, affecting both the short and long term health of people, as well as their livelihoods. A characteristic mix of natural and technological disaster is the tsunami that caused Japan’s Fukushima nuclear power station to release radioactive material into the environment following the Great East Japan Earthquake of 2011.14 It is becoming more difficult to make a distinction between natural and human-made phenomena. Long-term interactions between human communities and their environment result in stresses and shocks which can become disasters if the risks have not been reduced or mitigated. Perhaps the ultimate social-ecological system is the global climate, as the environmental effects of anthropogenic climate change increase the frequency and ferocity of ‘natural’ disasters affecting human populations including storms, floods and drought. Notwithstanding this argument, the distinction between natural and technological disasters remains an important one in both international and national environmental law when it is necessary to attribute liability for deliberate conduct or negligence,15 or to use treaty or legislative mechanisms to prohibit planned actions that would create hazards. But the distinction becomes immaterial from the perspective of the humanitarian consequences of all such events, and so the terms DRR and “disaster risk management” (DRM)16 are used below to refer to multi-hazard scenarios as well as those caused either by a natural or technological hazard. Thirdly, disasters need not be rapid-onset events, but can also arise slowly, and from a series of events or phenomena. For example, drought often, but 12  H.M. Leslie et al., Operationalizing the Social-Ecological Systems Framework to Assess Sustainability, (National Academy of Science, USA, 2015). 13  Social-ecological systems, Stockholm Resilience Centre (June 2015), http://www.stock holmresilience.org. 14  Fukushima Accident, World Nuclear Association, (August 2015), http://www.worldnuclear.org/info/Safety-and-Security/Safety-of-Plants/Fukushima-Accident/. 15  See further, Michael G. Faure, Liability and Compensation as Instruments of Disaster Risk Mitigation?, chapter 11, in this volume. 16  UNISDR, Disaster risk management, UNISDR Terminology (2009): “The systematic process of using administrative directives, organizations, and operational skills and capacities to implement strategies, policies and improved coping capacities in order to lessen the adverse impacts of hazards and the possibility of disaster.”

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not necessarily, causes disaster. The effects of drought, such as economic loss, are generally slow-onset. When governments or communities lack resources or capacity to reduce the risk, and where the mitigation and response is not timely or effective, the consequences can be famine and malnourishment, or even starvation. Similarly, river pollution (either rapid or slow), or overextraction of water by upstream states, can have disastrous consequences for downstream riverside communities, with either rapid or slow-onset impacts on health and economies. This broad understanding of the concept of disaster blurs the lines between DRR, CCA and good governance for sustainable development, making the discussion more complex, but also more productive for innovation in addressing DRR and sustainable development. Water-related Disasters and Development in International Frameworks The Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters,17 and its successor agreement, the Sendai Framework for Disaster Risk Reduction 2015–2030,18 arose from a recognition that disasters are a major inhibitor of development, and that resilience to hazards and disruptions is key to the sustainable development of nations and communities.19 The Sendai Framework aims by 2030 to reduce disaster risk in all sectors and aspects of human society and development.20 To this end it elaborates the goal to: 2.2

Prevent new and reduce existing disaster risk through the implementation of integrated and inclusive economic, structural, legal, social, health, cultural, educational, environmental, technological, political and institutional measures that prevent and reduce hazard exposure and vulnerability to disaster, increase preparedness for response and recovery, and thus strengthen resilience.21 17  World Conference on Disaster Reduction, Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, (2005). 18  Third World Conference on Disaster Risk Reduction, Sendai Framework For Disaster Risk Reduction 2015–2030 (‘Sendai Framework’), (2015). 19  Sendai Framework, preamble, para. 2. 20  Sendai Framework, para. 16, and definition of ‘Resilience’: ‘The ability of a system, community or society exposed to hazards to resist, absorb, accommodate to and recover from the effects of a hazard in a timely and efficient manner, including through the preservation and restoration of its essential basic structures and functions.’ 21  Sendai Framework, para. 17.

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The second of the specific priorities of the Sendai Framework is ‘strengthening disaster risk governance to manage disaster risk.’22 It focuses on mainstreaming DRR into all sectors, as well as the laws and policies that confer governmental mandates,23 and promotes the use of risk assessments for land use, urban and rural planning, environmental and natural resource management.24 Mirroring the incorporation of sustainable development in international agreements on DRR, global agreements on development now include more awareness of the impacts of disasters. The millennium development goals (MDGs) focused on the alleviation of poverty without a specific focus on risk reduction,25 but their successor, the Sustainable Development Goals (SDGs) approved on 25 September 2015, show a marked a shift to include disaster resilience in a broadened conceptualization of sustainable development.26 Three of the seventeen SDGs include aspects of disaster resilience: the need for resilient infrastructure (Goal 9), ‘making cities and human settlements inclusive, safe, resilient and sustainable’ (Goal 11), and taking ‘urgent action to combat climate change and its impacts’ (Goal 13). Among the associated targets, the linkage between vulnerability/resilience and disaster risk reduction is also explicitly drawn.27 Both the SDGS and the Sendai Framework also incorporate climate change concerns as an integral part of their approaches. If these understandings are brought to the regional and national level, then the idea of using river basin treaties and their institutions as vehicles for cooperation on DRR in water-related disasters is not at odds with the other water treaty objectives of resource exploitation and environmental management. Rather, it promotes greater integration in managing all the competing human and environmental needs associated with transboundary river basins, including both long and short term DRR measures and sustainable development. It

22  Sendai Framework, para. 20, elaborated in the remainder of the agreement. 23  Sendai Framework, paras. 26, 27. 24  Sendai Framework, para. 30. 25  United Nations Millennium Declaration, (2000) paras. 24, 26 (The eight MDGs were post facto extracted from the declaration. It mentions disasters twice, with general statements on the need to intensify cooperation ‘to reduce the number and effects of natural and man-made disasters’, and to protect the vulnerable). 26  United Nations Sustainable Development Summit, 25 Sep. 2015–27 Sep. 2015, (30 Sep. 2015), http://www.un.org/sustainabledevelopment/summit/. 27  UN General Assembly, Draft Outcome Document of the United Nations Summit for the Adoption of the Post-2015 Development Agenda (‘Draft SDGS’), (2015), 14. Draft goals 9, 11 and 13.

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also dovetails well with the concept of integrated water resource management (IWRM). 2.3 Global Policy on Integrated Water Resource Management (IWRM) Water resource management has been recognized as essential to management of the human environment and as “at the core of sustainable development” in a series of UN resolutions and international conference declarations and outcomes—from Stockholm in 1972 to Rio+20 in 2012.28 These are non-binding ‘soft law’ instruments with extensive implementation guidance that underpin much of the UN and other international policy and practice on water management in the context of development. The concept of integrated water resource management (IWRM) has its roots in the 1992 Dublin Statement, which defined “the river basin, including surface and groundwater’ as the ‘most appropriate geographical entity for the planning and management of water resources.”29 It then emphasized the increasing importance of management of international watersheds and the need to create integrated management plans by agreement with all riparian states.30 Although this concept was not included in the Rio Declaration itself, it was substantially elaborated in Agenda 21: Programme of Action for Sustainable Development, arising from the 1992 Rio conference, giving rise to what are known as the ‘Dublin-Rio principles’.31 Agenda 21 included integrated management of “all types of interrelated freshwater bodies, including both surface water and groundwater” with due consideration to “water quantity and quality aspects” as well as the role of water in socio-economic development,32 and declared flood prevention and control measures a priority.33 IWRM was reiterated in the Rio+20 Outcomes in 2012.34 IWRM combines equity concerns, 28  Rio+20 UN Conference on Sustainable Development, Outcome of the Conference, (2012) para. 119; Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), (1972) principles 2, 3. 29  International Conference on Water And The Environment, The Dublin Statement on Water and Sustainable Development, (1992). 30  Ibid. 31  United Nations Conference on Environment & Development, Agenda 21: Programme of Action for Sustainable Development, (1992). See: Ch.18—‘Protection of the Quality and Supply of Freshwater Resources: Application of Integrated Approaches to the Development, Management and Use of Water Resources’. 32  Agenda 21, Ch. 18, para. 18.3. 33  Ibid. 34  Rio+20 Outcome, (2012) para. 120.

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the human right to clean freshwater,35 and the management of disaster risks of flooding, along with economic exploitation and protection of ecosystems.36 IWRM is an approach that brings together development and DRR concerns in respect of water and reflects the convergence discussed above. For example, SDG6 concerning water availability continues the concern for access to freshwater that was a key indicator for the achievement of MDG7, and target 6.5 under this goal calls for “integrated water resources management at all levels, including through transboundary cooperation”.37 The Sendai Framework likewise highlights the need at global and regional levels to promote transboundary cooperation, such as within river basins, to “build resilience and reduce disaster risk.”38 Access to potable water for drinking and clean water for sanitation has also been the focus of a sustained campaign and research through the United Nations International Decade for Action ‘Water for Life’ 2005–2015, the establishment of the inter-agency mechanism, UN-Water, as well as the mandate for a Special Rapporteur under the UN Human Rights Council.39 IWRM recognizes that water is a finite resource, so that aquatic ecosystems and river basins (including groundwater) require holistic and sustainable management for the benefit of all. As river basins are rarely confined within the national territory of one state, and rivers themselves often form national borders, much of this management needs to be done across national boundaries. The IWRM approach increases the importance of regional and bilateral agreements between riparian states, and the institutional structures for their 35  Human Rights Council, Human Rights and Access to Safe Drinking Water and Sanitation, (2008); OHCHR, Report of the United Nations High Commissioner for Human Rights on the Scope and Content of the Relevant Human Rights Obligations Related to Equitable Access to Safe Drinking Water and Sanitation under International Human Rights Instruments, (2007); Rio+20 Outcome, (2012) para. 121; UN CESCR, General Comment No. 15: The Right To Water, (2002); UN General Assembly, The Human Right to Water and Sanitation RES/64/292, (2010). 36  UNDESA, ‘International Decade for Action ‘Water for Life’ 2005–2015’, citing WWAP et al., Integrated Water Resources Management in Action (2009), available at http://www .un.org/waterforlifedecade/index.shtml. 37  UNDESA, Water Scarcity, http://www.un.org/waterforlifedecade/index.shtml. 38  We Can End Poverty: Millenium Development Goals and Beyond, United Nations, http:// www.un.org/en/events/pastevents/millennium_summit.shtml. 39  UN-Water: The United Nations Inter-Agency Mechanism on All Freshwater Related Issues, Including Sanitation, United Nations, (May 2015) http://www.unwater.org/); UN Human Rights Council, RES 16/2 The Human Right to Safe Drinking Water and Sanitation, (2011); UNDESA, ‘International Decade for Action ‘Water for Life’ 2005–2015’, http://www.un.org/ waterforlifedecade/index.shtml.

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i­mplementation. Although the term is not used in the SADC and Zambezi Basin treaties, no doubt related to the timing of these instruments’ development, it is now an integral part of SADC’s policy approach for the water sector.40 2.4 International Law and Regional Water Cooperation Regimes International law can directly regulate regional and local management of disaster risks, water resource cooperation and transboundary river basins, only to the extent that the states concerned are parties to relevant multinational treaties, or where there is no treaty regulation of an issue, so that customary international law applies. Regional and riparian states are free to create local treaty regimes for their own purposes and on their own terms, subject to the international law of treaties, which will determine matters such as the principles for treaty interpretation, the extent of states’ continuing prior obligations, and the invalidity of treaty terms that violate peremptory norms of general international law ( jus cogens obligations) such as fundamental human rights.41 In the case of southern Africa and the Zambezi Basin, direct regulation of DRM and transboundary watercourse management through general international law is minimal. There is no generally applicable international treaty on DRM, and so far Namibia and South Africa are the only SADC member states that are parties to the 1997 United Nations Convention on the Law of Non-navigational Uses of International Watercourses (hereinafter the “UN Watercourses Convention”), so that its terms apply only as between those two states in the SADC region.42 However, the more important contribution of international water and environmental law in the SADC region may be the extent to which its principles and associated policy tools are used by the states in the regional and basin treaties. Made under the SADC Treaty,43 the Revised Protocol on Shared Watercourses in the Southern African Development Community (“SADC-WP”) is an update of a 1995 protocol that was revised largely to bring the regional protocol into line with the UN Watercourses Convention and related international soft law 40  SADC, Climate Change Adaptation in SADC: A Strategy for the Water Sector, (2011), 11, 29; SADC, Regional Strategic Action Plan on Integrated Water Resources and Development Management 2011–2015 RSAP III, (2011). 41  VCLT Arts. 30, 31, 43, and 53. 42  Convention on the Law of the Non-Navigational Uses of International Watercourses, (1997). (Entry into force 17 August 2014. 36 state parties as at 1 September 2015). See also A. Dan Tarlock, The Potential Role of International Environmental and Water Law to Prevent and Mitigate Water-Related Disasters, chapter 8, in this volume. 43  SADC Treaty Art. 22.

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instruments.44 The preamble of the SADC-WP bears in mind the Helsinki Rules,45 and the adoption by the UN of the Watercourses Convention; it recognizes “the relevant provisions of Agenda 21”46 of the 1992 UN Earth Summit and (or including) “the concepts of environmentally sound management, sustainable development and equitable utilization of shared watercourses in the SADC region”;47 and, finally, within the body of the treaty, the State Parties “undertake to respect the existing rules of customary or general international law relating to the utilization and management of shared watercourses.”48 In addition, the SADC-WP then incorporates both the general principles and many of the specific provisions of the UN Watercourses Convention concerning planned measures, environmental protection, management, prevention and mitigation of harm, and emergency situations. The SADC member states thus chose to incorporate very specific developments in international water and environmental law into their regional framework, drawing on both a soft law instrument and a treaty to which few of them have acceded, as well as committing in the broadest terms to respect “existing” customary or general international law (presumably intended to mean as it stood at that time, although this is open to interpretation). The last provision could be read as redundant, in that states are not free to choose not to respect existing customary and general international law. But the decision to place this provision in the treaty suggests that any gaps in the specific subject matter of the treaty will continue to be covered by customary law, meaning the treaty does not purport to cover the entire field as between the parties to the exclusion of general international law. The Zambezi Agreement on the Establishment of the Zambezi Watercourse Commission, (“ZAMCOM Agreement”), is then made under the SADC Treaty and the SADC-WP as a specific river basin treaty. Its preamble in turn refers to the parties’ desire for management of the Zambezi “on the basis of” both the SADC-WP and the UN Watercourses Convention. Thus both the SADC regional treaty and the riparian states’ basin treaty both refer to the UN Watercourses Convention in a way that gives it a special status in understanding the approach of these treaties.

44   Replacing the Protocol on Shared Watercourse Systems in the Southern African Development Community Region (Repealed), (1995). 45  International Law Association, The Helsinki Rules on the Uses of the Waters of Inter­ national Rivers, (1967). (A non-binding international guideline). 46  Agenda 21, Ch. 18. 47  SADC-WP, Preamble. 48  SADC-WP, Art. 3(3).

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In addition to SADC and the Zambezi riparian states using international law instruments as a resource for a regional and basin treaty regime, the specific incorporation of international law principles, terms and concepts impacts the future interpretation of the SADC treaties should any disputes arise. The primary principles of treaty interpretation in the Vienna Convention require parties to interpret treaty terms in good faith according to their ordinary meaning, with regard to their context and the treaty’s objects and purpose.49 However, if a dispute could not be resolved by this approach, allowable supplementary means of interpretation would include the preparatory work and circumstances in which the SADC water treaties were made; and these would surely include the international instruments expressly drawn upon, and most likely the preparatory work of those instruments, as well as their supporting documentation.50 The relevant content of the international law principles, terminology and drafting that are incorporated into the SADC / Zambezi regime is discussed further in Part 4, where similarities and differences between the international and regional approaches are considered as part of examining the institutional mandates the regional and basin treaties establish. However, it is noted that the reliance on the UN Watercourses Convention thereby also draws on the work of the International Law Commission from 1971–1994, which identified the existing rules of customary international law as the basis for drafting that Convention,51 so that these are recognized as both customary norms and now treaty principles. International treaty and customary law concerning water, the environment, and general state relations provides a menu of well developed tools that can be used by states in regional and basin treaties, as SADC has chosen to do. When this is done expressly, as in the SADC-WP and the ZAMCOM Agreement, international law also becomes relevant as the basis for future regional and basin treaty interpretation. Depending on the exact coverage of issues in any one regional treaty, international customary law will also continue to fill the gaps not regulated by treaty, especially for the SADC-WP which restates this as a commitment of State Parties. However, it must be recalled that such regional and basin treaties are not made to fulfill or progress international law, but to fill a local need for management of shared watercourses. In this regard, it is important to turn to the water challenges of southern Africa, to understand 49  VCLT, Art. 31. 50  VCLT, Art. 32. 51  ILC, Draft articles on the law of the non-navigational uses of international watercourses and commentaries thereto and resolution on transboundary confined groundwater, Yearbook of the International Law Commission, Vol. II, Part Two (1994).

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the needs requiring regional and basin cooperation, before analyzing how well the SADC treaty regime is able to meet these regarding water-related disasters. 3

Southern Africa and the Zambezi Basin Water-related Disasters

3.1 The Region and the Basin The following overview of the water challenges and water-related disaster risks in southern Africa, including climate change projections, highlights the tasks that face the SADC and ZAMCOM institutions under the regional and Zambezi Basin treaty regime. The discussion focuses on the southern tip of the continent, the area more traditionally described as ‘southern Africa’, rather than the whole SADC region. Essentially this is from the Zambezi Basin southward, taking a line across southern Angola, Namibia, Botswana, Zimbabwe, southern Zambia, southern Malawi, and Mozambique, including South Africa, Lesotho and Swaziland to the south.52 Within southern Africa, the 1,599 mile-long Zambezi River is the largest of the transboundary rivers, running generally from the western to the eastern side of the continent. The upper Zambezi rises in Zambia, after which the catchment basin traverses the territory of Angola, Namibia and Botswana, before the river turns east and tumbles over the renowned Victoria Falls. From there, the middle Zambezi forms the border of Zambia and Zimbabwe until it enters Mozambique, along the way receiving water from major tributaries from Zambia. In Mozambique, the lower Zambezi is joined by a major tributary flowing from Lake Malawi/Nyasa, in Tanzania and Malawi, before meandering across the extensive delta wetlands and eventually emptying into the Indian Ocean. Thus, the Zambezi Basin has eight riparian states—Zambia, Angola, Botswana, Namibia, Zimbabwe, Malawi, Tanzania and Mozambique, in approximate geographical order.53 The Zambezi Basin geography has been significantly altered by the construction of two dams that created very large lakes on the Zambezi main channel, and which have a big impact on the basin system,54 having changed the 52  Excluding the Congo Basin and Great Lakes regions in the northern part of the SADC region. 53  UNEP, Atlas of International Freshwater Agreements, (2002). 54  Two other significant dams were built on major tributaries of the Zambezi within Zambia, on the Itezhi-Tezhi and Kafue Rivers.

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basin’s hydrology and modified flooding cycles.55 Both were constructed for hydropower generation. Kariba Dam was completed by Zambia and Zimbabwe in 1959 on a section of the middle Zambezi River where it forms their border; the resulting Lake Kariba stretches about 300km, and remains one of the largest artificial lakes in the world.56 Kariba Dam is jointly owned and administered by Zambia and Zimbabwe under the bilateral treaty and matching legislation that created the Zambesi River Authority (ZRA) in 1987.57 Cahora Bassa Dam was completed in 1974, and is operated by Hidroeléctrica de Cahora Bassa (HCB), majority-owned by Mozambique.58 Although within Mozambique’s territory, water levels in Lake Cahora Bassa affect the upstream Zambezi flood plains in Zambia/Zimbabwe.59 3.2 Water Resources and Challenges The average annual rainfall in the southern tip of Africa is well below the global average of 860 mm (most of the area has less than 500 mm), but precipitation is highly skewed, with higher rainfall in the north and east of the region and lower rainfall in the south and west.60 Significantly, the most economically diverse countries, in particular South Africa, are on the ‘wrong side’ of the rainfall distribution so the highest per capita water user states in the region also have the lowest rainfall.61 There is also high evaporation, with a low ten percent of rainfall converting into water flowing into the SADC region’s transboundary rivers, (compared with the African average of 20 percent, in contrast with Asia & North America at 45 percent).62 Rainfall over most of this region is also markedly seasonal, with the majority of the rain falling in the summer half of the year (October–March), peaking in December–February when most of southern Africa receives 80 percent 55  SARDC et al., Zambezi River Basin—Atlas of the Changing Environment, (2012), 14. 56  SARDC et al., (2012) 14–15. 57  The ZRA is discussed further in Part 4. 58  Mozambique was under Portuguese colonial and HCB was Portuguese-owned until a 2007 sale agreement sold majority Mozambique, now 85%. See: Hidroeléctrica de Cahora Bassa: Energy for the future, Business Excellence, (13 January, 2011), http://www.bus-ex .com/article/hidroel%C3%A9ctrica-de-cahora-bassa. 59  SARDC et al., (2012), 16. 60  Mozambique and Malawi each have up to 1000mm pa, while Namibia and South Africa have less than 200mm average, including extremely arid areas with almost no precipitation. See: Turton, (2010), 8. 61  Turton, (2010), 8. 62  Africa 20%, Australia & Europe 35%, South America 43%, Asia & North America 45%. See: Turton, (2010), 9–10, Figure 1.

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of its annual rainfall; some areas receive as much as 90 percent in those 3 months.63 This pattern of intense wet seasons and long dry seasons is reflected in the fluctuations of the natural water levels of its rivers across the year, with frequent wet season floods (although water flows are partially controlled by large dams on the Zambezi). Tropical cyclones also affect the eastern coastline at the peak of the wet season, often causing or exacerbating floods in Mozambique, Malawi and eastern Zimbabwe. The region’s weather is influenced by both the Indian and the Atlantic Oceans, as well as continental climatic patterns, which cause high rainfall variation between years, or in cycles of years, meaning peak flooding some years, and extremely dry seasons in others that may stretch over several years to become major droughts.64 The high rainfall variability has also led to a strong reliance on groundwater by between 60 and 70 percent of southern Africa’s residents,65 although its recharge mechanisms are often unknown locally.66 Although underground aquifers are hydrogeologically part of the larger river basin systems,67 so far there is little regulation for sustainability within each country, or calculation of the effects on transboundary waterways,68 although SADC is now initiating research and cooperation on groundwater extraction.69 Overall, the region faces the baseline challenges of low average rainfall, high evaporation rates, and high seasonal and inter-annual variation in rainfall (long dry seasons, floods and droughts), as well as high groundwater withdrawals.

63  As recognized in SADC’s regional approach. See: C.L. Davis (Ed.), Climate Risk and Vulnerability: A Handbook for Southern Africa, (2011), 9. 64  Including the El Niño Southern Oscillation (ENSO), the ‘Inter-Tropical Convergence Zone’ (ITCZ) convection currents around equatorial Africa, and the ‘Botswana Upper High Influence,’ an anti-cyclone system. See: Davis (Ed.), (2011), 9. 65  60% estimate from: AMCEN & UNEP, Africa Environment Outlook: Past, present and future perspectives, http://www.unep.org/dewa/africa/publications/aeo-1/032.htm; and over 70% estimate from: SADC, Sustainable Groundwater Management (2014), 3. 66  Jude Cobbing & Jeff Davies, Groundwater—returning to the sources, Planet Earth Online (2010), avaiable at http://planetearth.nerc.ac.uk/features/story.aspx?id=666. IAEA, Sus‑ tainable Development of Groundwater Resources in Southern and Eastern Africa: Regional Technical Co-operation Project RAF/8/029, (c.2004). 67  FAO, Global interactive maps, AQUASTAT Global Water Information System, (1 May 2015), http://www.fao.org/nr/water/aquastat/main/index.stm. 68  SADC, Sustainable Groundwater Management in SADC Member States Project: Parts 1 and 2 [Consultation Draft], (2014). 69  SADC, Sustainable Groundwater Management, (2014).

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3.3 Projected Impacts of Climate Change The 2014 reports of the IPCC cite evidence that warming across Africa has already increased and that temperatures will rise faster than the global average, especially in the arid areas.70 This could exceed a 2°C increase by the end of the century over extensive areas of Africa. Heatwaves and warm spells will likely increase in length and there will be more hot days in total, increasing evaporation and exacerbating seasonal water stress in southern Africa. Rainfall changes are already observed in southern Africa, including reduced late summer rain (the wet season) from Namibia to Angola, and slightly less rainfall overall for Botswana, Zimbabwe and South Africa.71 The IPCC projects a continuing trend that the summer rains will come later, creating a longer dry season,72 and that droughts will intensify.73 Rainfed small-scale agriculture and grazing will be especially impacted by such long dry periods,74 affecting regional food security, as only around five percent of cultivated land in the region is equipped for irrigation.75 Overall, the IPCC’s projected impacts of climate change on water resources include less water in rivers, more intense high and low river flows, more floods, and increased risk of both water pollution and decreased water quality, linked to erosion, high rainfall events and increased water temperature.76 The IPCC concludes that for Africa as a whole, climate change will “amplify existing stresses on water availability,”77 causing “compounded stress on water

70  IPCC, Climate Change 2014—Synthesis Report, (2014); IPCC, Climate Change 2014— Synthesis Report: Summary for Policymakers, (2014); IPCC, Climate Change 2014: Ch. 22— Africa in Impacts, Adaptation, and Vulnerability. Fifth Assessment Report (AR5)—IPCC Working Group II (Draft October 2013, Subject to Final Copy Edit), (2014), (hereinafter ‘IPCC, WGII, AR5’), paras. 22.2.1.–22.2.1.2. 71  IPCC, WGII, AR5, (2014) para. 22.2.2.1. 72  IPCC, WGII, AR5, (2014) para. 22.2.2.2. (Findings that are consistent with earlier southern Africa projections based on downscaled climate modeling, reported in: Tadross et al., Regional scenarios of future climate change over Southern Africa, in Davis (ed.), (2011), 31–49.) 73  IPCC, WGII, AR5, (2014), para. 22.1.2.2. Based on: IPCC, Special Report on Managing the Risks of Extreme Events in Disasters to Advance Climate Change Adaptation (SREX), (2012). 74  IPCC WGII AR5, (2014), para. 22.3.4. 75  SADC Water Sector CCA Strategy (2011), 23. 76  Tadross et al., in Davis (ed.) (2011), 60. 77  IPCC WGII AR5, (2014). Executive Summary, citing paragraphs 22.3.22, 22.3.3.

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resources” that is the highest regional risk from climate change,78 and that as yet there is little institutional capacity for effective CCA measures.79 A particular type of compounded water stress for southern Africa may come from the region’s present and planned reliance on both hydroelectricity and irrigation, two major uses whose continued growth may soon become a tradeoff against each other requiring a policy choice.80 Recent studies highlight the vulnerability of existing hydropower capacity in the region, facing increasing unreliability due to climate change.81 Low river and dam levels have affected Kariba’s hydropower production in the past, including in 1992 after a prolonged regional drought.82 This occurred again in 2015, following a relatively minor drought, but with the compounding effects of population growth and new economic demands in the intervening decades.83 This risk is being considered by the bilateral ZRA as a need to diversify power production capacity in the face of climate change,84 but the broader question of water use priorities for a dwindling resource is clearly ripe for multi-lateral cooperation, as recognized in SADC’s 2011 water sector climate change adaptation strategy.85 78  IPCC, Climate Change 2014—Synthesis Report: Summary for Policymakers, (2014), 14. Figure SPM.8 79  IPCC WGII AR5, (2014). Executive Summary, citing paras. 22.4.2–22.4.4. 80  Randall Spalding-Fecher et al., Water Supply and Demand Scenarios for the Zambezi River Basin. Climate Change and Upstream Development Impacts on New Hydropower Projects in the Zambezi Project, (University of Cape Town, 2014), Conclusions, 67–68. 81  Richard Beilfuss, A Risky Climate for Southern African Hydro: Assessing Hydrological Risks and Consequences for Zambezi River Basin Dams, (2012), 6–7; Spalding-Fecher et al. (2014), (Results, 41–65; Conclusions 67–68, modeling different scenarios based on policy priorities for water supply and demand). 82  SARDC et al., (2012), 46. 83  Kariba Dam had less than 40% capacity in July 2015 and was dropping rapidly, resulting in severe electricity rationing in Zambia and Zimbabwe, both of which rely on the dam for the majority of their power production. See ZRA, Lake Levels (Kariba) (16 July 2015), http://www.zaraho.org.zm/hydrology/lake-levels); Laura Sustersic, Multilateral versus bilateral agreements for the establishment of river based organizations: comparison of legal, economic and social benefits in the Zambian experience, LARS 2007—Lake Abaya Research Symposium, University of Siegen, Germany, (2007). 84  Mukosa et al., Transboundary Issues on Sustainable Hydropower Development in the Zambezi River Basin in the Eyes of the Zambezi River Authority, Hydropower Sustainability Assessment Forum Meeting, Ministry of Energy and Water Development, Kafue Gorge Regional Training Center, Zambia (ZRA, Lusaka, 2008); Lucy Burton, Weak Kariba Dam wall threatens Zambia’s energy security, BBC News, (16 January 2015), available at: http:// www.bbc.com/news/business-30850591. (Audioviusal interview, Mr. Partson Mbiri, Permanent Secretary & Chairperson, ZRA, attributing low water levels to climate change). 85  SADC, Climate Change Adaptation in SADC: A Strategy for the Water Sector (2011) (Hereafter SADC Water Sector CCA Strategy).

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3.4 Water-related Disaster Risks Water-related disaster risks in southern Africa include floods, droughts, water stress/scarcity and river water pollution. All of these affect shared watercourses, including the Zambezi, for which regional and/or river basin cooperation is required for effective management. Each disaster type is described briefly below. 3.4.1 Floods and Droughts Major floods and droughts remain the triggers for devastating disasters in the region. These tend to be part of alternating cycles, although sometimes they are more localized, so that both can occur in different parts of the region, or even the same locality, in a given year. For example, the Zambezi Basin states experienced severe droughts in 1967–73, 1981–83, 1991–92—the most severe recorded to that time—and in 1994–95—which was even more severe. They then faced major floods in 1999–2000, induced by Cyclone Eline, during which 800 people in Mozambique lost their lives.86 In 2001–2003 major floods affected the whole region. Then 2003 became a drought year, but major floods followed again in 2005–2006—in parts of Mozambique and Zimbabwe—and 2007—induced by Cyclone Favio and affecting Mozambique and parts of Zimbabwe. In 2008–2009 upper basin flooding displaced thousands of people in Angola, Botswana, Malawi, Namibia and Zambia.87 Finally, 2015 saw both January flooding in Malawi and Mozambique, including a cholera outbreak that affected 9,500 people, requiring a humanitarian response,88 and a midwet-season drought from February that reduced Zimbabwe’s maize crop by 50 percent, meaning that by mid year there were an estimated 1.5 million people facing food shortages.89 The extent to which river floods cause disasters depends on factors such as early warning systems, the nature of riverside development (principally whether urban areas are built on flood plains) and the capacity to moderate peak flows, primarily through the use of large dams. Prior to completion of the large Zambezi dams there was an annual flood in the lower Zambezi in February or March, but the dams stopped these occurring. They did not, of course, alter the flood risk for the upper river (above Victoria Falls). An unfortunate side-effect of controlling the annual flood in

86  SADC Water Sector CCA Strategy (2011), 27. 87  SARDC et al., (2012), 44–45. 88  O CHA, The 2014/2015 Southern Africa Flood Season, Humanitarian Bulletin, Southern Africa, (May 2015). 89  United Nations, Office of the UN Resident Coordinator, Response Plan Zimbabwe: Food Insecurity 2015, September 2015 (Draft) (2015).

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the middle to lower Zambezi, was that this encouraged settlement in the fertile floodplains, thereby increasing people’s exposure to the larger floods that occur on the river every five to ten years, and which the dams do not have the spillway capacity to prevent.90 The dam operators have limited capacity to mitigate peak floodwaters, for if very high floodwaters threaten the dam wall, the best they can do is moderate the flow for a few days to give downstream communities time to evacuate. The decisions made about water releases from Kariba and Cahora Bassa dams during peak floods have had significant impacts on flooding in the lower Zambezi, both negative impacts when cooperation was lacking during armed conflict, and positive when cooperation was effective.91 Flood and drought mitigation using existing dams would seem a logical role for a river basin authority, and in fact SADC has recognized the importance of systematized dam usage, both within and between river basins, for both drought and flood mitigation.92 The Kariba management regime in particular has a huge potential impact on the overall transboundary basin management of the Zambezi by ZAMCOM.93 But currently the Zambezi’s large dams are controlled by corporations (albeit government-owned), whose priority is hydropower generation. They pre-date the ZAMCOM Agreement, but the ZRA in particular is based on a bilateral treaty between two of the ZAMCOM Agreement state parties, and this requires them to harmonize pre-existing treaties concerning the river.94 Mitigation of drought through multi-purpose water storage is also a necessary adaptation measure for the region, which currently lacks water storage infrastructure; sub-Saharan Africa as a whole stores only 4 percent of annual runoff compared with 70–90 percent in most industrialized countries.95 3.4.2 Water Stress and Scarcity Some countries in the region now face a chronic shortage of water, described as “water stress” and “water scarcity”.96 This results from a combination of 90  Álvaro Carmo Vaz, Coping with floods—the experience of Mozambique, 1st WARFSA/ Waternet Symposium: Sustainable Use of Water Resources, (Eduardo Mondlane Uni­ versity, Maputo 2000), 8. 91  Carmo Vaz, (2000), 8. 92  SADC Water Sector CCA Strategy (2011), 28. 93  World Commission on Dams et al., Kariba Dam Zambia and Zimbabwe. Final Report: World Commission on Dams (WCD Case Study). (Cape Town, SA 2000). 94  Sustersic, (2007), 3, citing ZAMCOM Agreement Article 18. 95  SADC Water Sector CCA Strategy (2011), 21. 96  See further, A. Dan Tarlock, The Potential Role of International Environmental and Water Law to Prevent and Mitigate Water-Related Disasters, chapter 8, in this volume.

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­ atural and human-made phenomena, in that physical scarcity of water is n compounded by population growth, industrial uses and their impacts on water access and quality.97 Water scarcity is the point where the impact of all users on the quantity and quality of the water under the current institutional management arrangements means that the demand by all sectors—including the environment—cannot be met.98 The population-water equation, or “real” scarcity, gives a good overall indication of the water issues facing southern Africa.99 On this basis, South Africa, Malawi, Lesotho and Zimbabwe are already facing water stress; and South Africa and Malawi are both very close to water scarcity.100 Equitable distribution needs, pollution controls and efficient usage are among the policy approaches needed to mitigate water scarcity.101 The SADC and ZAMCOM treaty regime could provide an opportunity for regional and river basin cooperation in these areas. South Africa, Swaziland and Zimbabwe also use much more water per person than other countries of the region, and withdraw significantly higher proportions of their renewable water resources each year.102 This demand is mainly a result of economic activity, and will grow in these and the other SADC states as population and economic diversity increases. The alreadyhigh water users may soon approach high water stress,103 creating additional demand for intra-basin and inter-basin transfers from other SADC states.104 As yet there has been little use in the region of alternative water supply sources such as desalination, wastewater reuse and green water.105 There is also very

97  UNDESA, Water Scarcity (9 May 2015), http://www.un.org/waterforlifedecade/index .shtml. 98  Ibid. 99  Ibid. The water stress indicator is when there is less than 1,700 m3 per person per year; water scarcity is below 1,000 m3 per person, and below 500 m3 is “absolute scarcity”. 100  Global interactive maps, FAO AQUASTAT (2015). 101  M. Falkenmark, et al., On the Verge of a New Water Scarcity: A Call for Good Governance and Human Ingenuity, (Stockholm International Water Institute, 2007), 7–10. 102  Renewable water resources withdrawn: SA 24%; Swaziland 23%; and Zimbabwe 21%. C.f. Malawi under 8% and each of Angola, Botswana, Lesotho, Namibia, Mozambique and Zambia withdrawing less than 2%. See: Irrigation water requirement and water withdrawal by country, FAO AQUASTAT, (2015). 103  High water stress occurs if the proportion of withdrawal of a country’s renewable water resources reaches 40 percent. See M. Falkenmark, et al., (2007), citing United Nations, Comprehensive Assessment of the Freshwater Resources of the World (1997). 104  SADC, SADC@35: Success Stories. Vol. 1, (2015), 19. 105  SADC Water Sector CCA Strategy (2011), 23–24.

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little rainwater harvesting, or management of the demand side through water use efficiency.106 So far water stress in the Zambezi Basin has been seasonal or related to periods of drought, which is likely to worsen with climate change. However, as with the region as a whole, the biggest impact on overall water availability in the basin in the near future will come from population growth (including urbanization within the basin) and economic development, including irrigation for food production.107 3.4.3 Water Quality There is a “a general trend in the SADC region towards a deterioration of water quality.”108 The intense utilization of some river basins has already led to full (or almost full) allocation of all available water resources, such in the Incomati, Limpopo and Orange/Senqu basins that traverse South Africa.109 The water quality impacts of such usage in the South Africa portions of these rivers includes excess nutrients associated with sewage treatment and agriculture, causing toxic blue-green algal blooms, and chemical and heavy metal contamination from gold and coal mining that can cause serious and long-term health problems to people who consume or use the water, as well as affecting ­agriculture.110 Water pollution in the region is expected to increase with economic development, population growth and urbanization.111 In addition, water supply and sanitation is still low in most SADC countries, where in 2011 more than 98 million people did not have access to safe drinking water and close to 154 million did not have access to improved sanitation.112 There is no publicly available data on water pollution in the Zambezi, although water quality in Lake Kariba is monitored by the ZRA as part of its dam management role.113 However, uses of the basin that are well recognized as risk factors for water pollution include: urban and industrial activities; mining of coal, gold,114 and copper;115 agriculture; aquaculture; and boats (oils 106  SADC Water Sector CCA Strategy (2011), 21, 28. 107  SARDC et al., (2012), 34–39. 108  Turton, (2010), 20. 109  Turton, (2010), 20. 110  Turton, (2010), 20, fns. 27, 28, 29. 111  SADC Water Sector CCA Strategy (2011), 29. 112  SADC Water Sector CCA Strategy (2011), 22. 113  Mukosa et al. (2008) 5. 114  SARDC et al., (2012), 41; Turton, (2010), 20. 115  Michael James Tumbare, Managing Lake Kariba sustainably: threats and challenges, Man­ agement of Environmental Quality an International Journal, 19/6 (September 2008), 733.

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and waste, especially from the large number of fishing boats on Lake Kariba).116 Deforestation, land degradation and soil erosion in the basin also affect water quality,117 while warming of the river water due to climate change will increase the occurrence of “water-borne, vector-borne and respiratory diseases”, with particular concern over increased numbers of malaria-carrying mosquitoes.118 Water-borne disease outbreaks and industrial accidents can also cause rapidonset disasters. Although the Zambezi Basin is not yet intensely utilized, the uses identified are likely to have an increasing impact on water quality, with the impacts of economic development and population growth in the riparian states119 compounded by climate change.120 Overall, the Zambezi Basin communities continue to face the risk of flood disasters, which are mitigated in the lower basin by dam management, but which now hit especially hard during major flood years due to increased floodplain settlement. The intensity of floods and droughts are likely to worsen with climate change, and there is an increasing risk of both seasonal and absolute water scarcity, as well as higher levels of water pollution due to intensifying water use and population growth. While all these issues are matters for national regulation, it is clear that they cannot be managed in the Zambezi Basin by one state acting alone. So far as reducing water-related disasters is concerned, there is a clear role for regional and basin level cooperation based on IWRM.121 4

SADC and Zambezi Basin Shared Watercourse Regime

4.1 The SADC and Zambezi Treaties and Institutions There are three levels to shared watercourse cooperation in the SADC region. These are the SADC Treaty itself, the SADC-WP, made under the parent treaty as a framework protocol for basin level agreements, and finally the basin level treaties made under the regional umbrella, in this case the ZAMCOM Agreement.

116  Tumbare, (2008), 733. 117  SARDC et al., (2012), 37, 47–48, 53. 118  SARDC et al., (2012), 63. 119  SARDC et al., (2012), 37, 39, 41. 120  SADC Water Sector CCA Strategy (2011), 29. 121  SADC Water Sector CCA Strategy (2011), 29.

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The SADC Treaty requires member states to cooperate in fostering both regional development and economic integration based on “balance, equity and mutual benefit” (a key principle of the treaty), including harmonizing macro-economic and sectoral approaches in specific areas of cooperation.122 Although water is not listed separately, natural resources and the environment is one of the specific areas of cooperation, as well as the related areas of food security and agriculture, infrastructure, and diplomacy, peace and security. The treaty provides for additional areas to be decided by the SADC Council,123 and one mechanism to do this is through protocols, such as the SADC-WP.124 Each protocol requires separate accession by member states. 4.1.1 The SADC Water Protocol The SADC-WP shares the parent treaty’s broad objectives for alleviation of poverty, sustainable socio-economic development and regional integration, and has as its primary focus closer cooperation for the “judicious, sustainable and co-ordinated management, protection and utilization of shared watercourses.”125 It covers all uses of shared watercourses, including ­navigation.126 The SADC-WP thus has a broad development agenda aligned with that of the SADC Treaty, in addition to expressly situating itself within international developments in water law, as discussed in Part 2 above. Since it is part of SADC Treaty arrangements, the SADC-WP does not need to establish an entirely separate institutional structure, relying on implementing institutions within SADC and its Secretariat, including its existing dispute settlement mechanisms.127 However, it does establish some specific institutional structures, the SADC Water Sector Organs of: the Committee of Water Ministers; the Committee of Water Senior Officials; the Water Sector Co-ordinating Unit; and the Water Resources Technical Committee.128 These are operational, with the Water Sector Co-ordinating Unit established as the Water Sector Division under the SADC Secretariat Directorate for Infrastructure and Services. This Division is mandated to coordinate and facilitate regional water related

122  SADC Treaty, Arts. 21(1) & (2). 123  SADC Treaty, Arts. 21(3) & (4). 124  SADC Treaty, Art. 22. 125  SADC-WP, Art. 2. 126  SADC-WP, Art. 3(2). 127  SADC-WP, Arts. 5 and 7. 128  SADC-WP, Art. 5.

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­activities with SADC member states, and in particular to support implementation of the SADC-WP and its policies.129 The policy frameworks for implementing water cooperation under the SADC-WP include the Regional Water Policy,130 the Regional Water Strategy131 and the Regional Strategic Action Plan on Integrated Water Resources and Development Management 2011–2015—RSAP III (which was first approved by the SADC Summit in 1998 and runs in five-year phases).132 Finally, the 2011 Climate Change Adaptation in SADC: A Strategy for the Water Sector, is an integrated water management strategy developed around climate risk, following extensive stakeholder consultation, which takes into account all the disaster risks discussed, including floods and droughts, water scarcity and water pollution. 4.1.2 Zambezi Basin Treaties The only treaty for the entire Zambezi basin is the ZAMCOM Agreement made under the SADC-WP framework.133 This treaty had a long incubation period, starting with the 1987 Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River system (‘ZACPLAN’).134 This largely donor-driven initiative was intended to establish a basin wide commission but, while important policy, coordination and environmental conservation work was done under its umbrella, it did not become the hoped-for vehicle for basin management.135 However, one of the many 129  The SADC Water Sector, SADC, (2015), http://www.sadc.int/. 130  SADC, Regional Water Policy, (2005). 131  SADC, Regional Water Strategy, (2006). 132  SADC, Regional Strategic Action Plan on IWRDM (2011). The RSAP III is now also the focus for groudwater coordination in the region and the SADC Groundwater Management Institute is being established at the University of the Free State in Bloemfontein, South Africa, as part of a World Bank project. See: Africa—Sustainable Groundwater Management in SADC Member States: P127086—Implementation Status Results Report: Sequence 01. ‘Project Document No. 0000a8056. World Bank, (2015), available at http://documents.world bank.org/curated/en/2015/02/24055244/africa-sustainable-groundwater-managementsadc-member-states-p127086-implementation-status-results-report-sequence-01. 133  Agreeement on the Establishment of the Zambezi Watercourse Commission (‘ZAMCOM Agreement’), (2004). 134  Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System (‘ZACPLAN’), (1987), (Signed by 5 riparain states: Botswana, Mozambique, Tanzania, Zambia, Zimbabwe). 135  Turton, (2010), 31, citing International Waters in Southern Africa, 136–63, (Nakayama M. ed., 2003).

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positive developments from ZACPLAN was the drafting of the original SADC Water Protocol, as the basis for eventually establishing ZAMCOM and other basin commissions.136 The ZAMCOM Agreement was negotiated and signed by seven of the eight riparian states in 2004. Zambia had withdrawn from the negotiations in late 1998, reluctant to enter the agreement if it did not contain water allocation entitlements, as the majority of the runoff into the Zambezi comes from Zambian territory.137 The ZAMCOM Agreement entered into force with seven accessions in 2011, and now includes all eight riparian states of the Zambezi Basin, following Zambia’s accession in 2013.138 The state parties are Angola, Botswana, Malawi, Mozambique, Namibia, Tanzania, Zambia and Zimbabwe. The essential objective of the ZAMCOM Agreement is “to promote equitable and reasonable utilization of the water resources of the Zambezi Watercourse as well as the efficient management and sustainable development thereof” (Article 5). It establishes the Zambezi Watercourse Commission and its organs, which are the Council of Ministers, the Technical Committee and the Secretariat.139 While the Council has a political oversight and governance role, the Technical Committee has, among other tasks, the key function of fleshing out procedures for equitable and reasonable use.140 ZAMCOM is still a new and developing institution. Having had an Interim Secretariat in Gabarone from May 2011, its first Technical Committee meeting was held in November 2012, the Council of Ministers was established and met for the first time in May 2013,141 and the permanent Secretariat in Harare has been in place only since January 2015.142 Its work plan for 2014–17 is relatively modest, ­concerned with institution-building, strategic planning for basin management, 136  Turton, (2010), 39, citing P Ramoeli, SADC Protocol on Shared Watercourses: Its history and current status’, in Hydropolitics in the Developing World: A Southern African Perspective, 105–11. (A.R. Turton & R. Henwood Eds., 2002). 137  Sustersic, (2007) 134. 138  Zambia was the only basin state that had not signed the treaty in 2004. On 30 October 2013 the Minister for Mines, Energy and Water Development announced to the Parliament that Zambia had acceded to the ZAMCOM Agreement through his ministry: see Daily Parliamentary Debates For Third Session Of The Eleventh Assembly, The Zambian Parliament, (2013). 139  Z AMCOM Arts. 5 & 6 (Commission objectives, functions & organs), Arts. 7 & 8 (Council of Ministers), Arts. 9 & 10 (Technical Committee), Art. 11 (Secretariat). 140  Z AMCOM Agreement, (2004). 141  Press Release, ZAMCOM, (31 May 2013), available at http://www.zambezicommission.org. 142  Press Release, Permanent Zambezi Watercourse Commission (ZAMCOM) Secretariat Fully Operational, ZAMCOM, (22 January 2015), available at http://www.zambezi

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and developing basin resource data.143 This analysis is therefore based primarily on its treaty mandate, rather than on completed and published outcomes. However, it has inherited some work in progress from the ZACPLAN era, and some initiatives underway give an indication of its priorities so far. One of these is the web-based Zambezi Water Information System (ZAMWIS), initiated some years ago, and for which ZAMCOM has now received World Bank financing.144 Once fully operational it will provide real time hydrometeorological data, as well as analysis and research reports, and could be a key tool for early warning of water-related hazards in the basin, both rapidonset and slow-onset.145 As noted earlier, the ZRA, the creation of a bilateral treaty and matching national legislation by Zambia and Zimbabwe, also continues in operation.146 Although the mandate of the ZRA is drafted in broad terms concerning river management,147 this must be interpreted as applying only to the section of the river that is part of Zambian and/or Zimbabwean territory. Its role is essentially bilateral management of Kariba for hydropower production, not government of the different uses of the river in the context of the whole basin.148 The ZRA’s practical mandate therefor overlaps with only part of that of ZAMCOM in a geographical sense, being the middle Zambezi, but the importance of its role in river management and flood mitigation through Kariba Dam does create a potential conflict. The ZAMCOM Agreement makes provision for Member States to remain parties to pre-existing or other river basin agreements, as long as these are harmonized (Article 18). It is possible that such harmonization could be done procedurally, such as through a supplementary agreement on information sharing or participation in decision-making, but the wording does

commission.org/index.php?option=com_content&view=article&id=42:pressrelease&catid=14&Itemid=118. 143  Z AMCOM Work Plan and Expected Outcomes (2014–2017), ZAMCOM, (October 2015), http://www.zambezicommission.org. 144  Projects and Operations, Zambezi Water Resources Information System (ZAMWIS), Enhancement 3: Hydro-Met Database And Decision Support System, World Bank, (15 September 2015), available at http://www.worldbank.org/projects/procurement/ noticeoverview?id=OP00034385. 145  Z AMWIS Web Resource, ZAMCOM, (October 2015), www.zamwis.org/. 146  Agreement between the Republic of Zimbabwe and the Republic of Zambia concerning the utilization of the Zambezi River, (1987) (‘ZRA Agreement’); Zimbabwe, Zambezi River Authority Act, 1987; Zambia, Zambezi River Authority Act Cap 467, CH 467, 1987. 147  Z RA Agreement, Art. 9. 148  Sustersic, (2007), 135.

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suggest the treaties themselves should be harmonized.149 This remains an outstanding issue for Zambezi Basin management, although it does not appear to be a source of conflict at present, as in practice the ZRA participates in and resources cooperative water management initiatives for the Zambezi. 4.1.3 “Shared Watercourse” versus “River Basin” It should be noted that the subject matter of both the SADC-WP and the ZAMCOM Agreement is defined by the concept of a “watercourse”.150 Like the UN Watercourses Convention definition of “international watercourse” on which the SADC-WP is based, they do not use the terminology of “river basin.”151 The definition of “watercourse” in the SADC-WP’s drafting refers to a “system of surface and ground waters consisting by virtue of their physical relationship a unitary whole, normally flowing into a common terminus such as the sea, lake or aquifer.”152 This is echoed in the ZAMCOM Agreement’s definition of the “Zambezi Watercourse,” which describes the hydrology of the river basin as a “unitary whole” with its common terminus at the Indian Ocean.153 These materially identical definitions describe the hydrology of a river basin, less the environmental and ecosystem management aspects, which does not encompass the entire river basin or catchment environment.154 However, it is here argued that the SADC-WP and ZAMCOM treaties (as well as the UN Watercourse Convention) do in fact concern the entire river basin when the treaties are considered as a whole. The provisions on environmental protection and preservation of watercourse ecosystems, as well as the description of planned measures or programs affecting the watercourse, and the nature of emergencies, mean that the treaties actually require and mandate sustainable environmental management of entire river basins. They are concerned with the hydrology, the watercourse ecosystems and the general environment, even though terms such as “river basin” or “catchment” are not used.155 For these reasons, the terms “watercourses” and “river basins” are used interchangeably 149  Sustersic, (2007), 134. 150  SADC-WP, Art. 1, ‘Shared Watercourse’; ZAMCOM, Art. 1, ‘Zambezi Watercourse’. 151  U NWC, Art. 2, ‘International watercourse’. 152  SADC-WP, Art. 1. 153  Z AMCOM, Art. 1. 154  Cf., A. Dan Tarlock, The Potential Role of International Environmental and Water Law to Prevent and Mitigate Water-Related Disasters, chapter 8, in this volume. 155  SADC-WP Arts. 1–4 (objectives, general principles, and specific provisions, including emergencies); ZAMCOM Arts. 12–14, 16–17 (principles, and general responsibilities of states, including emergency provisions); UNWC Arts. 5–28 (principles, specific provisions and emergency provisions).

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in this discussion, and the ZAMCOM Agreement is described as a river basin treaty. 4.2 The Treaties’ Shared Watercourse Management Principles The SADC-WP and ZAMCOM treaties both set out general principles and objectives that include key international law principles (largely derived from the UN Watercourses Convention), as well as building these and local priorities into the specific treaty provisions. The SADC-WP includes the following international law principles that are also either listed as such or incorporated into the provisions of the UN Watercourses Convention. These are: (1) equitable and reasonable utilization of transboundary water resources (to which SADC-WP adds “sustainable” use and “for the benefit of current and future generations”),156 including participation by all affected state parties;157 (2) the obligation not to cause significant transboundary harm, while also recognising state sovereignty within national borders,158 part of which requires states to take necessary action to prevent and mitigate harmful conditions, including pollution control and ecosystem damage;159 (3) the general requirement of cooperation between states including, in the context of watercourses, the exchange of information, data and notice of planned measures;160 and (4) peaceful settlement of international disputes.161

156  SADC-WP Arts. 2, 3, especially Art. 3(4), (7) & (8) defining equitable and reasonable use as including sustainable development and future generations; UNWC, Art. 5. 157  SADC-WP, cooperation and regional integration implying full participation is the overall objective of the treaty in Art. 2, reiterated in Art. 3(7), with a specific recognition of sovereignty in Art. 3(2); UNWC, Art. 6. 158  SADC-WP Arts. 3(2),(3),(10), 3(2)(b) (pollution); UNWC, Art. 7; See: Philipe Sands et al., Principles of International Environmental Law, (2012), 187–88; Rio Declaration on Environment and Development, (1992), Principle 2; Stockholm Declaration, (1972), Principle 21. 159  SADC-WP Art. 4(4); UNWC, Arts. 20, 21 26–28 embody this principle. See: Sands et al., (2012) 187–188, 200–203. (Noting this established customary rule is closley related to the obligation not to cause significant transboundary harm.) 160  SADC-WP Arts. 3(5),(6), 4(1); UNWC, Arts. 8, 9, 11. See: Sands et al., (2012) 187–188, 203–205 (noting this is an established customary law principle); Rio Declaration, (1992), Principle 27; Stockholm Declaration, (1972), Principle 24; UN Charter, Arts. 1(3) & 74. 161  SADC-WP Art. 7; UNWC, Art. 33; UN Charter, Art. 33.

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The addition of the term “sustainable” to equitable and reasonable utilization echoes the SADC Treaty and is also in concert with the international approach of sustainable development,162 a concept that has evolved in the policy debates since the 1987 Brundtland Report and is now affirmed by the UN with the adoption of the SDGS.163 The SADC-WP further supplements the established international law principles of the UN Watercourses Convention with regional concerns over sustainable development. It introduces: (1) The IWRM approach by describing “the unity and coherence of each shared watercourse” as entailing the need to harmonize all the uses in the shared watercourse consistent with sustainable development and regional integration;164 (2) The sustainable development approach of maintaining a “proper balance between resource development for a higher standard of living for their people and conservation and enhancement of the environment to promote sustainable development”;165 and (3) The idea of inter-generational equity. This expands the principle of “optimal and sustainable utilization” by enjoining state parties to adequately protect watercourses “for the benefit of current and future generations.”166 Inter-generational equity may be regarded either as an element of sustainable development, or as an emerging independent principle of international environmental law.167 Either way, its inclusion in the SADC-WP provides a very good basis for consideration of the needs of future generations in water management in general, including river basin management, and provides a solid opening for consideration of climate change projections. This is in addition to protecting the watercourse itself for future generations (although inter-generational risks must surely be implied in any watercourse protection regime if it is to be considered inadequate).

162  Sands et al., (2012) 87–188, 206–217. 163  World Commission on Environment and Development, Our Common Future, (1987), 43. 164  SADC-WP, Art. 3(1). 165  SADC-WP, Art. 3(4). 166  SADC-WP, Art. 3(7). 167  Sands et al., (2012) 187–188, 209–210.

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In addition to supplementing the international law principles with the approach of sustainability,168 and expressly including future generations,169 the SADC-WP also has objectives related to its role as a regional framework treaty. These include: promoting and facilitating the creation of agreements and management institutions for specific shared watercourses; promoting within SADC “coordinated and integrated environmentally sound development and management” as well as information sharing and access to scientific data and new technologies; and monitoring and harmonization of national legislation and policies on all aspects of shared watercourse management.170 For all of the above reasons, and others related to institutional support and priority, the SADC-WP is now “widely regarded as being one of the most significant examples of regional cooperation over water.”171 The principles of the ZAMCOM Agreement are based on the SADC-WP but in some respects also move beyond it. The eight principles listed are: (a) sustainable development, (b) sustainable utilization, (c) prevention of harm, (d) precaution, (e) inter-generational equity, (f) assessment of trans-frontier impacts, (g) co-operation, and (h) equitable and reasonable utilization. While the SADC-WP includes sustainable development and a version of the intergenerational equity principle over and above the UN Watercourses Convention principles, ZAMCOM also adds the principle of precaution. Article 14(2) places the principle of precaution in the context of Member State responsibilities in utilizing the watercourse. It requires them to “take all precautionary and preventive measures” so as “not to cause significant harm” to the watercourse, or to another state, or to human health and safety. This appears to incorporate in the ZAMCOM Agreement the “precautionary principle” that emerged from international environmental law, and is a now part of European Union law.172 The principle was set out in the Rio Declaration Principle 15, which stated that where there is a risk of irreversible environmental damage, a lack of scientific certainty about the possible damage should not be used as a reason to postpone cost-effective preventive measures. This principle is especially relevant to management of river basins as complex systems that, in the past, have been

168  SADC-WP Art. 2(a). 169  SADC-WP Art. 3(7)(a). 170  SADC-WP, Art. 2. 171  Turton, (2010), 15. 172  Sands et al., (2012) 187–188, 217–228. See also Denis Edwards, Disaster Risk Assessment: An Appraisal of European Union Environmental Law, chapter 7, in this volume.

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subject to major human engineering interventions such as large dams, as well as polluting industrial discharge, without knowledge of the consequences. Precaution and inter-generational equity are each separately capable of underpinning a policy approach for ZAMCOM that factors in climate change projections and the need to prevent irreversible environmental degradation in the basin that could affect sustainable development and use in the future. Together they are even stronger as the basis for prevention of slow-onset disasters and long-term damage. They have less to say about sudden-onset hazards, except to the extent that those arising from human activity can also cause irremediable environmental damage. However, the overall principles and objectives of the SADC-WP and the ZAMCOM Agreement clearly include within their scope the prevention and management of water-related disasters in river basins, given their impact on sustainable socio-economic development of riparian states, as well as on the hydrology and ecosystems of watercourses. 4.3 SADC and ZAMCOM Mandates for Water-Related DRM The foundations of the SADC-WP and ZAMCOM Agreement in international water and environmental law, and in the SADC regional focus on sustainable development and regional integration, mean that they are relatively well suited to underpin risk governance for water-related disasters where these intersect with governance for sustainable development. This is especially relevant to the issues of equitable and efficient use and sharing of water as a scarce resource, to mitigate the effects of water stress and scarcity in the basin, including harvesting, storage and regulation of water to mitigate drought, through present and future infrastructure projects. It is also very relevant to water quality, related as it is to the human right to clean drinking water and sanitation, as well as being the basis for pollution controls on riparian industries, and for ecological management. Both agreements on water level controls and new infrastructure projects for the above purposes could also be used to mitigate peak floods, or to restore floodwaters to key wetlands (including for groundwater replenishment, and fish breeding). The treaty provisions relevant to these areas in fact make up the main specific obligations of the treaty parties. They are the provisions on: (1) Equitable and reasonable utilization. Under the ZAMCOM Agreement, the rules for this are to be developed by the Technical Committee, according to the factors set out in the treaty (which essentially mirror the UN Watercourse Convention and SADC-WP but also add ‘optimal utilization’);173 173  Z AMCOM Arts. 13, 14(1) (optimal utilization); SADC-WP Art. 3(8) UNWC Arts. 5, 6.

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(2) Watercourse infrastructure cooperation, including notification and negotiations over planned measures affecting the watercourse, as well as regulation of water flow and maintenance of existing infrastructure, including the concepts of precaution and prevention in the ZAMCOM Agreement.174 Under the ZAMCOM Agreement, the Commission, Technical Committee, and Secretariat have key roles in studying and evaluating planned measures, and the Commission in resolution of disputes concerning them.175 In addition, the ZAMCOM Agreement also requires Member States to collaborate and consult with civil society and affected populations over planned measures and programmes;176 (3) Water quality, included under environmental protection (including setting joint water quality objectives, prohibited substances, control of alien species), as well as prevention and mitigation of harmful conditions, also subject to decisions of the ZAMCOM Council and Technical Committee.177 (4) Sharing data and information (essential for effective DRR and early warnings systems concerning water-related disasters), which for ZAMCOM is to be done through the Secretariat.178 Sudden-onset water-related emergencies are also part of both the SADC-WP and ZAMCOM treaties by virtue of their emergency management procedures intended to prevent or manage disasters such as floods, industrial accidents, and water-borne disease outbreaks.179 In the SADC-WP, emergencies are defined to include “any situation that causes or poses an imminent threat of causing serious harm” which results from either natural causes, such as “torrential rains, floods, landslides or earthquakes”, or “from human conduct.”180 These provisions require a state to notify other potentially affected states of any emergency situation arising in its territory, in order to cooperate in prevention, mitigation or elimination of any harmful effects. The definition is thus a broad one, and the notification obligation very clear. The treaty also covers urgent implementation of planned measures that have not been notified or ­undergone negotiation, where these are “of the utmost urgency to 174  Z AMCOM Art. 14, especially 14(2) (precaution and prevention) & 14(3) (pollution control), and Art. 16 (planned programmes etc.); SADC-WP Art. 4(1) (planned measures), 4(3) (management); 175  Z AMCOM Arts. 14(5)–(9), 16(5)–(7). 176  Z AMCOM Arts. 14(9), 16(9). 177  Z AMCOM Arts. 14(3), (4); SADC-WP Art. 4(2), 4(4). 178  Z AMCOM Art. 15; SADC-WP Art. 179  SADC-WP, Arts. 4(1)(i), 4(4), 4(5), 5. 180  SADC-WP, Arts. 4(4), 4(5), 5.

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protect public health, safety or other equally important interests,”181 as well as a duty on states to prevent and mitigate any transboundary harm they cause.182 The ZAMCOM Agreement has similar emergency provisions, including for response to natural and human made hazards, and mitigation of transboundary harm caused by a State Party.183 However, the ZAMCOM Agreement does not make any provision for states to implement planned measures on an emergency footing, as the whole area of planned measures is one that ZAMCOM itself is mandated to coordinate and, if necessary, arbitrate.184 As far as DRR for sudden-onset disasters is concerned in the ZAMCOM Agreement, the principles of prevention of harm and assessment of transboundary impacts are highly relevant for hazards created by human activity, and these could dovetail with the emergency provisions in Article 17 (covering natural and human-made hazards). Both the SADC-WP and ZAMCOM Agreement make provisions for notification by individual states to other individual states of emergency situations. The ZAMCOM Agreement includes the possibility of notifying the Secretariat (by definition the ZAMCOM Secretariat), but does not require this.185 On the face of it, this gives ZAMCOM very little capacity for emergency response and coordination in the river basin. Article 17(4) does, however, ask Member States to develop “individually or/or jointly” contingency plans for emergency response. Based on all the Article 17 emergency provisions in the treaty, there is no reason why ZAMCOM cannot develop contingency plans and standard operating procedures for states should they need to notify of an emergency, or cooperate in an emergency response operation. The potential is certainly there if they choose to use it. So far there is no public evidence of ZAMCOM making a priority of establishing DRR or emergency response contingency plans, but it is a very young institution. The SADC-WP requires notification, not only of other State Parties, but also the SADC Water Sector and “competent international organizations”.186 Likely this SADC-WP obligation to notify continues to apply to the parties to the ZAMCOM Agreement with respect to the Zambezi, since the latter treaty is made “on the basis of” the former and does not expressly contradict it. 181  SADC-WP, Arts. 4(1)(i). 182  SADC-WP, Art. 3(10). 183  Z AMCOM, Arts. 14(1)–(4) (transboundary harm mitigation), Art. 17 (emergency situations). 184  Z AMCOM, Art. 16. 185  Z AMCOM, Art. 17(3); SADC-WP Art. 4(1)(i) (notification to all State Parties if urgent implementation of planned measures). 186  SADC-WP, Art. 5.

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However, aside from receiving a notification, it is not then clear what role the SADC Water Sector should play in an emergency, as the SADC-WP does not confer a mandate on any of the treaty organs to coordinate emergency response. Implementation would therefore seem to fall to SADC’s existing arrangements for DRR and transboundary emergency management, which are not yet highly developed. SADC does not have a specific regional treaty or protocol concerning DRM, although it does have a Disaster Risk Reduction Strategic Plan 2006–2010, under which it established a Disaster Risk Reduction Unit in 2009, responsible for coordinating regional preparedness and response programs for transboundary hazards and disasters,187 and in 2011 it established a SADC Regional Platform for Disaster Risk Reduction.188 However, based on publicly available material, these institutional initiatives do not appear to have been particularly active. SADC’s Regional Indicative Strategic Development Plan has also reportedly improved co-operation on food security, leading to an effective drought disaster preparedness and management mechanism, but these programs focus on drought early warning (Remote Sensor Unit) and monitoring, natural resource management, agriculture, and assessment of vulnerability. Although these include slow-onset water-related disasters, there is no clear focus on emergency management in the event of a sudden-onset emergency in a transboundary river basin.189 Emergency management capacity could be enhanced either within the ZAMCOM institutions, for example by decision of the ZAMCOM Council of Ministers, or by SADC under one of the three main protocols concerned with DRR and disaster management (being the SADC-WP emergency procedures, or a combination of the defence and security cooperation protocol and the health emergency protocol), although a new and specific coordination mechanism for DRR and DRM would likely provide more effective coordination. At present it appears that DRR and DRM for sudden-onset water-related disasters is in the blind spot of both ZAMCOM and SADC, and the Zambezi Basin regime currently lacks both a mechanism 187  Geographic Information System (GIS) Portal, SADC, (April 2015), http://gisportal.sadc.int/ drru/?q=node/2. 188  Formulated in March 2001, adopted and approved by the SADC Summit in August 2003. See: SADC (May 2015), available at http://www.sadc.int/about-sadc/overview/ strategic-pl/regional-indicative-strategic-development-plan/. 189  Sarah Wakasa, Southern Africa launches Disaster Risk Reduction Platform Gaborone, 26 October 2011, UNISDR (26 October 2011), available at http://www.unisdr.org/archive/ 23244; SADC, Report of the SADC Disaster Risk Reduction Sub-Regional Platform: Mainstreaming & Implementing DRR into Development Frameworks in the SADC Region (2013).

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and mandate to implement procedures for prevention and emergency management of sudden-onset water-related hazards in the basin. The Zambezi Basin regime, as described above, has ZAMCOM as its primary level, but is also closely integrated with SADC, and especially the SADC-WP and Water Sector, which provide tools, resources and regional policy frameworks for river basin institutions such as ZAMCOM. For the Zambezi Basin regime it is early days, but ZAMCOM and the SADC-WP institutions have sufficiently broad mandates to coordinate members states concerning both slow-onset and rapid-onset water-related disasters, including droughts, water scarcity, water pollution, and broadly defined emergency situations as set out in both treaties. However, the specific mandates of the implementing treaty organs do not focus on either DRR or emergency management of suddenonset disasters, so responsibility in this area remains diffuse; the overall mandates exist, but institutional follow-through does not. 5 Conclusions This chapter has moved from international law and policy frameworks for the management of transboundary river basins and water resources, to the regional level in the SADC region, and finally to the basin level with the ZAMCOM Agreement. It has done so with a view to assessing how well treaty frameworks for water management can encompass disaster risk reduction and emergency response for water-related disasters in shared river basins. This analysis has identified three important characteristics of these regimes. The first observation is that there is increased integration of DRR and sustainable development concerns on water management, which is a positive trend. This is evident in the international soft law instruments such as the Sendai Framework, the UN’s new Sustainable Development Goals, which connect DRR, CCA and development in new ways, as well as recognizing the role of water and transboundary river management in all of these, along with recognition of the human right to water and sanitation, and the wide adoption of the concept of IWRM. At the international level these are an important context for the UN Watercourses Convention, although the treaty itself has a narrower focus. Then at the regional level, the water regime established by the SADC Treaty and the SADC-WP, is able to deal with a broader subject matter than the international UN Watercourse Convention, in that it integrates the sustainable development concerns and international water law management principles and mechanisms into one regime. The same integration occurs in the ZAMCOM Agreement as part of the SADC framework.

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The second observation is that, although the regional and river basin treaties are clearly influenced by the UN Watercourses Convention and other developments in international law and policy, the closer the treaty is to an actual river basin, by agreement with specific riparian states, the more it can be tailored to local needs. In the case of both the SADC-WP and the ZAMCOM Agreement, this has seen progressive additions to the international framework, such as adopting the principles of sustainable development, inter-generational equity and precaution. The ZAMCOM Agreement also establishes specific institutions and mechanisms with clear roles in ensuring sustainable and equitable use of the Zambezi watercourse, also within a development framework. These institutions have sufficient mandates to coordinate the riparian states in managing slow-onset disasters that dovetail with development planning in southern Africa, in particular the human and economic risk from droughts, water stress and scarcity, and river water pollution, as well as future projections of climate change. However, as yet there has been no evidence of harmonization of the bilateral treaty establishing the ZRA, even though its mandate to prioritize hydropower in the management of the Kariba dam has a great impact on management of water flows in the middle and lower Zambezi. The third observation is that, while the international, regional and basin treaties considered all have very similar emergency procedures, and all include both natural and human-made disasters, emergency response and coordination is not institutionalized in the mandates of the treaty organs. In principle, the treaties require cooperation on sudden-onset disasters, but they do not create mechanisms for such cooperation in the way they do for the slowonset disasters, so it is left to individual states to notify and act as they see fit under very general treaty obligations. While the lack of such a mechanism is understandable in the international treaty, it is much less so for the regional and basin treaties. There is clearly a role for both SADC and ZAMCOM to develop the necessary policies, strategies and standard operating procedures to ensure that emergency notification and response coordination for suddenonset disasters in shared river basins can be implemented. Likewise, such procedures could incorporate DRR for such hazards, including harmonization of decision-making processes for dam spillages by hydropower authorities such as the ZRA, to ensure both early warning and to maximize mitigation. Both the SADC-WP and the ZAMCOM Agreement have sufficient mandates under their relevant treaties, and such an initiative would greatly enhance the capacity of river basin organizations such as ZAMCOM to manage sudden-onset water-related disasters.

CHAPTER 10

Valuing Foreign Disasters in International Environmental Law Arden Rowell and Lesley Wexler When policymakers determine how many resources to allocate towards disaster prevention and response, they are implicitly or explicitly valuing disaster risk. Valuation involves the assessment of the worth, merit, or importance of a good (or of the risk of losing that good). When valuation of disaster risk leads policymakers to spend scarce resources on disaster prevention or response, those resources are no longer available to the other worthy causes that might also press upon policymakers: money spent on disasters cannot be spent elsewhere on managing risks of crime, malnutrition, illiteracy, or national security. Furthermore, money spent on one disaster is unavailable to other disasters and other disaster strategies, and money spent on prospectively reducing a disaster risk is then unavailable to retrospective disaster response. The inevitability of these resource tradeoffs poses a constant backdrop to disaster policy decisions, and the complexity of the tradeoffs is increased where policymakers must consider not only domestic disasters, but also disasters occurring outside national borders. When policymakers consider taking action regarding foreign disasters, they must still consider their own domestic resources, but they must also consider the (lack of) resources of the affected state, as well as account for and coordinate with other actors who may also provide resources. Furthermore, any expenditure of resources on foreign disasters will typically lack the same degree of governing control that would generally be present for domestic disasters. Finally—and perhaps most problematically—for foreign disasters, states must decide how to weigh domestic resource expenditures against benefits that may largely accrue to those outside of their jurisdictions. In this chapter, we argue that explicit valuation of foreign disasters can help policymakers think through the relative value of foreign and international disaster policies as against other demands on the public’s resources. We begin by describing the valuation decisions that policymakers inevitably face when developing international disaster policy, and argue that foreign disaster contexts present distinctive political, philosophical, psychosocial, and practical features that should be understood to distinguish foreign disaster valuation

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from domestic disaster valuation. In light of the complexity of foreign disaster valuation, we then argue that explicit—rather than implicit—valuation processes offer useful features to policymakers, by helping to systemize the complexity of competing risks and obligations, and by acting as a tonic to the intuitive and heuristic psychological processes that may underlie implicit valuations of foreign harms. Finally, we identify specific opportunities in international environmental law for incorporating explicit valuation into policymaking. These opportunities include verifying the satisfaction of threshold conditions to trigger legal requirements; choosing among multiple feasible compliance strategies; adding content to common but differentiated responsibilities; operationalizing the precautionary principle; and justifying the creation of legal strategies for special disaster risks such as those that are truly uncertain or those with extremely damaging potential outcomes. 1

The Valuation of Foreign Disasters

Whenever policymakers allocate resources, they are (implicitly or explicitly) expressing the relative worth, merit, or importance of a policy in terms of the allocated resources. In this sense, policymakers “value” disaster risk ­prospectively when they choose whether to allocate resources to prospectively reduce future risk, and they “value” the harm of a disaster either retrospectively or contemporaneously when they choose whether to allocate resources to respond to an extant disaster. One common metric for such valuations is money: money to be spent on prophylactic investment in infrastructure; on the hiring of additional emergency response professionals; on the provision of basic life-saving aid post-disaster; or on long-term remediation, restoration, or relocation. Many factors play into any valuation decision, but as a descriptive matter, one factor that correlates significantly with the quantity of resources allocated towards disaster is the location of the disaster. Indeed, major donor countries routinely adopt bifurcated policies for domestic and foreign natural disasters. In reducing disaster risk, countries typically invest in their own physical and public health infrastructure, as well as in national security, without investing concomitant resources in foreign infrastructures and militaries. And in responding to extant disasters, countries generally invest heavily in rebuilding their own cities while simultaneously ignoring or sending only a pittance to aid when there are similar disasters abroad. The differences in domestic and foreign disaster policy may be most stark when the same natural hazard affects both domestic and foreign populations. Consider, for example,

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the U.S. response to “Superstorm Sandy,” a hurricane that caused billions of ­dollars of damage in the Caribbean and along the U.S. eastern seaboard during 2013. In addition to widespread injury and property damage, the storm killed 233 people, including 157 in the United States and 54 in Haiti.1 After the hurricane, the U.S. appropriated $47.99 billion for domestic response efforts in a special Relief Appropriations Act.2 By contrast, the U.S. allocated $17 million in aid to Haiti: 1 / 2,822 (or 00.04%) of what the U.S. allocated to U.S. recovery from the same storm.3 Whether or not U.S. foreign aid was appropriate and/or sufficient in this instance, the example helps to illustrate the significant gap that exists between domestic disaster policies and foreign disaster policies. States generally spend more—much more—on disaster prevention, protection, and reconstruction for their own populations than they do for those elsewhere. But why do they do so? And conversely, why are they willing to spend on foreign disasters at all? Because both foreign and domestic disaster policies implicate resource allocation, they are inherently valuation judgments about the relative worth, merit, or importance of allocating resources towards disaster prevention and/or response. Yet there are also important differences between domestic and foreign disaster contexts. In both instances, policymakers must engage with the challenging underlying task of evaluating the probabilities and magnitudes of disaster events, and of determining the appropriate resource-level response to extant disasters. Furthermore, as we have argued in past work, the domestic analysis of foreign impacts adds extra and significant layers of complexity to policymaking.4 In particular, valuing foreign disasters implicates distinctive philosophical, psychosocial, political, and practical considerations that do not apply—or which apply with significantly less force—in purely domestic contexts.

1  See Michael Diakakis et al., Hurricane Sandy Mortality in the Caribbean and Continental North America, 24 Disaster Prevention & Mgmt. 132 (2015). 2  Disaster Relief Appropriations Act (2013). 3  See USAID, Haiti—Hurricane Sandy, Fact Sheet #1, Fiscal Year (FY) 2013, February 15, 2013 (reporting $16,964,891 total US aid assistance to Haiti for Hurricane Sandy). Of this, $1.7 million was pre-storm aid intended to help with disaster preparation, and $15.2 million was postdisaster emergency and rehabilitation efforts. Because this figure includes pre-disaster aid, if anything the comparison to the $48 billion allocated towards U.S. relief understates the difference in domestic and foreign policy. 4  See Arden Rowell & Lesley Wexler, Valuing Foreign Lives, 48 Ga. L. Rev. 327–405 (2014); see also Foreign Life Valuation: A Symposium, 2015 U. Ill. L. Rev. Slip Opinions 1–47 (2015).

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Because foreign disaster valuation is such a complex task, it is all too easy for policymakers to overlook important factors and/or to inadvertently overweight less-important factors. Given the challenge of this task, we will argue that explicit valuation processes—such as are encouraged and even required by cost-benefit analysis—form a useful tool in the toolbelt of foreign disaster policymakers. In valuing foreign disasters, explicit valuation processes should account systematically for the philosophical, psychosocial, political, and practical considerations that distinguish foreign disasters from domestic. Below, we identify critical factors and strategies for policymakers to consider in their valuation exercises. 1.1 Philosophical Features of Foreign Disaster Valuation Foreign valuation poses a serious philosophical challenge by invoking the fundamental question of how (and whether) obligations governing resources vary across state boundaries. Foreign valuation can help quantify and monetize risks, but states must still determine their obligations to address that risk. While states need not embrace and implement a single philosophy governing their obligations, basic understandings of a state’s obligations matter, particularly in democratic countries. Some cosmopolitan philosophers, like Peter Singer, believe that individual obligations do not vary along national borders.5 Singer can even be taken to suggest that state obligations do not vary along national borders and that states should provide equal consideration to all interests.6 But many philosophers contend that state obligations are highly sensitive to borders and allow that governments may often focus more on the needs of its own than on the needs of others.7 And more parochial philosophers suggest that the proper source of concern for a government and the appropriate recipients of its resources are primarily its own constituents.8 Philosophical debates about foreign obligations may strike many law and policymakers as functionally intractable. Here, we suggest two ways that policymakers might be able to bypass some of the general philosophical contentiousness about state obligations to foreigners: foreign states may have specific obligations where their actions are the cause of a disaster, and/or where the disaster creates a condition of emergency. 5  Peter Singer, Famine, Affluence, and Morality, 1 Phil. & Pub. Affs. 231, 232 (1972). 6  Peter Singer & Renata Singer, The Ethics of Refugee Policy 285, 289 in Population and Political Theory (James Fishkin & Robert Goodin eds. 2010). 7  John Rawls, A Theory of Justice 242–46 (1971). 8  Michael Walzer, Spheres 0f Justice 9–12 (1983).

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Causation presents an obvious contender as a justification for a state’s disbursement of its own resources to other states.9 For instance, if a state causes a disaster abroad, it may have an obligation to address the harm it has caused: causing harm might itself be taken to create an obligation to foreign persons even if no obligation existed in the absence of the harm. If a state tested a nuclear weapon and the radiation killed and injured people outside of its borders, most philosophers would easily agree that state had a duty to the foreign lives it affected and such agreement has been reflected in existing international law. In this sense, policymakers might reasonably take their state’s obligations to foreign states for granted where their state has caused a disaster to occur on foreign soil. That said, although many causal stories will be sufficiently clear under existing governing principles, in marginal cases policy-makers must still decide what counts as a sufficient cause to ground a domestic obligation in foreign disasters. Is overuse of a shared water supply triggering a drought sufficient to create an obligation to those affected by the drought—even if those persons are on the other side of political borders? Is a measurable contribution to global climate change sufficient—even if there are other (or even larger) contributors? Is state membership in an institution financing a megadam-induced flood sufficient—either with or without specific state involvement in the particular project? These are challenging questions that may be resolvable only through nuanced reflection on the ethical and moral obligations that states owe to foreign countries and foreigners. Another potentially important condition in many foreign disasters easing the obligation inquiry is the existence of an emergency. Emergency situations may raise special moral obligations for individuals and perhaps for states as well.10 Overlapping justifications exist for an emergency obligation. One might reference the difficulty or impossibility of a state engaging in effective self-help or view it as a de facto insurance policy from which any state is eligible to draw. One might also think that states would likely agree to such an obligation under a veil of ignorance. Again, in marginal cases, policymakers may still have to 9  Although causation may be an intuitive source of obligations, determining the extent, nature, and quality of those obligations is complex. For a nuanced treatment of the philosophical basis of causation for legal and moral responsibility, see Michael Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (2009). 10  Colleen Murphy, Differentiating Moral Duties: A Response to Valuing Foreign Lives, 2015 U. Ill. Slip Opinions 5, 8 (2015) (discussing those cosmopolitan philosophers who believe state redistribution to other states should be predicated on need).

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address thorny issues like what constitutes an emergency, how to assess the role of risk to itself when thinking about the obligation, and what quantity of resources to allocate when the emergency condition is met. Even so, many disasters might straightforwardly invoke the emergency condition. These conditions suggest that foreign disasters might be easier cases for foreign valuation than other outward looking state behavior,11 at least insofar as they create less tension between cosmopolitan and parochial approaches to state obligation by identifying causation and/or emergency as possible sources of obligation. In addition, explicit valuation—and the use of explicit valuations in decisionmaking frameworks like cost-benefit analysis—might help determine whether certain conditions for state obligations are met. For instance, some philosophers attach capacity or feasibility constraints to the creation of a state obligation.12 In such settings, explicit valuation and costbenefit analysis may provide needed information about the nature of a possible foreign intervention. Finally, even in the absence of a specific obligation driven by the nature of the disaster itself, states might justify an intervention based on the benefits provided to its own citizens.13 There are at least two ways in which these might be accrued during foreign disasters. First, citizens of one state may have a preference that aid be provided to those abroad rather than keeping all resources for domestic disasters. In such instances, states are recognizing and awarding allocation not purely based on foreign need, but on domestic preferences to alleviate that foreign need.14 Second, in some instances, foreign disasters have the potential for significant spillover effects. The failure to assist with prevention, response, or reconstruction could result in political instability, environmental degradation, and the physical flight of those affected. As borders are porous, allowing such consequences could yield long-term costs for potential donor states. 11  For discussions of other contexts, including environmental and military risks, see Rowell and Wexler, supra note 5. 12  See e.g. Henning Hahn, Justifying Feasibility Constraints on Human Rights, 15 Ethical Theory & Moral Practice 143 (2012). 13  Rowell & Wexler, supra note 5. 14  While existing humanitarian law principles dictate that that emergency assistance shall “. . . be provided in accordance with the principles of humanity, neutrality, impartiality, and independence,” it does not mandate that any particular aid be given. UN General Assembly, Strengthening of the Coordination of Humanitarian Assistance of the United Nations (Dec. 19, 1991) available at http://www.un.org/documents/ga/res/46/a46r182.htm.

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1.2 Psychosocial Features of Foreign Disaster Valuation Foreign disaster valuation also presents amplified psychosocial challenges when compared to domestic disaster valuations. These challenges include cognitive phenomena like psychic numbing, out-group bias, and othering, which can dampen emotional connections and responses to the needs of people who are geographically distant.15 For instance, psychic numbing can occur when people withdraw emotionally from overwhelmingly horrific situations, such as widespread atrocities and genocides.16 Similarly, out-group bias or othering can allow individuals to treat the risks of out-groups with much less sensitivity than the risks of those they perceive as insiders.17 While such concerns can also play out in a domestic setting, geographic distance itself along with other potential differences such as race and ethnicity can make these biases more likely and more intense. That said, states are frequently responsive to foreign disasters, even as they struggle to respond to other large-scale killers such as atrocities and genocides. Moreover, while responses often fail to approach the actual need,18 as the numbers of people affected by disasters significantly increases, so too does the likelihood of receiving foreign disaster assistance.19 A number of reasons may explain why this is so. For one, extreme foreign disasters are highly salient. They often receive significant press attention and are highly dreaded. For another, in most cases, the victims are perceived as blameless even if the affected states refused to allocate sufficient resources to prevention. In addition, disaster narratives can focus on specific, highly sympathetic individuals, which can help people overcome the distancing effect of othering and outgroup bias. Even so, state disaster policies are not perfectly efficient. Relief assistance is not always channeled to those most in need and prevention efforts are often less robust than what an efficient resource distributor would seek. For instance, some major disaster donors seem to prefer geographically closer states or former colonies for assistance providing some support that in-group bias may be at work.20 Explicit foreign valuation can inform foreign disaster policy by 15  Rowell & Wexler, supra note 5. 16  Paul Slovic, If I Look at the Mass I Will Never Act: Psychic Numbing and Genocide, 2 Judgment & Decision Making, 79, 90 (2007). 17  X.T. Wang, et al., Social Cues and Verbal Framing, 14 J. Behav. Decision Making 12 (2001). 18  See Cinnamon P. Carlarne, Disastrous Adaptation, chapter 6, in this volume. 19   Guenther Fink & Silvia Redaelli, S. Determinants of International Emergency AidHumanitarian Need Only?, 39 World Dev. 741 (2009). 20  Id.

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identifying these sorts of misfits—or at least discontinuities—in allocation.21 Of course, states may have all sorts of reasons that resource allocation does not perfectly match abstract needs and priorities, but having the numbers can allow these decisions to be interrogated and justified. 1.3 Political Features of Foreign Disaster Valuation Unlike domestic disaster valuation, foreign disaster valuation must often give way to sovereignty concerns of affected states.22 Even when states are able to overcome internal barriers to intervention, they also face external political barriers in the form of sovereignty. Under international law, each state has the right to govern without interference so long as it acts in compliance with international law. Spain cannot simply impose its regulatory preferences on France even if Spain’s regulations are cost-benefit justified and would save French lives. Nor can Spain take over the implementation of France’s government services even if doing so would save more net lives than allowing the French to run it. That said, in conditions of emergency—such as can arise in disasters—sovereignty concerns may frequently be mitigated. When circumstances are dire enough, governments may consent and even seek the active involvement of other states. Typically, states are pleased to receive assistance once a disaster risk has materialized,23 and often long before that as well. Even typical donor states like Japan and the United States have accepted significant foreign assistance with recent disasters.24 Refusals occur only rarely, and then primarily when the affected states already have (or perceive themselves to have) heightened sovereignty concerns, such as when Burma refused and then commandeered assistance after Cyclone Nargis; when North Korea resisted famine 21  Arden Rowell, Foreign Impacts and Climate Change, 39 Harv. Env. L. Rev. 371–421 (2015). While other ways to learn about such discontinuities may already exist, we think there is value in having a fine grained comparison of figures and in having the relevant domestic actors perform this analysis and be confronted directly with such figures. 22  Rowell & Wexler, supra note 5. 23  Of course, exceptions exist. For instance, Italy rejected nearly all international aid after the L’Aquila earthquake citing their status as a proud people. EU Says Italy Rejected Aid, Agence France Presse (Apr. 8, 2009). 24  Chris Mooney, Why the U.S. Just Summoned Firefighters from Australia and New Zealand, Wash. Post (Aug. 21, 2015); Liz Ford & Claire Provost, Japan Earthquake: Aid Flows in from Across the World, The Guardian (Mar. 14, 2011). That said, it may be worth noting the United States sometimes limits its acceptance of foreign aid because of capacity issues. John Solomon and Spencer S. Hsu, Most Katrina Aid from Overseas Went Unclaimed, Wash. Post (Apr. 29, 2007).

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assistance from the United States; or when the Soviet Union rebuffed offers of help with Chernobyl. All of these states were already either politically isolated or committed to secrecy regarding the disaster or both. Yet the very rarity of these examples helps illustrate the general willingness of states to accept disaster aid when there are no pre-heightened sovereignty concerns. This is not to suggest that disasters eliminate states’ sovereignty concerns, but rather that the disasters themselves shift the ways in which those sovereignty concerns materialize. For example, aid may come in the form of customs restrictions on relief supplies or delays in processing visas for relief workers. Some of these political barriers are being addressed, for instance, by the International Federation of the Red Cross’ Disaster Law Program and its International Disaster Relief Guidelines25 along with the International Law Commission’s attempt to develop general rules regarding international disaster relief.26 And even in disasters, states do not generally allow other states to impose their risk preferences or defer their governance to other states. Rather, they accept money, expertise, and other relief in the short term. Prevention and restoration, on the other hand, may impose more significant sovereignty concerns as the immediate emergency has either not yet come to fruition or it has passed. The role for foreign interventions in such instances is more limited and requires more sensitivity to sovereignty concerns. Nevertheless, disasters present a distinctive set of policy moments where the sovereignty concerns inherent in foreign involvement shift in meaning, creating a different set of opportunities and challenges than more general contexts of foreign valuation. 1.4 Practical Features of Foreign Disaster Valuation In addition to some of these more abstract concerns, international interventions in other countries will often pose practical challenges that do not arise in purely domestic disaster contexts. The mere existence of a problem requiring resources does not make that problem well-suited for international action. When affected states have sufficient resources and expertise to address a particular risk, international intervention is not needed and often not welcomed. 25  For background and the guidelines themselves, see International Federation for the Red Cross, Introduction to the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2001) available at www.ifrc .org/dl. 26  See Emika Tokunaga, Evolution of International Disaster Response Law: Toward Codification and Progressive Development of the Law, 46, 46–60 in The International Law of Disaster Relief (eds. David D. Caron et al., 2014).

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For instance, even if Spain operates its police force more cheaply and e­ fficiently than France, or if France has better implementation of environmental regulation than Spain, neither is likely to allow another state to take over or even to fund these vital practices. In the specific disaster setting, certain types of practicality concerns are likely to come to the fore. First, is the home state capable of substantially addressing the particular disaster risk? Foreign intervention may be most appropriate when the answer is no. But there are other considerations as well. As among all the other states and other potential actors, who has the requisite capacity? We suggested earlier that states may assist those nearby because of shared characteristics, but it is also worth noting that shared characteristics, like language, may actually make assistance cheaper and proximity may make delivery of certain resources cheaper. In sum, although valuation of foreign disasters may in many instances be less problematic than valuation of other foreign impacts, foreign disaster valuation still presents a set of puzzles beyond those faced in domestic disaster valuation. In the next section, we argue that these features make it particularly important that policymakers adopt reflective valuation policies regarding foreign disasters. 2

Incorporating Explicit Valuation of Foreign Disasters into International Environmental Law

The first portion of this chapter identified some of the distinctive features, challenges, and opportunities of foreign disaster valuation. In this section, we argue that explicit valuation practices can help inform decisions about when and where to intervene internationally. We offer some examples from existing international environmental law as well as some suggestions for crafting potential future obligations. Some existing international environmental law doctrine already speaks to foreign disaster risk and response; we think explicit valuation practices can also assist in its implementation. Below, we identify a few areas for concrete application, including: revealing controversial valuation assumptions embedded in complex policies; crafting and applying treaty triggering thresholds; selection for preferred modes of international environmental law compliance; illuminating the meaning of common but differentiated responsibilities; and exposing the need for supplemental tools for underappreciated risks like global catastrophic risks. We think these are potentially helpful applications and are optimistic others may exist as well.

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2.1 The Value of Valuation Explicit valuation of foreign disasters offers a number of potential benefits: it can help reveal analytical missteps and biases in setting proactive or responsive disaster policies; it can provide fodder for continued analysis and debate where valuations are (or should be) controversial; and it can help decisionmakers themselves see where and when international legal activity, including funding directives, may be most valuable and most justified. There are also serious difficulties associated with assessing the value of foreign disaster risk, and valuation practices in this context (whether explicit or implicit) should rightfully be considered controversial. That said, as we noted at the beginning of this chapter, some form of foreign disaster valuation is implicit in any country’s decision to allocate—or not to allocate—resources towards foreign disaster risk or response. In this sense, some kind of domestic valuation of foreign disasters is inevitable. Yet some forms of valuation may be more helpful—and less dangerous—than others. In particular, we believe that explicit valuation has significant benefits over more implicit, intuitive valuations. Recent psychological and behavioral research suggests that people—including policymakers—generally utilize two different types of psychological processes: the fast, intuitive “System I” that allows for quick decision-making, and the slower and reflective “System II,” which allows for deliberative decisionmaking.27 Both systems offer predictable benefits and drawbacks. In the context of valuing foreign disasters, however, we believe that deliberative System II reflections are superior to quick System I intuitions, and that policies that focus on explicit rather than implicit valuation will tend to promote System II reflection. One of the primary drawbacks of System I thinking is that it is particularly susceptible to so-called “heuristics,” quick rules of thumb that may work well generally, but which can misfire when they are overapplied.28 Because of the distinctive philosophical, psychosocial, and political features of foreign disaster policy, this aspect of intuitive System I thinking is particularly worrisome in the context of implicit foreign disaster valuation. Philosophically, the complex moral and ethical obligations imposed by foreign disaster contexts are a poor fit for heuristic thinking.29 Psychologically and socially, policymakers may be particularly prone to being impacted by othering, compassion fatigue 27  For a highly readable summary of this research and its implications, see Daniel Kahneman, Thinking: Fast And Slow (2011). 28  Id. 29  For a discussion of the difficulties that may be associated with so-called “moral heuristics,” see Cass Sunstein, Moral Heuristics, 28 Behav. Brain Sci. 531 (2005).

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and out-group bias when they value foreign disasters implicitly. And like moral and ethical obligations, the complex political obligations implicated by foreign disaster policy are particularly ill-suited to back-of-the-envelope-style valuations. Fortunately, System II deliberation can be helpful both in combating bias, and in teasing apart complex situations with multiple important factors.30 Decision-making systems such as explicit valuation that invoke System II deliberation thus offer significant benefits to foreign disaster policymakers, who must balance multiple complicated issues while managing the biases that those issues implicate. The process of explicit valuation also allows for System II comparisons of the strengths and drawbacks of different proposed policies. The resulting costbenefit analysis presents policymakers with even more of an opportunity to engage in reflective, deliberative consideration of policy impacts.31 Although it is by no means uncontroversial, cost-benefit analysis is well-known in legal and policy circles for the central role it plays in domestic U.S. policymaking.32 The type of cost-benefit analysis that is so central to U.S. regulation is a particularly formalized and quantified form, where all impacts of a proposed policy are (at least intended to be) identified, counted up, and expressed in monetary form.33 Valuations that are not only explicit, but which are also quantified and even monetized, offer several benefits in the context of foreign disaster policy. Chief among these is that monetization facilitates apples-to-apples comparison of the costs and benefits of a policy.34 Without a single metric in which to compare diverse impacts, the relative weighting of those impacts is otherwise implicit, less transparent and (possibly) less reasoned. In addition, even when it fails to capture all of the value attached to a particular good (such as 30  See Kahneman, supra note 30. 31  For arguments that cost-benefit analysis promotes deliberative decision procedures, see Cass Sunstein, Risk and Reason, Safety, Law, and the Environment (2004); Richard Revesz & Michael Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health (2006). 32  The use of cost-benefit analysis remains contentious for a number of reasons, including concerns about commodification, incommensurability, and “crowding out” of nonmonetary concerns. Such debates are complex and a full treatment exceeds the scope of this chapter. 33  Arden Rowell, Cost-Benefit Analysis, in 6 Measurements, Indicators and Research Methods for Sustainability: Encyclopedia of Sustainability 68–70 (2011). 34  Cass Sunstein, Risk and Reason: Safety, Law, and the Environment (2004); Arden Rowell, The Cost of Time: Haphazard Discounting and the Undervaluation of Regulatory Benefits, 85 Notre Dame L. Rev. 1505–42 (2010).

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the saving of a cultural treasure, or the protection of a child’s life), monetized valuation can provide an important benefit to policymakers by creating a “floor” of monetary spending that is presumptively justified.35 Finally, quantified valuation provides an additional benefit in disaster contexts because it presents a straightforward way to account for probabilistic outcomes, such as those faced in contexts of disaster risk: if a disaster is expected to cause $10 million in damages, and there is a 25 percent chance of it occurring, the expected monetary impact of the disaster—its “value” in monetary terms—is simply the expected value of the damage, one quarter of $10 million, or $2.5 million. This kind of adjustment for probabilistic outcomes is something that is easy for analysts and policymakers to take for granted, but it is also something that is sensible only because of the quantified (and in this case monetized) expression of the risk. Although quantified and monetized valuations such as those used in costbenefit analysis provide a number of useful features, they also have several drawbacks that interact with disaster policy in important ways. First, although quantified valuation is particularly helpful where there are probabilistic outcomes, it falls down when outcomes are uncertain, and particularly where probability distributions are unknown.36 Particularly for the many types of disasters which have probabilities impacted by climate change, this poses a significant challenge to quantified valuations. Second, some commentators worry that “fat-tailed” damage distributions—which include the type of unlikely but extremely damaging events such as might occur with mega-disasters or global catastrophic risks—may be poorly represented in traditional quantified and monetized valuations.37 These concerns are mitigated where there is good data about the distribution of likely outcomes, as the monetized value of the risk can then be adjusted for expected value, but they pose particular challenges for policymakers when fat tails are combined with uncertainty. Despite its continued controversy, quantified and monetized valuations are already affecting how at least some countries—and specifically the United States—affect the disaster risks experienced in “foreign” countries. Climate

35  Arden Rowell, Partial Valuation in Cost-Benefit Analysis, 64 Admin. L. Rev. 723–42 (2012). 36  Dan Farber, Uncertainty, 99 Geo. L.J. 901 (2011); Arden Rowell, Cost-Benefit Analysis, in 6 Measurements, Indicators and Research Methods for Sustainability: Encyclopedia of Sustainability 68–70 (2011). 37  See Richard Posner, Catastrophe: Risk and Response (2005); Cass Sunstein, Worst-Case Scenarios (2009); Nick Bostrom & Milan Cirkovic, Global Catastrophic Risks (2011).

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change is the obvious and important example here.38 Interestingly, the United States now routinely bases its domestic regulatory decisions upon the expected global impacts of carbon dioxide emissions—impacts whose value depends largely upon the monetized impacts of climate-related disaster risk.39 These allocation decisions should be controversial, even if they are ultimately defensible. Yet without the systematic and organized approach to valuation presented by U.S. regulatory cost-benefit analysis, the decision would likely be entirely obscured both to the U.S. public and to the rest of the world, as it forms a tiny portion of an extremely complex climate policy.40 In this sense, applying quantified and monetized valuations can reveal areas of controversy that might otherwise be obscured by the complexity of many disaster policies. Although these are important limitations in the use of quantified and monetized valuations in disaster contexts, they are also ways in which attempts to quantify and monetize help reveal the actual challenges underlying disaster policy decisions. Explicit valuation alone may not be sufficient to guide policymakers who face uncertain, fat-tailed disaster risks that are being experienced by people outside the policymaker’s domestic jurisdiction. But using explicit valuations to inform policymaking can help reveal—both to policymakers themselves and to the public—just how it is that disaster decisions are informed by values. Opportunities for Incorporating Explicit Valuation into International Environmental Law We have identified some ways in which foreign disaster valuation already plays important roles in setting states’ foreign disaster policy. In the remainder of this section, we want to explore other ways that explicit valuation might be used within international environmental law to inform foreign disaster policy. First, explicit valuation can speak to triggering or threshold conditions for the application of existing international environmental law in disaster contexts. Tools for governing disaster risks rarely include per se bans or call for states to pose zero risk; rather, international obligations often require a triggering event or a certain threshold of harm for violation. Explicit valuation can help states determine whether such a threshold is likely to be met ex post and 2.2

38  For a much more detailed discussion of the intricacies of valuing foreign impacts in climate change policies, and an overview of current U.S. practice, see Arden Rowell, Foreign Impacts and Climate Change, 39 Harv. Env. L. Rev. 371–421 (2015). 39  See id. 40  See id.

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whether it has been satisfied ex ante. Quantified cost-benefit analysis that at least provides a probabilistic risk threshold would be one way to operationalize these conditions, and would provide policymakers with still further guidance. Such thresholds could have a range of specificity: for example, to intervene where political collapse looks “more likely than not,” or to provide prophylactic aid when a type-3 hurricane reaches a 30 percent likelihood of landfall where more than 10,000 people are likely to be affected. A monetized requirement could operate in the same way: while there might be significant remaining sovereignty objections if obligations were founded generally where “the benefits of intervention exceed the costs,” such objections might be mitigated by more specific requirements, for example where “the costs of the disaster are expected to exceed $1 billion,” or to “exceed 10% of the affected country’s GDP.” Such thresholds already exist in some international environmental contexts. Take, for example, the customary international law obligation recognizing the state duty to prevent transboundary pollution. Albeit imperfectly observed, this rule is often cited, and is taught in all international environmental law classrooms. First appearing in the Trail Smelter case, this duty entails that “[n] o state has the right to use or permit the use of its territory in such a manner as to cause injury . . . in or to the territory of another or of the . . . persons therein.”41 The duty appears again in Principle 21 of the Stockholm Declaration which acknowledges that “States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”42 In practice, states have understood this obligation to be triggered when they pose a risk of significant injury, rather than simply in the creation of any risk at all. While the duty originally arose in the context of transboundary pollution from industrial practices, it certainly encompasses pollution based disasters and it is fairly read to include other types of domestically induced disasters that cause damage to foreign states. Second, by allowing for apples to apples comparisons, explicit valuation practices could assist states in creating and applying a consistent trigger threshold of “significant” damage. Take, for example, the former Soviet Union’s diversion of water from the Aral Sea for irrigation projects leading to

41  Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1938, 1965 (Mar. 11, 1941). 42  Stockholm Declaration on the Human Environment, princ. 21, Report of the United Nations Conference on the Human Environment, Stockholm, June 5–16, 1972, U.N. Doc. A/CONF.48/14/Rev.1, U.N. Sales No. E.73. II.A.14, pt. 1, ch. 1 (1973), reprinted in 11 I.L.M. 1416 (1972).

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d­ evastating effects in five different states in the Aral Sea basin.43 On the front end, explicit valuation could be used to assess lawfulness under Trail Smelter before the leadership became irretrievably committed to a course of action. On the back end, if states act despite the risk of significant damage, the practice of foreign valuation could help also them determine appropriate compensation. For instance, if Russia had acted the same way after the dissolution of the Soviet Union, explicit valuation could have helped set appropriate remedies for Uzbekistan, Kazakhastan, Kyrgyzstan, Tajikistan, and Turkmenistan. Third, explicit valuation may help states choose among multiple compliant options for addressing an existing treaty or customary law obligation regarding disaster risk. Some international environmental law treaties allow states great discretion in meeting goals. For instance, climate treaties that set reduction targets allow states flexibility in making those reductions.44 Explicit valuation and cost-benefit analysis could help states assess the relative advantages of different strategies such as taxes and permits. It can also promote compliance with soft law disaster instruments like the Hyogo framework for action, by helping reveal where states have acted (or not), and how those states are fulfilling their aspirations (or not).45 As states consider how to engage with their priorities of disaster risk reduction, they can utilize foreign valuation to help set priorities and cost-benefit analysis to choose among competing options. For instance, valuation and cost-benefit analysis could help fire prone countries like Indonesia decide on appropriate efforts to reduce risks to both its own population and its neighbors. Indonesia might deploy this tool under a treaty, such as the ASEAN Agreement on Transboundary Haze Pollution, customary law such as Trail Smelter, or a soft law agreement such as the ASEAN Cooperation Plan on Transboundary Pollution. Fourth, foreign valuation practices might help illuminate what “common but differentiated responsibilities”46 means in various disaster contexts. This principle of International Environmental Law acknowledges the larger 43  Philip Micklin, Desiccation of the Aral Sea, A Water Management Disaster in the Soviet Union, 241 Sci. 1170 (1988). 44  See, e.g., Kyoto Protocol. 45  International Strategy for Disaster Reduction, G.A. Res. 60/195, A/RES/60/195 (2005). 46  Principle 7 of the Rio Declaration states “States should cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global and environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.” U.N. Conference on Environment

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c­ ontribution of developed states to global environmental problems and thus a resulting greater obligation to contribute to solutions. Sometimes international law obligations spell out the contents of common but differentiated responsibilities as with ozone and climate treaties, but other times, the substance is left open.47 Foreign valuation and cost-benefit analysis might add some rigor to common but differentiated responsibilities by setting different valuation amounts based on countries’ divergent capacities. In this way, many or all states might be responsible for taking actions to reduce disaster risk beyond their own borders, but the specific costs and actions would vary. What cost-benefit analysis and explicit foreign valuation add is a way to compare productively across state contributions and across various disaster risks. For instance, in considering what states should contribute to eliminate or reduce a risk like space pollution, foreign valuation and cost-benefit analysis could help identify which states should shoulder the most significant burdens and how to allocate among them. Fifth, explicit foreign valuation might be used to operationalize the application of the precautionary principle in disaster risk reduction. While many states and environmentalists voice support for the precautionary principle as a way to approach environmental risk and counteract under-appreciation of risks by technocrats and corporations, the actual content of the principle is difficult to pin down.48 For instance, the Rio Declaration states that “[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”49 In the context of disasters, valuation and cost-benefit analysis might be used to identify what counts as a cost-effective measure. Take, for example, the construction and maintenance of nuclear facilities. When France is deciding whether to add or continue its use of nuclear power plants or to add additional safety mechanisms, it ought to consider possible serious damage not only to itself, but to its neighbors as well. Cost-benefit analysis forces those considerations to be articulated and subject to scrutiny for the underlying value choices. Furthermore, the limitations of cost-benefit analysis for uncertain and fat-tailed damage distributions can and Development, June 3–14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 Princ. 7 (Aug. 12, 1992). 47  Christopher Stone, Common but Differentiated Responsibilities in International Law, 98 Am. J. Int’l L. 276 (2004). 48  Lesley Wexler, Limiting the Precautionary Principle, 39 U.C. Davis L. Rev. 459 (2006). 49  U.N. Conference on Environment and Development, June 3–14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (Aug. 12, 1992).

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help reveal where tools like the precautionary principle may be particularly important: for example, in the use of “anti-catastrophe” principles that seek to manage worst-case scenarios.50 Finally, and perhaps least intuitively, explicit foreign disaster valuation might make clearer the need to create new international environmental law to address disasters that are poorly valued by traditional cost-benefit frameworks alone. This category should include disasters for which there is true uncertainty, in the sense that it is impossible to create a probability distribution— such risks cannot be meaningfully valued using the expected value formula on which cost-benefit analysis relies—and disasters with low-probability but high-damage “fat tails.” So-called “global catastrophic risks,” which pose the risk of human extinction, present an important category of risks with these qualities. Such risks include disasters from global pandemic, nuclear war, artificial intelligence, geoengineering-induced supercolliders, asteroids, supervolcanoes, nanotechnology, and synthetic biology.51 3 Conclusion Foreign disaster risks present particular puzzles for policymakers who must find some way to allocate scarce domestic resources. Yet precisely because of the philosophical, psychosocial, political, and practical complexities of foreign disaster valuation, policymakers should be wary of dealing with these decisions through slapdash intuitive processes that can allow for analytical error and costly mis-steps. Explicit valuation processes—including the types of explicit, quantitative, and monetized valuations promoted by cost-benefit analysis—thus offer a valuable tool for informing the policy decisions underlying applications of international environmental law to disaster risk.

50  See Cass Sunstein, Worst-Case Scenarios (2007). 51  Nick Bostrom & Milan Cirkovic, Global Catastrophic Risks (2011); Dennis Pamlin & Stuart Armstrong, Twelve risks that threaten human civilization: the case for a new risk category (2015).

CHAPTER 11

Liability and Compensation as Instruments of Disaster Risk Reduction? Michael G. Faure* 1 Introduction There is a strong demand for compensation in the aftermath of a disaster. The pressure on politicians to provide some form of compensation will be especially strong. Both in international environmental law (more particularly in international conventions dealing with marine oil pollution and nuclear liability) as well as in domestic law a variety of liability and compensation mechanisms can be found that (to various extents) provide compensation to victims. Liability rules are strongly used in the case of man-made or technological disasters. In that case usually a tortfeasor can be identified and, to the extent that that tortfeasor is solvent, liability rules can be employed to compensate the victims. Liability rules will usually not be available in case of natural disasters as a result of which, in that case, often other compensation mechanisms (insurance, compensation funds) are used.1 Moreover, in many international conventions also hybrid forms of compensation are used, e.g. a first layer of compensation to be paid by the liable injurer and a second layer consisting of payment via a compensation scheme. The question arises to what extent these various liability and compensation schemes can be seen as tools to reduce disaster risks. That is the central focus of this contribution. Economic analysis will be used to show that the ex post compensation mechanism may have (positive or negative) effects on the ex ante incentives to reduce disaster risks. Depending upon the specific design, liability rules may provide incentives to tortfeasors to invest in risk reduction mechanisms. There is hence a close link between an ex post finding of liability *  I am grateful to Andrea Rigamonti and Liao Wenqing (Maastricht) for useful research assistance and to Marina Jodogne (Maastricht) for editorial assistance. This chapter is an excerpted version of a longer article that will appear as an article in the Stanford Journal of International Law (2016). 1  See on the distinction between natural and man-made disaster and the increasingly blurred character of the distinction the chapters in Part I of the book where these notions and distinctions are more fully defined and discussed. © Peel and Fisher (eds), ���6 | doi ��.��63/9789004318816_012

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and ex ante disaster risk reduction: an ex post finding of liability will not only provide compensation to victims, but the mere foresight of being held liable ex post will lead potential tortfeasors (who could cause disasters) to invest in disaster risk reduction. It is argued in this chapter that those positive incentive effects are less likely in the case of (government financed) compensation schemes or funds. Section 2 of the chapter sketches a brief overview of the available policy instruments, showing to what extent in international conventions liability rules, government compensation and first party insurance are used. This is followed in section 3 by some institutional reflections on how the international regimes have (some more than others) evolved, taking into account insights from new disasters. Next, a critical analysis of the way in which the different policy instruments are used will follow (section 4) as well as a few concluding remarks (section 5). 2

Policy Instruments: An Overview

There is an impressive number of international environmental agreements, many of which have, to some extent, a goal to reduce disaster risks. However, our focus is on those tools of international law that do have explicit provisions with respect to liability and compensation, in other words, the instruments that are applied in the aftermath of a disaster to compensate victims. I will thereby distinguish between liability rules contained in specific conventions (1) and forms of government compensation or alternative funding that can be found in conventions as well (2). Although not currently present in conventions, I will also pay attention to the alternative of first party insurance, since that is considered, especially in the area of natural disasters and terrorism, as an attractive tool to provide adequate compensation to victims of disasters and incentives for disaster risk reduction as well (3). 2.1 Liability Rules Liability rules can be found in different types of conventions. Below we briefly review conventions with respect to (1) civil aviation, (2) nuclear liability, (3) marine oil pollution, and (4) and a few other relevant treaties, followed by a brief comparison (5). 2.1.1 Civil Aviation With the development of civil aviation, people started to realize the potential damage caused by aircrafts to both the persons and property on board and to third parties on the surface. The Convention for the Unification of Certain

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Rules relating to International Carriage by Air was concluded in Warsaw in 1929 and applies to damage to international carriage of persons, baggage and cargo.2 Damage to third parties on the surface has a different characteristic, in that usually an ex-ante contract cannot be reached between the potential injurers and victims. A separate liability regime was therefore established in 1952: the Rome Convention. This convention was later revised by the 1978 Protocol to Amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (1978 Protocol).3 The 1952 Rome Convention establishes strict liability, attributed to aircraft operators. The term “operator” is defined in the Convention as “the person who was making use of the aircraft at the time the damage was caused, provided that if control of the navigation of the aircraft was retained by the person from whom the right to make use of the aircraft was derived, whether directly or indirectly, that person shall be considered the operator”.4 With the exception of deliberate acts or omissions, Article 9 of the Rome Convention constitutes the only basis of liability for the operators. However, this convention does not expressly exclude liability of other parties and it does not prejudice the right of recourse against other parties (Article 10). Liability caps are established under the Rome Convention according to the weight of the aircraft. The Rome Convention also establishes a mandatory financial security system. Any Contracting Parties may require the aircraft operator to maintain insurance coverage for the liability for damage in its territory up to the liability limitation.5 The Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention) establishes three types of liability: liability for death and injury of passengers, damage to baggage and damage to cargo.6 Strict liability is established for death and bodily injury of a passenger if the damage happened on board the aircraft or in the course of embarking or disembarking. In case of destruction or loss of, or damage to, baggage, the basis of 2  Convention for the unification of certain rules relating to international carriage by air, signed at Warsaw on 12 October 1929—Warsaw Convention 1929. 3  Protocol to amend the Convention on damage caused by foreign aircraft to third parties on the surface, signed at Montreal on 23 September 1978 (entered into force on 25 July 2002) (Montreal Protocol 1978). 4  Art. 2(2a) of the 1952 Rome Convention. 5  Art. 15(1) of the 1952 Rome Convention. 6  Convention for the unification of certain rules for international carriage by air of 1999 (the Montreal Convention).

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liability depends on the checking status of the baggage. Strict liability applies for checked in baggage. For unchecked baggage and personal items, the carrier is only liable if fault can be found for the carrier or its servants/agents.7 2.1.2 Nuclear Liability A system of absolute liability is established under the Paris Convention.8 According to the Paris Convention, the operator is liable for damage caused by a nuclear incident in a nuclear installation or involving nuclear substances coming from such installations.9 Similar stipulations about absolute liability and exonerations can also be found under the Vienna Convention.10 The second generation of these conventions has not changed the principle that strict liability is imposed on the operator of a nuclear power plant. However, an important change took place as far as the available defenses for the operator are concerned: natural disasters are no longer an applicable defense.11 Under the Paris Convention, liability is channeled to operators. No one else is liable for the damage caused by a nuclear incident.12 The “operator” is defined as “the person designated or recognized by the competent public authority as the operator of that installation”.13 The Vienna Convention also has similar provisions.14 Again, this principle of channeling liability exclusively to the nuclear operator can also be found in the second generation nuclear liability conventions. Under both the Paris Convention and the Vienna Convention, the operator’s liability is limited both in amount and in time. The Paris Convention sets the maximum liability of the operator at 15 million Special Drawing Rights (SDRs), but allows the Contracting Party to establish by legislation a greater

7  Art. 17 of the Montreal Convention. 8  The expose des motifs of the Paris Convention, point 14 (Paris Convention on third party liability in the field of nuclear energy as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, and by the protocol of 12 February 2004 (the Protocol to the Paris Convention, 956 UNTS 251). 9  Art. III(a) of the Paris Convention. 10  Arts. I(1)(k), IV(1)(3), the Vienna Convention. 11  See Art. IX, The Protocol to the Paris Convention; Art. IV(3), The Protocol to the Vienna Convention. 12  Art. VI(a)(b), the Paris Convention. 13  Art. I(a)(vi), the Paris Convention. 14  Arts. II(5), X, the Vienna Convention (The Vienna Convention on civil liability for nuclear damage of 21 May 1963).

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or lesser amount considering the capacity of insurance and financial security.15 The Contracting Party can also require a lower amount according to the nature of the installation. The lower amount should be no less than 5 million SDRs.16 Under the Vienna Convention, the cap of liability should be no less than US $5 million.17 This liability limitation has, however, been changed under the second generation nuclear conventions. The Protocol to the Paris Convention increases the limit for nuclear operators to be no less than 700 million euro. The Contracting party can reduce the liability to be no less than 70 million euro for an incident originating from a nuclear installation, or to be no less than 80 million euro for the carriage of nuclear substances according to the reduced risks.18 The convention even allows the adoption of unlimited liability by the Contracting Parties, as long as the financial security required is no less than the amount mentioned above.19 To seek financial security coverage for the operator’s liability is important for the international regimes on nuclear liability. Both conventions require the operator to have and maintain insurance or other financial security up to the cap of its liability.20 It should be mentioned that in addition under the Brussels Complementary Convention two additional layers of compensation were added via public funds. They will be discussed below when referring to additional compensation mechanisms.21 2.1.3 Marine Oil Pollution The international oil pollution compensation system consists, on the one hand, of the 1969 International Convention on Civil Liability for Oil Pollution (CLC)22 and, on the other hand, of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (the Fund Convention).23 15  Art. VII(b) of the Paris Convention. For further details see Jing Liu, Compensating Ecological Damage. Comparative and Economic Observations 212–213 (2013). 16  Art. VII(b), the Paris Convention. 17  Art. V, the Vienna Convention. 18  Art. VII(a)(b), the Protocol to the Paris Convention. 19  Art. X(b), the Protocol to the Paris Convention. 20  Art. X, the Paris Convention; Art. VII, the Vienna Convention. 21  See below 2.2. 22  The International Convention on civil liability for oil pollution damage (CLC) (entered into force on 19 June 1975). 23  International Convention on the establishment of an international fund for compensation of oil pollution damage (Brussels, 18 December 1971). See further on those conventions Hui Wang, Civil Liability for Marine Oil Pollution Damage. A Comparative

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Strict liability is adopted in the 1969 CLC convention. Hot debates took place during the negotiation of the convention over the question of on whom the liability should rest. Under the influence of the international regimes for nuclear liability, no doubts were expressed on the reasonability of the channeling of liability. The debates focused on whether it should be the ship-owner or the oil industry that bears the liability.24 In the end, a compromise was made: liability under the CLC fell on the shoulders of the ship-owner. As a price, the oil industry also needed to contribute to the compensation through a compensation fund. At the conference to pass the 1969 CLC, it was agreed that an international compensation fund would be established in the near future.25 Liability under the CLC is strict. From what was just mentioned as far as the creation of the 1969 CLC and the 1971 Fund Convention is concerned, it is clear that the 1969 CLC created a channeling of liability to the tanker owner. The ship-owner is defined as “the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship”.26 The 1969 CLC pre-empts other legislation: no other claims are eligible other than those under the convention. It provides explicitly that no claims can be made against the servants or agents of the owner.27 The liability established under the 1969 CLC was capped at 210 million francs or 2000 francs for each ton of the ship’s tonnage. Several serious oil spills that happened after the adoption of the original CLC and the Fund Convention— for example, the Amoco Cadiz in 1978 and the Tanio in 1980—triggered revisions to the original conventions. The first Protocols to revise the conventions were drafted in 1984. Since the United States did not ratify the protocols, the protocols could not come into force. Nevertheless, the changes in the 1984 protocols are largely incorporated in the subsequent 1992 Protocols. 2.1.4 Other Relevant Treaties 2.1.4.1 HNS Convention Since the CLC only covers oil pollution damage a separate convention was drafted regarding the liability and compensation for damage in c­ onnection and Economic Study of the International, US and chinese compensation regime 53–130 (2011). 24  Hui Wang, Shifts in Governance in the International Regime of Marine Oil Pollution Compensation: A Legal History Perspective, in Shifts in Compensation for Environmental Damage 212–219 (Michael Faure & Albert Verheij eds., 2007). 25  Ibidem. 26  The 1969 CLC, Art. I 3. 27  The 1969 CLC, Art. III 4.

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with the carriage of hazardous and noxious substances by sea (the HNS Convention).28 Personal injuries, environmental damage, economic losses and the costs of preventive measures which result from the carriage of hazardous and noxious substance by vessels are governed by the HNS Convention.29 The HNS Convention imposes a strict liability regime on the owner of the ship. The ship owner according to Article 1 is defined as “the person or persons registered as the owner of the ship or, in the absence of registration, “the person or persons owning the ship”. Liability of the ship owner under the HNS Convention is again capped. The ship owner is entitled to limit his liability depending on the tonnage of the ship and the form of the transported substances (bulk HNS or p ­ ackaged HNS), according to a calculation scheme provided in Article 9 of the Con­ vention. If the amount of the damage exceeds the liability cap of the owner, the HNS Fund will step in. The owner of a ship carrying hazardous and noxious substances is required to take insurance or to maintain other acceptable financial securities to cover sums fixed by applying the limits of liability. 2.1.4.2 Civil Liability Protocol In execution of the relevant provisions of the Convention on the Protection and Use of Transboundary Water Courses and International Lakes and the Convention on the Transboundary Effects of Industrial Accidents (1992) a civil liability protocol was adopted on 21 May 2003.30 However, this protocol is not yet in force.31 The preamble to the civil liability protocol refers to the polluter pays principle as the basis for the liability regime. Based on the polluter-pays principle,32 operators are strictly liable for the damage caused by industrial 28  The International Convention on liability and compensation for damage in connection with the carriage of hazardous and noxious substances by sea of 3 May 1996 (HNS Convention). See further Wang, supra note 24, at 38–39. 29  Art. 1 of the HNS Convention. 30  Protocol on civil liability and compensation for damage caused by the transboundary effects of industrial accidents on transboundary waters to the 1992 Convention on the protection and use of transboundary water courses and international lakes and to the 1992 Convention on the transboundary effects of industrial accidents. 31  . The Protocol was signed by 24 Parties in 2003, but only one (Hungary, on 25 June 2004) made the step to “ratification, acceptance, approval or accession”. 32  The Preamble to the Protocol reads “Taking into account the polluter-pays-principle as a general principle of international environmental law, accepted also by the parties to the above-mentioned conventions”.

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accidents.33 Furthermore, a fault-based liability might apply to other persons such as servants or agents of the operator, if they cause or contribute to damage by their “wrongful, intentional, reckless or negligent acts or omissions”.34 The concept of an “operator” is defined in Article 1(e) of the 1992 Convention on the Transboundary Effects of Industrial Accidents as “any natural or legal person, including public authorities, in charge of an activity, e.g. supervising, planning to carry out or carrying out an activity”. The protocol includes financial limits on the amount of compensation. Operators shall ensure that they have financial security covering at least the minimum limits specified in Annex II of the Protocol: 2.5 million units of account for Category A hazardous activities and 10 million units of account both for Categories B and C.35 2.1.4.3 Space Liability The 1971 Convention on International Liability for Damage caused by Space Objects (Space Liability Convention)36 provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft. Furthermore, a launching State shall be liable for damage due to its faults in space. The convention imposes absolute liability, which refers to a liability system without any defense or exclusion. Article 2 states that “[a] launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”. The Liability Convention refers to the concept of “launching States”. According to Article 1 of the convention, the term launching State means: “(i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched”. The term “launching” also includes attempted launching.37 2.1.5 Liability Regimes Compared It is striking that the liability regimes in the international conventions, discussed above, show a few similarities. For example all conventions introduce strict liability. There are some nuances in the sense that some conventions 33  Article 4(1). Industrial hazardous activities are listed in the annex of the Convention on the Transboundary Effects of Industrial Accidents. 34  Article 5. 35  For a definition of the categories, see Annex I and II of the Protocol. 36  The 1971 Convention on international liability for damage caused by space objects (adopted on 29 October 1971, Resolution 2277 by the UN General Assembly 26th session, proclaimed on 1 September 1972). 37  Liability Convention, Arts. 1(b) and (c).

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adopt a liability regime that is even stricter than the others. For example, the nuclear liability conventions refer to “absolute liability” and the same is the case for the Space Liability Convention. The latter seems indeed to be “absolute” in the sense that no defenses whatsoever are allowed. A second feature of all conventions is that some form of mandatory financial security is required. The overview of the conventions shows that apparently at the international level the introduction of a duty to provide financial security in order to be able to meet the strict liability imposed in the conventions seems to be state of the art. Moreover, the liability regimes discussed show that a broad set of options can be provided to operators to provide proof of their solvency. This should hence not necessarily be limited to insurance. For example, the Rome Convention and the Civil Liability Protocol refer to a variety of financial security mechanisms such as cash deposits, bank guarantees and guarantees by the Contracting State. These are interesting examples if one were to consider the introduction of a duty to provide financial security to cover the liability. In six out of the seven international conventions discussed above liability was limited. Limitation of liability is only not applied in the Space Liability Convention. The way in which the liability cap is limited can be different; in some cases it is the convention itself that establishes the cap (like in the marine pollution and HNS Convention as well as in the conventions related to aviation), but the caps are dependent upon the nature and amount of either the cargo transported or the tonnage of the ship. In other cases the conventions provide the scope for the limitation of liability, but the precise amount of the cap can be set in domestic law (that is more particularly the case in the conventions with respect to nuclear liability). Yet another interesting feature in the conventions is the channeling of the liability to the operator. Again, although the formulation can be different, a channeling of liability can be found in all seven conventions having provisions with respect to liability. The difference in the way the channeling works relates more particularly to the fact whether in principle liability of others is still possible or whether this is totally excluded. For example, in the marine pollution conventions liability of others than the ship owner is in principle excluded, whereas in the aviation conventions the liability is channeled to the operator/air carrier, but the possibility of a liability of others is not totally excluded. If one were to summarize these findings one can hence notice that in those international conventions four important features appear in combination: a. strict liability; b. compulsory financial guarantees; c. a financial limit on the liability and d. a channeling of the liability. A fifth feature which is present in

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some conventions (in fact only in the nuclear liability, marine pollution and HNS Convention) is the presence of an additional layer of compensation.38 2.2 Additional Layer of Compensation As the description of the liability regimes in the international conventions made clear in the nuclear and marine pollution conventions an additional layer of compensation is provided. 2.2.1 Nuclear Liability Conventions The aim of the 1963 Brussels Supplementary Convention is to supplement the compensation system provided in the Paris Convention “with a view to increasing the amount of compensation for damage which might result from the use of nuclear energy for peaceful purposes”.39 Important changes occurred in the international regime after the Chernobyl accident (1986). The first tier (the liability of the operator of the nuclear power plant) was increased to € 700 million. Moreover, according to the Protocol to the Brussels Supplementary Convention the Contracting Parties must undertake that compensation in respect of nuclear damage up to an amount of € 1.5 billion per nuclear incident is provided. This is divided as follows: – up to an amount of at least € 700 million: funds provided by insurance or other financial security or out of public funds provided pursuant to Art. 10(c) of the Paris Convention; – between this amount and € 1,200 million: public funds to be made available by the Contracting Party in whose territory the nuclear installation of the operator liable is situated; – between 1,200 million € and € 1,500 million, out of public funds to be made available by all the Contracting Parties according to the formula for contributions. Finally, the Convention on Supplementary Compensation (CSC), adopted on 12 September 1997, is a new and independent legal instrument, which means that a state does not need to be party to the Vienna or Paris Convention in order to become a party to the CSC.

38  Since that layer is not paid by the operator it cannot be considered to belong to the liability rules discussed in this point. 39  Consideration of the Brussels Supplementary Convention. Need to provide appropriate treaty references.

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The total amounts available in the nuclear liability regime hence can be summarized in the following table: TABLE 1

Available amounts of compensation under the international nuclear liability conventions40 Amount in million €

What convention

Who pays?

Paris Convention Nuclear operator Brussels Supplementary Installation State (or Convention nuclear operator) Collective State Fund Total NEA-regime Vienna Convention Nuclear operator Collective State Fund Total Vienna Convention Operator/installation Convention on State Supplementary Compensation Collective State Fund Total CSC

First generation

Second generation

5.7 193.7

700 500

142.4 341.8 4.2 – 4.2

300 1,500 170.9 170.9 341.8 341.8

341.8 683.7

2.2.2 Marine Oil Pollution As mentioned before, the prospect of a compensation fund was already decided at the 1969 conference leading to the conclusion of the CLC 1969.41 Two years after the adoption of the 1969 CLC, the 1971 Fund Convention was concluded. The 1971 Fund Convention has two aims: to provide compensation when the protection available from the 1969 CLC is inadequate and to relieve the ship owners from additional financial burden.42 40  See Michael Faure & Tom Vanden Borre, Compensating Nuclear Damage: A Comparative Economic Analysis of the US and International Liability Schemes, 33 William & Mary Environmental Law & Policy Review 219–86, at 239 (2008) (the table in that article provides the amounts of compensation in US$ according to the exchange rate in 2008). 41  See 2.1.3. 42  The 1971 Fund Convention, Art. 2(1).

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The 1971 Fund Convention plays two roles: to compensate the victims and to indemnify the ship owners. Firstly, it complements the compensation from the 1969 CLC under these situations: no liability can be established under the 1969 CLC; owners and their financial guarantors are financially incapable of compensation and the damage exceeds the owners’ liability. To encourage preventive measures, the costs raised from the voluntary activities of the owners are also treated as pollution damage.43 The Fund has no obligation to pay if it can prove the damage resulted from an act of war, hostilities, civil war or insurrection or oil from a warship or a state owned/ operated ship; or if the claimant cannot prove that damage resulted from a ship-related incident. Contributory negligence can also be used as a defense for the fund.44 The compensation available from the 1971 Fund is not unlimited: the total sum of the amount from the 1969 CLC and the 1971 Fund Convention is capped at 450 million francs; for the damage caused from a natural disaster of an exceptional, inevitable and irresistible character, the amount payable from the Fund is capped at 450 million francs. The Assembly of the Fund has the right to increase the amount up to 900 million francs. When claims exceed the amount payable from the fund, payment should be reduced proportionally for each claimant.45 The original CLC and Fund Convention proved to be insufficient to cover catastrophic oil pollution damage. In 1992 a new compensation fund was established.46 The 1992 Fund Convention removed the function of the Fund to alleviate the burden of liability of ship owners. Therefore the only function of the 1992 Fund is to provide additional protection to the victims of oil pollution. The conditions of the application of the 1992 Fund to compensate victims are the same as that of 1971 Fund.47 The available compensation from the 1992 CLC and the 1992 Fund Convention is increased to 203 million SDRs.48 Though the cap on compensation under the 1992 Fund Convention had been considerably increased, shortly after its adoption, the amount was dwarfed again by yet other catastrophic oil pollution cases.49 Against this

43  The 1971 Fund Convention, Art. 4(1). 44  The 1971 Fund Convention, Art. 4(2)(3). 45  The 1971 Fund Convention, Arts. 4(4)(5)(6). 46   International Maritime Organisation Protocol of 1992 to amend the International Convention on the establishment of an international fund for compensation for oil pollution damage of 18 December 1971 (London, 27 November 1992). 47  The 1992 Fund Convention, Art. IV 1. 48  The 1992 Fund Convention, Art. IV 4. 49  The Nakhodka accident near Japan in 1997 and the Erika disaster in France in 1999 are two examples.

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background, a Supplementary Fund was established in a 2003 Protocol.50 The Supplementary Fund provides an additional layer of compensation for oil pollution victims under the 1992 CLC and the 1992 Fund Convention. In other words, a condition for the payment from the Supplementary Fund is that the victim is entitled to compensation under the 1992 CLC and the 1992 Fund Convention, and is unable to obtain full and adequate compensation from them.51 The Supplementary Fund Convention increases the aggregated amount of compensation up to 750 million SDRs.52 The amount of compensation available under the international marine pollution regime can be summarized as follows: TABLE 2

Compensation for pollution damage under the international regime5354

Tonnage of ship (GT)

CLC 1969 (Euro)

CLC 1992 (Euro)

2000 Protocol (Euro)

Ships ≤ 5000 5,000