Towards A Vision For Climate Justice in A Post2015 World

3
Towards a vision for Climate Justice in a

post-2015 world
The current multilateral climate change negotiations continue to insist

that they accept the Assessment Reports of the Intergovernmental Panel
on Climate Change (IPCC). Yet, while the negotiations are making some
progress, the emissions reduction commitments which have been made
so far are unlikely to avoid, or in some cases even reduce, the climate
change impacts about which the IPCC has warned. As discussed in the
previous chapter, the IPCCs AR5 states that without additional efforts to
reduce GHGs (emphasis added), their growth will continue due to the
growth in global population and economic activities. GHG concentra-
tions in the atmosphere will exceed 450 parts per million (ppm) CO2eq
by 2030 and reach concentration levels of 7501300 ppm CO2eq by 2100.
This is similar to the range in atmospheric concentration levels between
the RCP6.0 and RCP8.5 pathways in 2100, discussed in Chapter 1.
Further, to stabilise at atmospheric concentrations of 450 ppm by 2100,
GHG emissions must be 4070 per cent lower in 2050 compared with
2010, and near zero or below in 2100, and to do this all countries must
begin immediately to reduce emissions including by adopting a single
carbon price (emphasis added).
Meanwhile, many multilateral agencies conrm that [t]he world has
recently witness[ed] a series of weather events so extreme that they are at
the limits of modern human experience,1 and are undercutting develop-
ment efforts in communities that are already poor and vulnerable.2 The
impacts of these events are being felt strongly in developed economies as
well, while the slow onset disasters of drought and desertication in
various regions of the world exacerbate poverty, conict and migration.
1
See UNDP, UNEP, World Bank, World Resources Institute, Decision Making in a
Changing Climate: Adaptation Challenges and Choices (World Resources Report
20102011) 13 available at http://pdf.wri.org/world_resources_report_2010-2011.pdf
(accessed 12 January 2015).
2
Ibid. at 29.
104
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climate justice approach to disaster law 105
Indeed, the Parties to the United Nations Framework Convention on
Climate Change (UNFCCC) themselves acknowledge that neither their
mitigation efforts nor adaptation strategies will effectively ward off all of
the impacts of climate change. Consequently, as discussed in Chapter 2,
the Warsaw International Mechanism for Loss and Damage associated
with Climate Change Impacts (the Warsaw International Mechanism)
has been established to try to protect those developing countries most
impacted by climate change.
Given this, there is an urgent need for all countries to: mitigate
greenhouse gas (GHG) emissions; engage in climate change adaptation
and disaster risk reduction; have in place adequate disaster response,
rehabilitation and recovery processes; and establish and facilitate public
and private institutions for compensating the victims. This book will
demonstrate that the uncompensated climate disaster losses are immense
as governments and insurance mechanisms reach their limits, and
developed country climate nance strains to cope with demands for
nancial assistance. As the author argues in Chapter 6, where these limits
are reached a fossil fuel-funded Climate Disaster Response Fund should
be established under the Warsaw International Mechanism to compen-
sate the victims in developing countries most vulnerable to climate
change. In this chapter, the focus is on developing the theoretical under-
pinnings for an approach to Climate Justice and Disaster Law.
3.1. A Capabilities-inspired Climate Justice approach to Disaster Law

The author suggests that a Capability Approach to Climate Justice has
the potential to shine the light on a pathway forward for all Parties
negotiating under the United Nations Framework Convention on Climate
Change (UNFCCC). As the previous chapters have demonstrated, cli-
mate disasters resulting from extreme weather and slow onset events
threaten all attempts to create and protect Capabilities in communities
around the world. The devastating impacts of climate disasters seriously
undermine development efforts in developing countries, while also
wreaking havoc on peoples lives in developed countries, especially those
who are already vulnerable. The intersections of hazard, vulnerability and
exposure create disasters irrespective of geography or wealth. However, it
goes without saying that in developed economies the institutions to
prevent, prepare for, respond to and rebuild following a disaster, are
more likely to be intact. Even so, no matter how strong a countrys
disaster institutions may be, ultimately they are insufcient for compen-
sating individuals for the loss and damage suffered.
106 vision for climate justice in a post-2015 world
Consequently, this chapter contributes a unique theoretical approach
to Climate Justice3 in the context of Climate Disaster Law inuenced
primarily, but not exclusively, by the work of Amartya Sen and Martha
Nussbaum.4 The Capability Approach is inspirational for two reasons.
First, it resonates well with the authors 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
political leaders to embrace climate science and engage in a comprehen-
sive program of: prevention; response; recovery, rehabilitation and
reconstruction; and compensation. In developing countries, the capacity
to respond to disasters depends largely on having the nancial resources
to engage in adaptation and disaster risk reduction activities, while
compensation remains a signicant difculty. Although a weakness of
both Sens and Nussbaums Capability Approaches is their failure to
adequately acknowledge ecosystems and non-humans, their Approach
does not fail because of this omission, as discussed later in this chapter.
A second reason for relying on Sens work is his conception of justice
enunciated in The Idea of Justice.5 Although Sen espouses a more general
theory of global justice here, it is his insistence on procedural justice the
idea that justice should extend to, and take account of, the actual lives of
those affected by injustice that resonates in the context of Climate
Disaster Law. It goes beyond all the other theories of Climate Justice,
discussed in this chapter, by insisting that a conception of justice be
based on impartial and practical public reasoning about how a society
should respond to an issue like climate change. Given the climate scepti-
cism and manipulation of climate science by vested interests, and the
consequent failures to adequately respond to climate change in most
3
See Rosemary Lyster, Towards a global justice vision for Climate Law in a time of
unreason (2013) 4/1 Journal of Human Rights and the Environment 3257, and
Rosemary Lyster, Adaptation and Climate Justice, in Jonathan Verschuuren (eds.),
Research Handbook on Climate Change Adaptation Law (Cheltenham, United Kingdom:
Edward Elgar Publishing, 2013) at 3269. A view of procedural justice, i.e., recognition,
rights of participation in decision-making about climate change treaties, and the distribu-
tion of power is discussed in Marco Grasso, An ethical approach to climate adaptation
nance (2010) 20 Global Environmental Change 74, 77.
4
Martha C. Nussbaum, Creating Capabilities: The Human Development Approach (Cam-
bridge MA: The Belknap Press of Harvard University Press, 2011).
5
Amartya Sen, The Idea of Justice (New York: Penguin Books, 2009).
jurisdictions, Sens insistence on impartial public reasoning is intrinsic-
ally important to notions of Climate Justice. This builds on the admission
by developed countries, at the July 2012 UNFCCC Bonn negotiations,
that one of the reasons they nd it difcult to commit to the higher end
of their pledges is the lack of domestic support for action on climate
change. The author will propose that an essential aspect of climate
change justice is a willingness to pay on the part of all negotiating
parties, and that this can be derived via Sens notion of a deliberative
global justice. Of course Sens idea of justice is deeply embedded in his
Capability Approach, which is highly relevant to vulnerability and resili-
ence to climate change and attempts to adapt to it.6
3.1.1. The Capability Approach

The life work of Sen and Nussbaum cannot be adequately represented
here. Sufce it to say, for present purposes, that Sens and Nussbaums
essential question is: What is this person able to do and to be? The
Capability, or Capabilities (as preferred by Nussbaum), Approach answers
this question.7 Capability has two essential tenets: freedom and function-
ings (beings and doings that people value and have reason to value).8 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).9 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.10
As Nussbaum has recently explained, 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 peoples powers of
self-denition are respected.11 It is resolutely pluralist about value in the
sense that the central Capability achievements are different in quality, not
6
Note that a Senian approach to the allocation of adaptation funds on account of a lack of
human security has been developed elsewhere; see Marco Grasso, An ethical approach to
Climate Adaptation Finance (2010) 20 Global Environmental Change 74.
7
Nussbaum, see Note 4 at 20.
8
See Sabina Alkire, The Capability Approach to Quality of Life, Working paper prepared
for the Working Group Quality of Life, (2008), p. 5, www.stiglitz-sen-toussi.fr/docu
ments/capability_approach.pdf (accessed 13 January 2015).
9 10 11
Ibid. Nussbaum, see Note 4 at 25. Ibid. at 18.
just quantity. Finally, it is concerned especially with Capability failures
that are the result of discrimination or marginalisation, 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 dened by their Capabilities. The author deliberately adds to
Capability failures the impacts of climate disasters.
Some of the essential differences between Sens and Nussbaums
approaches may be loosely summarised as follows: Nussbaum provides
a list of ten basic Capabilities while Sen focuses rather on quality of life
issues;12 Nussbaums selection of Capabilities is closely bound up with
dignity and regards Constitutional Law and public policy as agents in a
nations quest for social justice (or for deriving goals for the community
of nations);13 and Nussbaums focus on legal institutions leads her to
conceive of the procedural value of the Capability/ies Approach very
differently from Sen. This last difference stems largely from Nussbaums
belief in a large overlap between human rights and Capabilities, com-
pared with Sens view that a Capability Approach can include matters of
procedure (where one is able to engage in a certain sort of process)
whereas rights are always a matter of substantive opportunity (what
one is actually able to have).14 Ultimately, Sens approach is preferred
by the author over Nussbaums because it avoids the risk of listing some
Capabilities15 and missing highly signicant others, such as the inherent
rights of ecosystems and their role in supporting human Capabilities.16
Also, Sens rejection of a Rawlsian faith in just institutions for achieving
justice, discussed in the previous chapter, must surely call into question
Nussbaums faith in legal institutions such as the Constitution, judicial
review and legislative debate to satisfy the procedural aspects of a Cap-
ability Approach.17 For one thing, in many developing economies where
Capabilities need to be protected from climate disasters, the institutional
protections in a Constitution and judicial review, and legal remedies to
enforce them before an independent judiciary, might be rather fragile.
However, whatever their differences, it is very likely that climate change
12 13 14
Ibid. at 19. Ibid. at 29. Ibid. at 67.
15
These include: Life; Bodily health; Bodily integrity; Senses, imagination, and thought;
Emotions; Practical reason; Afliation; Other species (Being able to live with concern for
and in relation to animals, plants, and the world of nature); Play; Control over ones
environment; Nussbaum, see Note 4 at 34.
16
See, for example, Breena Holland, Justice and the Environment in Nussbaums Capabil-
ities Approach (2008) 61(2) Political Research Quarterly 319.
17
Sen, see Note 5 at 67.
will affect in very real ways what a person is able to be and to do. As was
discussed in Chapter 2 and again here, a crucial contribution which Sen
makes to the idea of justice is his insistence that there must be a process
of impartial public reasoning to arrive at just outcomes in a democracy.
However, it would be remiss to be considering these ideas of justice
from a purely anthropomorphic perspective. Sen and Nussbaum have
both been criticised for failing to adequately address the plight of non-
humans and ecosystems when developing their Capability Approach and
ideas of justice. Nevertheless, others, including Schlosberg18 have argued
persuasively for extending the Capability Approach beyond the human.
This can be done in one of two ways: either by recognising the extent to
which human Capabilities rely on environmental ecosystem services, or
by proposing an extension of the Capability Approach to non-human
nature.19 Schlosberg points to the fact that although Sens contribution
beyond human Capabilities is limited, he has acknowledged that vari-
ations in environmental conditions, such as climate circumstances (tem-
perature ranges, rainfall, ooding and so on) inuence Capabilities, and
impact on functioning and freedoms.20 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 conicts between species should be solved by working for
a world in which the conicts will not occur.21 She states that her main
contention is that all animals are entitled to a threshold level of oppor-
tunity for a life characteristic of their kind.22 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 anthro-
pocentric reasons for recognising non-human Capabilities must sufce.23
Schlosberg concludes that there are two ways that the Capabilities
Approach can frame a conception of Climate Justice. First, if the Cap-
abilities Approach is about functioning then function for human beings
means providing for those ecological support systems that make
18
David Schlosberg, Climate Justice and Capabilities: A Framework for Adaptation Policy
(2012) 26(4) Ethics & International Affairs 445.
19 20 21 22
Ibid. Ibid. at 454. Nussbaum, see Note 4 at 63. Ibid. at 162.
23
Ibid. at 165.
functioning possible. Secondly, and preferably, the Approach could be
extended beyond human functioning to the functioning of nature and
ecological systems to recognise 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.24 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.25
In this book, the author takes the prevailing iterations of the Capability
Approach and its profound inuence on the idea of justice one step
further to craft a Climate Justice approach to Climate Disaster Law.
Before turning to the distinctly procedural aspects of Sens idea of
justice, it is necessary to understand precisely what is at stake.
3.2. Envisioning an integrated post-2015 world

Although this book is concerned principally with international and
domestic legal responses to climate disasters, the current climate change
negotiations are occurring in concert with other international negoti-
ations underway as the world prepares for a post-2015 world. All of these
negotiations are highly relevant to the adoption of a Capability Approach
in the context of climate disasters, and are tending to convergence as the
Parties to various Conventions and agreements begin to understand the
serious challenges which climate change poses to the global order.
3.2.1. Climate change and disaster risk reduction

The Hyogo Framework has been the worlds principal disaster risk
reduction instrument. Negotiations have recently concluded on estab-
lishing the parameters for the post-2015 iteration of the Hyogo Frame-
work for Action 20052015: Building the Resilience of Nations and
Communities to Disasters (HFA).26
24 25
Schlosberg, see Note 18 at 456. Ibid. at 458.
26
Hyogo Framework for Action 20052015: Building the Resilience of Nations and Commu-
nities to Disaster (United Nations International Strategy for Disaster Reduction
(UNISDR): 2005) available at www.unisdr.org/les/1037_hyogoframeworkforactionengl
ish.pdf (accessed 12 January 2015).
envisioning an integrated post-2015 world 111
The Hyogo Framework for Action
The expected outcome of the HFA is the substantial reduction of dis-
aster losses, in lives and in the social, economic and environmental assets
of communities and countries, while the strategic goals are: the integra-
tion of disaster risk reduction into sustainable development policies
and planning; development and strengthening of institutions, mecha-
nisms and capacities to build resilience to hazards; and the systematic
incorporation of risk reduction approaches into the implementation of
emergency preparedness, response and recovery programs. The priorities
for action are:
1. Ensure that disaster risk reduction is a national and a local priority
with a strong institutional basis for implementation.
2. Identify, assess and monitor disaster risks and enhance early warning.
3. Use knowledge, innovation and education to build a culture of safety
and resilience at all levels.
4. Reduce the underlying risk factors.
5. Strengthen disaster preparedness for effective response at all levels.27
Cross-cutting issues include: a multi-hazard approach; gender perspec-
tives and cultural diversity; the participation of the community and
volunteers; and capacity building and technology transfer.28 The HFA
has been regarded as the most comprehensive framework for building
resilience to disasters.29 The relevance of the HFA in the context of
climate disasters is obvious.
Unsurprisingly, negotiations for the second iteration of the Hyogo
Framework (HFA2) have been closely tied up with the post-2015 climate
change negotiations. One of the earlier acknowledgements of the need to
integrate climate change responses and disaster risk reduction came from
the United Nations Integrated Strategy for Disaster Reductions
(UNISDR) with its 2011 Global Assessment Report on Disaster Risk
27
Ibid. Art. 14.
28
See Summary of Hyogo Framework for Action 20052015: Building the Resilience of
Nations and Communities to Disaster (United Nations International Strategy for Disaster
Reduction (UNISDR): 2005) available at www.unisdr.org/les/8720_summar
yHFP20052015.pdf (accessed 21 January 2015).
29
Riyanti Djalante et al., Building resilience to natural hazards in Indonesia: progress and
challenges in implementing the Hyogo Framework for Action (2012) 62 Natural
Hazards 779 at 781.
Reduction30 which indicated that disasters continue to destroy the lives
and livelihoods of millions of people. The Report stated that the July
2010 oods in Pakistan highlighted the close link between disaster risk
and poverty, while the 2011 oods in Australia were a stark reminder
that developed countries are also highly exposed to climate related
disasters. Hundreds of smaller climate disasters also caused extensive
damage in Benin, Brazil, Colombia, the Philippines and other countries
in 2011. It also acknowledged that mortality risk for all weather-related
hazards continues to be concentrated in countries with low GDP or weak
governance. Since 1970, populations at risk to exposure from tropical
cyclones have tripled, while the challenges inherent in reducing ood risk
were evident in the 2010 Pakistan oods which resulted in 1,700 fatalities.
Many disasters have occurred since the release of this report, including
catastrophic ooding and bushres in Australia, Typhoon Hayan in the
Philippines, Hurricane Sandy in the United States, and the 2011 oods in
Thailand, to name a few.
Subsequently, the United Nations General Assembly in February
2011 adopted a Resolution on an International Strategy for Disaster
Reduction.31 This followed a Report presented to the General Assembly
in December 2010 entitled Sustainable development: International Strat-
egy for Disaster Reduction.32 The General Assembly expressed its deep
concern at the number and scale of natural disasters and their increasing
impact in recent years, which have resulted in massive loss of life and
long-term negative social, economic and environmental consequences for
vulnerable societies throughout the world . . . in particular in developing
countries. Likewise it expressed its deep concern . . . at the increasing
30
Executive Summary available at www.preventionweb.net/english/hyogo/gar/2011/en/
home/executive.html (accessed 19 June 2011). The UNISDR secretariat produced this
report in collaboration with many global partners; see also Natural Hazard, Unnatural
Disasters: The Economics of Effective Prevention (the World Bank and the United Nations:
November 2010) available at www.gfdrr.org/sites/gfdrr/les/publication/NHUD-Report_
Full.pdf (accessed 12 January 2015); see also Chris B. Field et al. (eds.), Managing the
Risks of Extreme Events and Disasters to Advance Climate Change Adaptation: Special
report of the Intergovernmental Panel on Climate Change (SREX) (Cambridge: Cam-
bridge University Press, 2012).
31
A/RES/65/157, 25 February 2011; available at www.preventionweb.net/les/resolutions/
N1052196.pdf (accessed 12 January 2015).
32
Report: 7 December 2010; available at www.preventionweb.net/les/resolutions/
N1067878.pdf (accessed 12 January 2015); see also Sustainable development: protection
of global climate for present and future generations of humankind, A/65/436/Add.4,
2 December 2010 and Implementation of the International Strategy for Disaster Reduc-
tion: Report of the Secretary-General, A/65/388, 22 September 2010.
challenges facing the disaster response and preparedness capacity of
Member States and the United Nations system as a result of the combined
impacts of . . . the global economic and nancial crisis, climate change
and the food crisis.
The General Assembly recognised the clear relationship between sus-
tainable development, poverty eradication, climate change, disaster risk
reduction, disaster response and disaster recovery. It recognised also the
urgent need to . . . build resilience to natural disasters, while bearing
in mind the importance of addressing disaster risks related to changing
social, economic, environmental conditions and land use, and the impact
of hazards associated with geological events, weather, water, climate
variability and climate change, in sector development planning and pro-
grammes as well as in post-disaster situations. The Assembly identied
urban areas as particularly at risk given the concentration of population
and economic assets, while stressing that the impacts of natural disasters
are severely hampering efforts in achieving the internationally agreed
development goals, including the Millennium Development Goals.
The Resolution invites Governments and relevant international
organizations to integrate adaptation to climate change with relevant
disaster risk reduction measures.33 The Conference of the Parties to
the UNFCCC and the parties to the Kyoto Protocol to the UNFCCC
are encouraged to continue to address the adverse effects of climate
change, especially in developing countries that are particularly vulner-
able, in accordance with the provisions of the Convention, and also
encourages the Intergovernmental Panel on Climate Change to continue
to assess the adverse effects of climate change on the socio-economic and
natural disaster reduction systems of developing countries.34
The European Commissions The post-2015 Hyogo Framework

for Action: Managing risks to achieve resilience
In April 2014, the European Commission (EC) conrmed the import-
ance of the HFA for managing the risk of climate disasters with the
release of The post-2015 Hyogo Framework for Action: Managing risks to
achieve resilience.35 The Commission declares that to address alarming
trends in the increase of natural disasters, risk prevention and manage-
ment policies are essential to ensure sustainable development and
33 34
Resolution, see Note 31, Art. 6. Ibid., Art. 25.
35
Available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC
0216&from=EN (accessed 8 October 2014).
economic growth both within the EU and globally. There is a rate of
return in avoiding losses on every euro of between four to seven times
which conrms the economic benets of disaster risk management.
The EC points also to the Rio+20 Summit, the UNFCCC and extensive
international support for the resilience agenda to indicate that in all
economies risk reduction and disaster management should be a priority.
To date, most progress since the adoption of the HFA has been made for
Priority 1 ensuring that disaster risk reduction (DRR) is a national and
local priority with a strong institutional basis for implementation, and
Priority 5 capacity building to prepare and respond to disasters. There
has been considerably less progress on Priority 4, which aims to reduce
the underlying risk factors, as countries nd it difcult to integrate DRR
into public investment planning, spatial planning, and management and
social protection.
The EC believes that currently there is insufcient policy development
to keep pace with emerging challenges such as:
The impacts of climate change and continued environmental degrad-

ation, which will lead to more intense and frequent extreme weather
events such as oods, droughts and cyclones
Climate change, which is a threat multiplier for instability, conict and
state fragility leading to migration and displacement, weak governance
and geo-political instability, which in turn exacerbate vulnerability to
disasters
Population growth and rapid urbanisation, especially in developing
countries, which increase the vulnerability of natural resources and
economies
The concentration of populations and investments in disaster-prone
areas, which signicantly increases vulnerability and, by 2050, 6070
per cent of the worlds population will live in urban areas
The increased demand for water, energy and food, with almost 50 per
cent of the worlds population living in water stressed areas by 2030
Underestimating the signicance of small-scale, highly frequent and
localised events, including ash ooding, res and landslides, which all
undermine local development and GDP, and the
The impact of extreme weather events on global supply chains, as
witnessed by the Thai oods in 2011.36
36
Ibid. at 4.
With regard to the design of the post-2015 Hyogo Framework, the EC
has recently developed a number of important principles including the
need to: improve accountability, transparency and governance espe-
cially local and regional platforms for DRR as well as regional risk
assessments;37 develop and adopt targets and indicators to measure
progress; promote disaster proong in economic and nancial decisions
in the public and private sectors; address vulnerabilities especially by
factoring in state fragility and conict when considering DRR; integrate
DRM and climate change adaptation (CCA) into the sustainable devel-
opment agenda; achieve greater coordination between the HFA and the
UNFCCC, particularly with regard to National Adaptation Planning, the
Green Climate Fund, and the Warsaw International Mechanism on Loss
and Damage. Finally, the EC recommends that the relationship between
the United Nations Ofce for Disaster Risk Reduction (UNISDR), which
implements the HFA, and the UNFCCC, be claried.38
Sendai Framework for Disaster Risk Reduction 2015-2030

Subsequently, on 3 June 2015, the General Assembly adopted the Sendai
Framework for Disaster Risk Reduction 2015-2030 (SF).39 This replaces
and extends the Hyogo Framework for Action in signicant ways. The SF
acknowledges that during the currency of the HFA 2005-2015 the eco-
nomic 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 signicantly
impeding progress towards sustainable development. Overall, more than
1.5 billion people have been affected by disasters with over 700,000
human lives lost, over 1.4 million people being injured and approxi-
mately 23 million made homeless. As discussed elsewhere in this book,
women, children and people in vulnerable situations have been dispro-
portionately affected. Of great relevance to this books focus on the
Capability Approach, the evidence indicates that human and nancial
exposure in all countries has increased faster than vulnerability has
decreased, creating new risks and steadily increasing disaster-related
losses. The economic, social, health, cultural and environmental impacts
in the short, medium and long term, especially at the local and commu-
nity levels, are signicant. Communities, households and small and
37 38
Ibid. at 9. Ibid. at 12.
39
A/RES/69/283 available at http://www.preventionweb.net/les/resolutions/N1516716.pdf
(accessed 17 July 2015).
medium-sized enterprises are particularly impacted by recurring small-
scale and slow-onset disasters which constitute a high percentage of all
losses. All countries, but especially developing countries which face
disproportionately higher mortality and economic losses from disasters,
face increasing levels of possible hidden costs and challenges in order to
meet nancial and other obligations.40
Consistently with Chapter 4 of this book, the SF states that unplanned
and rapid urbanisation, poor land management, weak institutional
arrangements, non-risk-informed policies and a lack of regulation are
all underlying disaster risk drivers.41 With regard to the ex post disaster
phase, discussed in Chapter 5, the SF calls for the recovery and recon-
struction phase to be used to Build Back Better.42
The SF requires the following goal to be pursued:
Prevent new and reduce existing disaster risk through the implementa-
tion of integrated and inclusive economic, structural, legal, social, health,
cultural, educational, environmental, technological, political and institu-
tional measures that prevent and reduce hazard exposure and vulnerabil-
ity to disaster, increase preparedness for response and recovery, and thus
strengthen resilience.43
Seven global targets have been agreed to for achieving this goal which
will be measured at the global level and complemented by appropriate
indicators as well as national targets and indicators. The seven global
targets, which are to be achieved in accordance with Guiding prin-
ciples,44 are to:
(a) Substantially reduce global disaster mortality by 2030, aiming to
lower the average per 100,000 global mortality rate in the decade
20202030 compared to the period 20052015;
(b) Substantially reduce the number of affected people globally by 2030,
aiming to lower the average global gure per 100,000 in the decade
20202030 compared to the period 20052015;
(c) Reduce direct disaster economic loss in relation to global gross
domestic product (GDP) by 2030;
(d) Substantially reduce disaster damage to critical infrastructure and
disruption of basic services, including health and educational facil-
ities, by developing their resilience by 2030, as discussed in
Chapter 4;
40 41 42 43
Ibid. Art. 4. Ibid. Art. 6. Ibid. Art. 6. Ibid. Art. 18.
44
Ibid. Art. 19.
(e) Substantially increase the number of countries with national and
local disaster risk reduction strategies by 2020, as discussed in Chap-
ters 4 and 5;
(f ) Substantially enhance international cooperation on providing ade-
quate and sustainable support to developing countries to comple-
ment their national SF implementation actions by 2030;
(g) Substantially increase the availability of and access to multi-hazard
early warning systems and disaster risk information and assessments
to people by 2030, as discussed in Chapter 5.
Like the HFA, the SF 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.45
The SF identies the key activities which should be taken into consider-
ation at the global, regional and national levels when implementing each
Priority action. The key activities are too numerous to sensibly summar-
ise here. However, a number resonate strongly with various issues raised
in this book. For example, under Priority 1 the importance of collecting,
analysing, managing and using relevant data to better understand disas-
ter risk is emphasised, as is the need to develop, periodically update and
disseminate location-based disaster risk information and to evaluate,
record, share and account for disaster losses. This is discussed in Chap-
ter 5, particularly in the case of Vietnams legislation, where dialogue and
cooperation between scientic communities and policy makers is also
required.46 The need to incorporate disaster risk knowledge in civic
education at all levels is also required and this is referred to, in the
context of Mexico, in Chapter 5.
Under Priority action 2, the SF states that disaster risk governance,
prevention, mitigation, preparedness, response, recovery and rehabili-
tation are therefore necessary.47 Each of these is discussed in Chapters 4
and 5 and the EU Civil Protection Mechanism is used to illustrate an
integrated governance framework for disaster risk governance. Under
Priority action 3 the SF enjoins parties to promote mechanisms for
45 46 47
Ibid. Art. 20. Ibid. Art. 24. Ibid. Art. 26.
disaster risk transfer and insurance, risk sharing and retention and
nancial protection for both public and private investment to reduce
the nancial impact of disasters on governments and societies, in urban
and rural areas. The institutions for risk transfer including insurance are
critically analysed in Chapter 6. The need to mainstream disaster risk
assessments into land-use policy, including urban planning, new building
codes and ood mapping to identify areas that are safe for human
settlement48 are also discussed in Chapter 4.
Priority action 4, meanwhile, requires national and local governments
to invest in people-centred multi-hazard, multi-sectoral forecasting and
early warning systems, and disaster risk and emergency communications
mechanisms which need to be tailored to the social and cultural needs of
users, while also broadening release channels for natural disaster early
warning information.49 All of this is discussed in Chapter 5. Govern-
ments are also required to promote the resilience of new and existing
critical infrastructure, including water, transportation and telecommuni-
cations infrastructure,50 as discussed in Chapter 4. Public engagement in
disaster risk reduction is seen as crucial in the SF, including the partici-
pation of women,51 as discussed in Chapter 7. The important active and
inclusive role of the media in raising public awareness and understanding
of disasters in concert with government is also raised in Chapter 7.
The SF also mentions the importance of North-South cooperation,
complemented by South-South and triangular cooperation, in reducing
disaster risk and calls for further strengthening of cooperation in both
areas. 52 Although the SF is concerned that the efforts of developing
countries to offer South-South and triangular cooperation should not
reduce North-South cooperation from developed countries.53
Climate Justice and nancing of Disaster Risk Reduction in

the context of aid
Unfortunately, and with obvious consequences for Climate Justice, aid
nancing for disaster risk reduction has been a very low priority for the
international communitys aid programs over the past two decades. 54
48 49 50 51 52
Ibid. Art. 30. Ibid. Art. 33. Ibid. Ibid. Art. 36. Ibid. Art. 44.
53
Ibid. Art. 45.
54
Jan Kellett and Alice Caravani, Financing Disaster Risk Reduction: A 20 year story of
international aid (Global Facility for Disaster Risk Reduction and Recovery and Overseas
Development Institute: September 2013) www.odi.org/sites/odi.org.uk/les/odi-assets/
publications-opinion-les/8574.pdf (accessed 14 July 2014).
This compounds the difculties with regard to adaptation funding for
developing countries discussed in the previous chapter, and despite the
capacity of disasters to fundamentally undermine human Capabilities
and development. In this period, just over US$ 3 trillion in total was
disbursed in aid. Of this, US$ 106.7 billion was allocated to disasters,
and of that just a fraction, US$ 13.5 billion, was for DRR. By comparison,
US$ 23.3 billion was spent on reconstruction and rehabilitation and
US$ 69.9 billion on response. The US$ 13.5 billion spent on DRR accounts
for just 0.4 per cent of the total amount spent on international aid.
Essentially, for every US$ 100 spent on development aid, just 40 cents
have been invested in defending that aid from the impact of disasters.55
Even the United Nations spending on DRR is low compared with other
sectors where it has spent US$ 9.5 billion on peacekeeping, US$ 4.2
billion on food aid, and only US$ 1.1 billion on DRR.56 As well, the
volumes of DRR nancing are highly concentrated in wealthier develop-
ing countries with China and Indonesia, the two largest recipients,
receiving US$ 3 billion (22.3 per cent) between them. The next eight
countries account for another 36.2 per cent (US$ 4.9 billion) while the
following twenty countries account for US$ 3.5 billion, or 26.1 per cent of
the total. Essentially, the top thirty recipients of DRR funding have
received 84.6 per cent of total nancing over the past twenty years. The
remaining 118 countries that have received at least some nancing over
that period, share the remaining US$ 1.3 billion which works out at
US$ 11 million per country, or on average just $ 550,000 per year.57 Low-
income countries with middle to high levels of risk (often affected by
drought) have received negligible international nancing of DRR.58
The simple proposition is that countries that are low-income, with low
levels of government revenues but high levels of disaster risk, are those
that most require international assistance, regardless of the challenges of
undertaking DRM in these contexts. It is these countries where one
would hope to see sustained engagement from the international commu-
nity.59 While nancing of DRR goes to those countries ranked high on
the mortality risk index, its spread is considerably inequitable. There is
no general trend towards funding of countries with greater risk, but
rather there are mismatches across the whole landscape of mortality
risk. For example, Ecuador (scored 7 for risk), the second highest reci-
pient per capita, received nineteen times more funding than Afghanistan
55 56 57 58 59
Ibid. at 5. Ibid. at 8. Ibid. at 8. Ibid. at 25. Ibid. at 13.
(scored 8), 100 times more than Costa Rica and 600 times more than the
Democratic Republic of Congo (which 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 US$ 1.50 per capita over the whole
of the two decades, while four countries that also scored 6 and above
received more than US$ 10 per capita.60 The mortality risk index does
not include drought with the result that drought-affected countries have
received very little DRR nancing. The seeming inequity in nancing is
even more pronounced for these countries. As discussed later in this
chapter, in the Sahel and East Africa over the past twenty years more
than 105 million people have been affected by drought, yet nancing for
DRR in ve affected countries combined over this period came to US$
161.5 million.61 The poorest countries, those with the smallest annual
revenue, have received less than 20 per cent of total DRR nancing.62
In Chapter 4, the need to fully integrate climate change adaptation and
disaster risk reduction is canvassed extensively, while the combination of
inadequate developed country funding for both adaptation and disaster
risk reduction bolster the authors claim for the establishment of a fossil
fuel-funded Climate Disaster Response Fund. When the limitations of
government relief funding post-disaster, as well as the limitations of
insurance, are investigated in Chapters 5 and 6, the salience of such a
proposal should resonate even more strongly.
3.2.2. Sustainable development and climate change

In June 2012, the Rio+20 United Nations Conference on Sustainable
Development concluded with The Future We Want63 as the principal
outcome of the Conference. The Future We Want, as might be expected,
makes frequent reference to global climate change as a key disruptor of
sustainable development. The international community identies eradi-
cating poverty as the greatest global challenge facing the world today and
an indispensable requirement for sustainable development which must
be addressed as a matter of urgency.64 However, it acknowledges that
climate change is a cross-cutting and persistent crisis and expresses its
concern that the scale and gravity of the negative impacts of climate
60 61 62
Ibid. at 28 Ibid. at 29. Ibid. at 32.
63
A/CONF.216/L.1 available at www.uncsd2012.org/content/documents/727The%
20Future%20We%20Want%2019%20June%201230pm.pdf (accessed 12 January 2015).
64
Ibid. Art. 2.
change affect all countries and undermine the ability of all countries, in
particular, developing countries, to achieve sustainable development and
the Millennium Development Goals and threaten the viability and sur-
vival of nations.65 The Parties underscore that combating climate
change requires urgent and ambitious action66 and notes with grave
concern the signicant gap between the aggregate effect of mitigation
pledges by parties in terms of global annual emissions of greenhouse
gases by 2020 and aggregate emission pathways consistent with having a
likely chance of holding the increase in global average temperature below
2 C, or 1.5 C above pre-industrial levels.67 Furthermore, as the UNs
2014 Human Development Report (HDR) has noted, the historic Millen-
nium Declaration and the Millennium Development Compact are the
clearest expressions of global solidarity which need to be further nurtured
and interpreted in the context of vulnerability as a collective responsi-
bility to help others in need.68 It was argued in the 2011 and 2013 HDRs
that environmental disasters could not only slow human development
but even throw it into reverse. Climate change could become the single
biggest hindrance to the ambitions of the sustainable development goals
and the post-2015 development agendas.69
It should come as no surprise then that the recently drafted Sustain-
able Development Goals (SDGs) make frequent reference to climate
change. In 2015, the UN General Assembly Open Working Group on
Sustainable Development, provided for under The Future We Want,
released its Open Working Group Proposal for Sustainable Development
Goals.70 These Goals are now subsumed in Transforming our World By
2030: A New Agenda for Global Action.71 Poverty eradication, promot-
ing sustainable patterns of consumption and production, and protect-
ing and managing the natural resource base of economic and social
development are recognised as being intrinsic to sustainable develop-
ment. The principles of justice, equity and inclusion are to benet
children, the youth and future generations without discrimination of
65 66 67
Ibid. Art. 25. Ibid. Ibid. Art. 191.
68
Human Development Report 2014 (United Nations Development Programme: 2014)
available at http://hdr.undp.org/sites/default/les/hdr14-report-en-1.pdf (accessed
20 November 2014) at 29.
69
Ibid. at 45.
70
Available at https://sustainabledevelopment.un.org/content/documents/1579SDGs%
20Proposal.pdf (accessed 17 July 2015).
71
Available at http://www.way.org.my/les/SDGs_Declaration_Zero_Draft.pdf (accessed 1
September 2015).
any kind. The principle of common but differentiated responsibilities is
reafrmed as a guiding principle. The 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 Millenium 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 its 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 utilisation (SDG 14) while terrestrial
ecosystems should be protected, restored and sustainably utilised
(SDG 15). Forests must be sustainably managed, desertication com-
bated, 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.
In Chapter 4, the opportunities for climate-resilient pathways which
integrate climate change adaptation and sustainable development are
discussed in detail.
3.2.3. 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 develop-
ment agenda. This is because the landscape of humanitarian action has
changed considerably in the twenty-ve years since the UN General
Assembly adopted Resolution 46/182, Strengthening of the coordination
of humanitarian emergency assistance of the United Nations.72 Inter-
related global trends, such as climate variability and climate change,
demographic change, nancial 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 organisations
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 urbanisation, will put pressure on resources for humanitarian
assistance and require changes to its provision. For example, it is esti-
mated that over 3,000 NGOs were operating in the Haiti emergency. Yet,
during 200610, only 3 per cent of ofcial humanitarian aid was spent on
disaster prevention and preparedness. In response to the challenges to
the sector, humanitarian agencies have sought to improve their services
and maximise their impact on people in need. Despite the 2011 Inter-
Agency Standing Committees73 Transformative Agenda there is a need
to explore how to create a more global, effective and inclusive humani-
tarian system. The 2016 summit will focus on four key themes: humani-
tarian 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 conict.
3.2.4. Human rights and climate change

Furthermore, in 2012, the UN Ofce of the High Commissioner for
Human Rights (OHCHR) and the Centre for Social and Economic Rights
released a report entitled Who Will Be Accountable? Human Rights and
the Post-2015 Development Agenda.74 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
72
Available at www.un.org/documents/ga/res/46/a46r182.htm (accessed 12 December 2014).
73
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 non-UN humanitarian partners. General Assembly Resolution 48/57 afrmed its role
as the primary mechanism for inter-agency coordination of humanitarian assistance; see
www.humanitarianinfo.org/iasc/pageloader.aspx (accessed 12 December 2014).
74
Available at www.ohchr.org/documents/publications/whowillbeaccountable.pdf (accessed
12 December 2014).
rights need to be integrated with all development goals, targets and
indicators, and that poverty eradication is a human rights 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, marginalised 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.75 Since 2012,
the Open Working Group on Sustainable Development Goals has
embraced the need for integrating human rights.76 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.
3.2.5. Human security and climate change

In 2003, the Commission on Human Security released a report, co-
authored by Sadako Ogata and Amartya Sen, entitled Human Security
Now.77 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 ones own behalf.78
Relevantly for present purposes, the Report went on to say that the
achievement of human security goes beyond the Millenium Development
Goals and includes the need to protect: people embroiled in violent
conict; migrants; people in post-conict situations; people living with
economic insecurity and living in poverty; people suffering ill health; and
peoples rights to basic education and public information.79 As Gemenne
et al. state [i]f climate change affects human suffering . . . then this
human security dimension of climate change requires a long hard look
75
Ibid. at 4.
76
See www.ohchr.org/EN/Issues/MDG/Pages/News.aspx (accessed 12 December 2014).
77
Available at http://www.unocha.org/humansecurity/chs/nalreport/Outlines/outline.pdf
(accessed 23 February 2015).
78 79
Ibid. at 1. Ibid. at 2-3.
existing theories of climate justice 125
from scholars and practitioners alike.80 They go on to say that there is an
urgent need for the disciplines of economics, political science, inter-
national 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), conict and risks to livelihoods, communities and
cultures, related and new dimensions are emerging.81 These include the
potential for climate change to pose threats to national security, critical
infrastructure and other vulnerable key sectors, and to transform geopol-
itical landscapes.82 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 authors adoption of a Capability
Approach to Climate Justice and Disaster Law.
3.3. Existing theories of Climate Justice

Before delving any deeper into the authors contentions regarding Climate
Justice, existing theories of climate change justice must be revealed. These
tend to adopt corrective and distributive justice approaches for attribut-
ing responsibility to developed countries to take the lead on climate
change. However, a reading of these theories83 must acknowledge that
80
Francois Gemenne, Jon Barnett, W. Neil Adger and Geoffrey D. Dabelko Climate and
Security: evidence, emerging risks and a new agenda (2014) 123 Climate Change
1 available at http://link.springer.com/article/10.1007%2Fs10584-014-1074-7 (accessed
23 February 2015).
81 82
83
There are an extensive number of articles on this topic written both by philosophers and
environmental lawyers all of which have been reviewed by the author. Those written by
political philosophers include: Simon Caney, Cosmopolitan Justice, Responsibility and
Global Climate Change (2005) 18(4) Leiden Journal of International Law 747; Simon
Caney, Cosmopolitan Justice, Rights and Global Climate Change (2006) 19 Canadian
Journal of Law and Jurisprudence 255; W. Neil Adger et al. (eds.), Fairness in Adaptation
to Climate Change (Cambridge MA: The MIT Press, 2006); Sverker C. Jager and Goran
Duus-Otterstrom, Dual Climate Change Responsibility: on Moral Divergences between
Mitigation and Adaptation (2008) 17(4) Environmental Politics 576; David Miller,
Global Justice and Climate Change: How Should Responsibilities Be Distributed? pre-
sented at Tsinghua University, Beijing, 2425 March 2008; Edward A. Page, Distributing
the Burdens of Climate Change (2008) 17(4) Environmental Politics 556; Goran Duus-
Otterstom and Sverker C. Jager, Identifying Burdens of Coping with Climate Change: a
Typology of the Duties of Climate Justice (2012) 22(3) Global Environmental Change
they have evolved organically over a lengthy period of time. This is easily
explained given their emergence in the 1990s, coinciding with a time
when the IPCCs reports were far more hesitant than they are in the
201314 AR5. Also, no one could have known how emissions in the
BRICS countries (Brazil, Russia, India, China and South Africa) would
grow exponentially in fteen years, or the shape that multilateral climate
change negotiations would take. In a sense, then, Climate Justice theories
have had to constantly evolve to accommodate these changes. The
authors thesis is no different in the sense that it marks a point in time
when multilateral climate change negotiations maintain a tenuous grip
on hope of achieving Climate Justice, and climate disasters around the
world escalate.
Current Climate Justice theories might be conveniently grouped, albeit
telegraphically for present purposes, as: contribution to the problem
(polluter pays principle); an ability to pay principle; a hybrid principle;
a beneciary pays principle; and a greenhouse development rights
principle. Distinctions are sometimes made between a theory of justice
regarding obligations to mitigate ones own emissions and an obligation
to pay for adaptation.84
3.3.1. Contribution to the problem a corrective approach

The contribution to the problem approach to Climate Justice is a very
familiar approach given the incorporation of the polluter pays principle
into modern environmental law by way of Principle 16 in the Rio
Declaration.85 The idea is that countries should contribute costs, in
proportion to their share of global cumulative greenhouse emissions, to
746; Simon Caney, Climate Change and the Duties of the Advantaged (2010) 13(1)
Critical Review of International Social and Political Philosophy 203; Marco Grasso, An
ethical approach to Climate Adaptation Finance (2010) 20 Global Environmental Change
74; Paul G. Harris and Jonathan Symons, Justice in Adaptation to Climate Change:
Cosmopolitan Implications for International Institutions (2010) 19(4) Environmental
Politics 617. Those written by environmental lawyers include Daniel A. Farber, Adapting
to Climate Change: Who Should Pay? (2007) 23(1) Journal of Land Use 1; Rebecca
Tsosie, Indigenous People and Environmental Justice: The Impact of Climate Change
(2007) 78 University of Colorado Law Review 1625; Amy Sinden, Allocating the Costs of
the Climate Crisis: Efciency Versus Justice (2010) 85(2) Washington Law Review 293;
Daniel Bodansky, Introduction: Climate Change and Human Rights: Unpacking the
Issues (2010) 38(3) Georgia Journal of International and Comparative Law 511.
84
Duus-Otterstrom and Jager, see Note 83.
85
Distr.Gen. A/CONF.151/26 (Vol. I) 12 August 1992.
manage climate change. As the CBDR principle insists, developed coun-
tries have an ethical responsibility to reduce their emissions given their
ongoing and cumulative emissions.86 Yet the Climate Justice literature
demonstrates considerable machinations about this approach, particu-
larly about whether liability should be conditional on knowledge of the
harm. Different writers propose different dates on which this knowledge
might have arisen, including 1900,87 the mid-1980s,88 1985, ever since the
1990s89 or pre-1990,90 or 1992 with the establishment of the UNFCCC.
A counter argument is that is that it seems morally objectionable to burden
descendants with the responsibility for compensation when citizens and
policymakers, responsible for historic emissions, are now dead. On this
basis, it is suggested that a countrys historical emissions should either be
discounted or disregarded entirely.91 Or, should liability rather be strict,
that is, irrespective of knowledge of the harm?
Perhaps a high point in objections to the idea of historical responsi-
bility is encapsulated in Eric Posner and David Weisbachs book Climate
Change Justice.92 The authors, who undoubtedly have a genuine interest
in engaging with the Climate Justice project, argue that a corrective
justice vision of climate change justice, as expressed by the CBDR
principle, is: backward looking and focuses on historical emissions;93
punishes individuals; cannot be applied to nation states; and that nation
states will only do what makes them nancially better off by their lights.
Such an approach would force many people who have not acted wrong-
fully to provide a remedy to many people who have not been victimized.
Posner and Weisbach also assert that intentional, reckless or negligent
action is usually thought to be required for a corrective justice claim,94 so
it is worthwhile asking whether the United States can be blamed for
contributing to climate change. They conclude that the claim that US
policy has been negligent is far-fetched.95 How so, one wonders? As
discussed in Chapter 2, it is a legal fact that the reason the 1997 Kyoto
86
Page, see Note 83 at 557.
87
Ibid. at 560, citing E. Neumayer, In defence of historical responsibility for greenhouse gas
emissions (2000) 33(2) Ecological Economics 185, 189.
88 89 90
Miller, see Note 83 at 136. Caney (2010), see Note 83 at 208. Ibid.
91
Page, see Note 83 at 560.
92
E. A. Posner and D. Weisbach, Climate Change Justice (New Jersey: Princeton University
Press, 2010). For strong critiques of this work see Daniel A. Farber, Climate Justice
available at http://ssrn.com/abstract=1883186 (accessed 12 January 2015) and David
Schlosbergs review of the book in (2010) 1(3) Climate Law 454.
93 94 95
Protocol could only enter into force in 2005 is that, with the US refusing to
ratify the Protocol, the provisions of Article 25 were only satised upon
Russias ratication.96 The USs withdrawal also resulted, in large part, in
Australias refusal to ratify and in then President Bush and Prime Minister
Howard deliberately attempting over many years to undermine multilateral
negotiations on climate change. Also, as discussed in Chapter 1, the Bush
years, at the very least, resulted in years of inaction on climate change in the
US, and signicantly undermined multilateral negotiations and progress
on climate change at a critical time. In the authors view the USs culpability
and causation, required by Posner and Weisbach,97 are well-established.
Posner and Weisbach also reject a distributive approach to Climate
Justice based on the CBDR principle. They regard the principle as
resulting in a massive, and unjustied, distribution of wealth from rich
to poor countries. This is of deep concern for the fact that it, either
mistakenly or deliberately, reduces the tenets of the UNFCCC, ad absur-
dum, largely to economic ones, where rich countries should reject the
idea that they are obliged to reduce the likelihood of harm solely because
they are rich.98 They go on, curiously, to assert that reducing carbon
emissions is not a way to help todays poor and if costs are incurred to
reduce emissions, these resources are not available to help the poor of
today. Further, poor nations may be better off if the resources that would
be dedicated towards abatement are used in other ways, and in any case
the future poor will be less poor.99 They claim that development aid is
likely to be more effective than greenhouse gas restrictions as a method of
helping poor people in poor nations.100 Given everything that has been
discussed already in this book about the current and likely future impacts
of climate disasters, the author nds this claim astonishing. The author is
concerned that Posner and Weisbachs work, which by their own admis-
sion contains a limited view of morality,101 permits current generations
to give less scrutiny to their natural moral inclinations to require their
governments to take action on climate change, and permits them to pass
the buck to the next generation. The concern is that their arguments may
96
Article 25 provides that [t]his Protocol shall enter into force on the ninetieth day after the
date on which not less than 55 Parties to the Convention, incorporating Parties included
in Annex I which accounted in total for at least 55 per cent of the total carbon dioxide
emissions for 1990 of the Parties included in Annex I, have deposited their instruments of
ratication, acceptance, approval or accession; see Kyoto Protocol available at http://link.
springer.com/article/10.1007%2Fs10584-014-1074-7 (accessed 23 February 2015).
97 98 99
Posner and Weisbach, see Note 92 at 104. Ibid. at 79. Ibid. at 27.
100 101
subvert our understanding of what is at stake102 with the coming
climate catastrophe,103 at a time when citizens in all countries should
be maintaining a strong focus on the need to reduce emissions and plan
for a climate changed society.
3.3.2. Ability to pay principle a distributive approach

The ability to pay principle also leans on the CBDR principle to claim that
developed countries have greater wealth and capacity to cover the mitigation
and adaptation costs of climate change. This approach is indifferent as to
contribution to the problem and focuses only on who can rectify the harm,104
and indeed there may be remedially responsible states without causal respon-
sibility and states without remedial responsibility that are nevertheless caus-
ally responsible.105 It has been suggested that the ability to pay should not
focus on resources but rather on the excess capacity of developed countries
to pay up to the point where their citizens well-being is not compromised.106
Of course the question of ability to pay might be regarded rather differently
in 2015 following the recent global nancial crisis and the shift of geo-
economic power from North to South and West to East, as recognised by
the World Economic Forum in January 2011.107
3.3.3. A hybrid approach a corrective and distributive approach

A hybrid approach to justice108 suggests that Climate Justice might
combine elements of the contribution to the problem and the ability
to pay principles. A number of problems with the polluter pays principle
are noted, the principal of which is that to apply the principle it is
necessary to specify the harm and establish the causal link between the
emissions and the harm. From a practical perspective, it is often claimed
this cannot be done if the nature of the harm is uncertain or unpredict-
able, or the link between climate change and harm is uncertain.109
102
Ibid. at 45.
103
See J. Hansen, Storms of My Grandchildren: The Truth About the Coming Climate Catas-
trophe and Our Last Chance to Save Humanity (New York: Bloomsbury Press, 2009).
104
Caney (2010), see Note 83 at 213.
105 106
Duus-Otterstrom and Jager, see Note 83 at 581. Page, see Note 83 at 561.
107
See Lisa Schlein, World Economic Forum to Focus on Global Power Shifts, Voice of
America, 19 January 2011, www.voanews.com/english/news/economy-and-business/
World-Economic-Forum-to-Focus-on-Global-Power-Shifts-114218864.html (accessed
12 January 2015).
108 109
See Caney (2005) and (2010), see Note 83. Caney (2010), see Note 83 at 207.
Nevertheless, the polluter pays principle is not abandoned but modied
to include a Poverty Sensitive Polluter Pays Principle, that is, persons
should bear the burden of climate change they have caused but should
not be required to compromise on a decent standard of living.110 Also,
the ability to pay principle is adopted as a principle of justice to deal
with the Remainder, dened as harmful climate changes that arise from:
(a) the emissions of earlier generations, (b) non-human-induced climate
change, and (c) the (legitimate) emissions of the disadvantaged.111
However, the principle is modied by the History Sensitive Ability to
Pay Principle, so that those whose wealth came about in unjust ways
should have a greater responsibility to pay than those whose wealth did
not come about in unjust ways.112 This approach is cosmopolitan in that
it seeks to pierce the statist veil and place an obligation to pay on anyone
that possesses wealth, including individuals and corporations. It also
places obligations on the least advantaged as well as the most advantaged,
requiring the least advantaged to pursue a low carbon development path
if they can do so without great cost to themselves.113 According to the
hybrid approach the global poor will not have to bear the cost of
adaptation.114 The approach also requires that the nancial benets
agreed to in multilateral negotiations reach individuals and are not
simply distributed to states. The cosmopolitan implications of this
approach also resonate with Sens cosmopolitan view of global, rather
than state-based, justice. In many ways, the authors own proposal for the
establishment of a Climate Disaster Response Fund may also be regarded
as cosmopolitan in the sense that the statist veil of the UNFCCC
negotiations is pierced to place an obligation on fossil-fuel producers to
contribute to the Fund.
3.3.4. Beneciary pays principle

Yet another approach is to say that countries that have beneted the most
from emitting greenhouse gases historically bear the greatest responsi-
bility for Climate Justice. There is no attempt here to hold countries liable
for causing climate change, either strictly or conditionally, but they are
held strictly liable to pay for the negative externalities from which they
have beneted. This principle is different from ability to pay, as it is
concerned with how a countrys wealth arose; and is distinct from
110 111 112

Caney (2010), see Note 83 at 218. Ibid. at 213. Ibid.
113 114
contribution to the problem, as it is concerned with the effects, rather
than the causes, of climate change-inducing activities.115
3.3.5. Greenhouse development rights

This approach has two key tenets: the specication of an emergency
climate programme (ECP); and the incorporation of poverty reduction
and development goals within the global climate architecture. The ECP is
consistent with current multilateral negotiations in that it proposes to
limit global warming to below 2C above pre-industrial levels, as well as
extensive investment to help vulnerable populations cope with unavoid-
able climate damages. This means that: a global greenhouse gas emissions
budget will be xed to meet this goal and a share in the global budget will
be assigned to each country on the basis of a weighting of 40 per cent for
historical responsibility and 60 per cent based on an ability to pay; there
will be a detailed national emissions budget reecting these principles.
The poverty reduction and development goals allow countries to emit to
achieve a dignied level of sustainable development set at US$ 9,000 a
year (in terms of 2005 US$) for all individuals. The overall nancial
burden of each country to contribute towards funding climate policy
goals is calculated based on a Responsibility and Capacity Indicator.116 It
would seem that this approach to Climate Justice most closely aligns with
a Capability Approach given its concern with dignity, poverty reduction
and development goals.
3.3.6. Are existing Climate Justice theories still helpful?

It is worth reecting at this point whether existing Climate Justice
theories seem rather outdated in the post-2015 milieu. As noted earlier,
they have evolved over a lengthy period in step with the deliberations of the
international community on climate change. As Schlosberg has com-
mented, a weakness of existing theories is that they are focused largely
on mitigation rather than on the impacts of climate change on the most
vulnerable in order to assist with crafting justice approaches to adapta-
tion. If they do discuss adaptation, the focus is on an equitable distribu-
tion of the costs of adaptation rather than the specic vulnerabilities and
needs experienced by those at risk.117 The author expands upon this
115 116 117

Page, see Note 83 at 562. Ibid. at 571. Schlosberg, see Note 18 at 449.
critique by focusing squarely on extreme weather and slow onset climate
disasters and the new imperative of addressing the loss and damage
which they cause. It seems that the IPCCs AR5, as well as facts on the
ground, require the global community to analyse the new set of burden-
sharing questions that will then arise, including how different types of
burdens can apply to a different and wider set of agents.118 The author
argues that a fresh approach to Climate Justice is also warranted,
although it is true to say that the CBDR principle and questions of equity
and historical responsibility continue to inuence all aspects of the
multilateral negotiations under the UNFCCC. It is to the climate disas-
ters which demand a refreshed Climate Justice perspective that the
discussion now turns.
3.4. The characteristics of, and loss and damage caused by,
climate disasters
The IPCC denes climate disasters as:
Severe alterations in the normal functioning of a community or a society
due to hazardous physical events interacting with vulnerable social con-
ditions, 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.119
The IPCCs 2013 Working Group I Fifth Assessment Report,120 and the
2012 Special Report on Managing the Risks of Extreme Events and Disas-
ters to Advance Climate Change Adaptation (SREX)121 evaluate how
hazards, like natural climate variability and anthropogenic climate
change, inuence 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 emphasises that the
integration of disaster risk management and climate change adaptation
can increase resilience. Meanwhile, Working Group IIs Report entitled
Climate Change 2014: Impacts, Adaptation and Vulnerability122 evaluates
the risks, and potential benets, of climate change for human and natural
118 119
Duus-Otterstrom and Jager, see Note 83 at 752. SREX, see Note 30 at 33.
120
See www.ipcc-wg2.gov/AR5/ar5.html (accessed 20 February 2014).
121
SREX, see Note 30.
122
Summary for Policymakers available at http://ipcc-wg2.gov/AR5/images/uploads/
WG2AR5_SPM_FINAL.pdf (accessed 16 July 2014).
loss and damage caused by climate disasters 133
systems and how these can be managed through adaptation and mitiga-
tion. The focus on risk in this Report is new, and, like its SREX Report,
acknowledges that the risks of climate change lie at the intersection
between climate (both natural variability and anthropogenic climate
change), vulnerability and exposure.123
The IPCC states that attribution of changes in individual climate
events to anthropogenic forcing is complicated.124 However, there is
sufcient 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. 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. When trying to attribute losses to climate change,
losses over time must be controlled for exposure and vulnerability as
most studies attribute the losses to the exposure of people and assets in
high risk areas and to underlying societal trends, such as the demo-
graphic, economic, political and social factors which shape vulnerability
to impacts.125 Moreover, the attribution of disaster losses to climate
change or any other factors is subject to a number of limitations in the
studies done to date. These limitations include: the fact that most avail-
able data are for standardised economic sectors in developed countries;
most of the studies focus on cyclones yet for this type of climate disaster
condence in attribution to climate change is low due in part to decient
historical cyclone records. Finally, the processes used to normalise loss
data over time are different with most studies taking account of changes
in exposure but making limited use of measurements of vulnerability
trends.
The IPCC is careful to explain that there is not a one-to-one relation-
ship 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
123
The Report incorporates a wide literature review including scientic, technical and
socio-economic literature, while also covering a broader range of topics and sectors.
Human systems, adaptation and the ocean are given greater attention than in the past.
This Report builds not only on the IPCCs 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 Opportun-
ities for Adaptation.
124 125
SREX, see Note 30 at 368. Ibid.
and damage).126 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.127 However, the IPCC acknow-
ledges with high condence that economic losses from weather- and
climate-related disasters have increased, although with large spatial and
interannual variability.128
3.5. Understanding vulnerability, adaptive capacity, disaster risk

reduction and resilience to support Capabilities
Before analysing the intimate relationship between Climate Justice and
Climate Disaster Law, there are a number of important denitions that
are relevant to a Capability Approach and which need to be addressed,
including: vulnerability, exposure, capacity, adaptive capacity, coping and
resilience. This discussion is informed primarily by the 2012 SREX
Report, as well as the Human Development Report 2014: Sustaining
Human Progress: Reducing Vulnerabilities and Building Resilience (the
HDR).129 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 develop-
ment.130 It develops two basic propositions which are that: peoples
vulnerability is heavily inuenced by their Capabilities and social context;
and failures to protect people against vulnerability are mostly a conse-
quence of inadequate policies and poor or dysfunctional social insti-
tutions. The Report focuses on those particularly vulnerable to external
shocks, especially from persistent or systematic threats to human devel-
opment such as climate change. The two central theses of this Report are
that: sustainably enhancing and protecting individual choices and
126
Ibid.
127
Alberto Monti, Climate Change and Weather-related Disasters: What Role for Insur-
ance, Reinsurance and Financial Sectors? (2009) 15 Hastings West and Northwest
Journal of Environmental Law and Policy 151.
128 129 130
SREX, see Note 30 at 269. HDR, see Note 68. Ibid. at 15.
capability approach 135
Capabilities and societal competences are essential; and human develop-
ment strategies and policies must consciously aim to reduce vulnerability
and build resilience.131 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
Justice.
3.5.1. Vulnerability 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 con-
ditions. The HDR notes that systemic and perennial sources of vulner-
ability are especially experienced by some people like women, children,
adolescents and the elderly.132 These aspects of vulnerability all affect a
groups, or individuals, 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 globalisation 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 peoples Capabilities but is also a
question of how secure these achievements are, and whether conditions
are sufcient for sustained human development. Unless vulnerability is
explored and assessed, an account of human development progress is
incomplete.133 The HDR 2014 goes beyond traditional notions of vul-
nerability, which describe exposure to risks and risk management, to
emphasise the close links between reducing vulnerability and advancing
human development, as well as the prospect of disasters eroding peoples
Capabilities and choices. It also refers to life cycle vulnerability on the
ground that Capabilities accumulate over time and unless nurtured and
maintained they can stagnate and decline.134 The implication is that a
sustained enhancement of individuals and societies Capabilities is
131 132 133 134

Ibid. at 16. Ibid. at 1. Ibid. at 1. Ibid. at 3.
needed so that persistent vulnerabilities to climate disasters, which are
often structural and tied to life cycle vulnerabilities, can be reduced.135
To emphasise the need for climate change, disaster risk reduction,
sustainable development and human security measures to converge in
the post-2015 world, the HDR states that reducing poverty and vulner-
ability to falling into poverty must be a central objective of the post-2015
agenda.136 The more than 2.2 billion people, or 15 per cent of the
worlds population, who are living in extreme poverty and deprivation
are the most vulnerable. Three-quarters of the worlds 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 per cent of the global population, they represent
15 per cent of the worlds poor, with 30 per cent of them in extreme
rural poverty. More than 60 per cent of people aged over sixty live with a
disability resulting in severe challenges for full participation in soci-
ety.137 International migrants, who account for over 3 per cent of the
worlds population, have fewer rights than citizens and less access to
social protections and voting rights. Forced migration due to conict is
another source of vulnerability as the Syrian crisis dramatically shows,
138
including displacement caused by climate change, as discussed in this
chapter. The Minorities at Risk Project139 identies 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 vul-
nerabilities magnify the adverse impact on freedoms and functioning
quite substantially.140
Furthermore, during 200012, more than 200 million people mostly
in developing countries were exposed to natural disasters, such as oods
and droughts every year. The 2011 HDR has already highlighted the
fact that climate change could jeopardise poverty eradication given
the worlds poorest communities exposure and vulnerability to its
impacts.
Of paramount importance to the discussion in Chapter 6 about com-
pensating for the victims of climate disasters, the HDR notes that nearly
80 per cent of the global population lacks comprehensive social protec-
tion. Consequently, as discussed in Chapter 4, policy interventions to
135 136 137

Ibid. at 1. Ibid. at 2. See also IPCC, above Note 122. Ibid. at 4.
138 139
Ibid. at 76. See http://www.cidcm.umd.edu/mar/ (accessed 21 November 2014).
140
HDR, see Note 68 at 22.
capability approach 137
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.141
3.5.2. Adaptive capacity to climate disasters

As discussed in Chapter 2, there are a number of reasons why adaptation
was not given as much attention as mitigation in the early stages of
negotiations. A focus on adaptation was regarded as defeatist and a
distraction from building a case for stringent mitigation responses. How-
ever, vulnerability and adaptive capacity are now front and centre of
theorising about the challenges of climate change especially climate
disasters.142
How are vulnerability and capacity related? While the physical causes
of vulnerability, such as climate disasters, are an explicit aspect of
vulnerability, notions of sensitivity and adaptive capacity are integral to
the social context of climate change.143 Capacity refers to the combin-
ation of all the resources available to humanity to achieve established
goals. These include the conditions and characteristics that give society
access to and use of social, economic, psychological, cultural and natural
resources, as well as to the institutions of governance necessary to reduce
vulnerability and deal with the consequences of disaster. A relative,
rather than an absolute, lack of capacity may be regarded as one dimen-
sion of overall vulnerability, in that it increases vulnerability. The SREX
Report states that its denition of capacity extends the denition of
Capabilities referred to in Amartya Sens Capabilities Approach to
development, so conrming the relevance of the authors approach to
Climate Justice in the face of climate disasters.144
Adaptive capacity, on the other hand, is used in a specic context to
explain the capacity to adapt to the causes and impacts of climate change.
The notions of resilience and coping are fundamental to understanding
vulnerability to, and adaptive capacity to cope with, climate disasters.145
Coping means the use of available skills, resources and opportunities to
141
Ibid. at 4.
142
See E. Lisa F. Schipper, Conceptual History of Adaptation in the UNFCCC Process, in
E. Lisa F. Schipper and Ian Burton (eds.), The Earthscan Reader on Adaptation to
Climate Change (London: Earthscan, 2009) 362.
143 144 145
SREX, see Note 30 at 33. Ibid. Ibid.
address, manage and overcome adverse conditions, in the short to
medium term, with the aim of achieving basic functioning.
There is also a link between adaptation and the coping range. Within
its coping range, a community can survive and even thrive with signi-
cant natural hazards, especially where the historical distribution of
hazard intensity is well known and relatively stable. A communitys
coping range is partly determined by prior adaptation and, when adap-
tation efforts have matched its coping range with the range of hazards it
typically encounters, a community has the best chance to survive and
thrive. As climate change alters the occurrence of extreme events and the
vulnerability of humans is shaped by societal trends, adaptation is
required to adjust the coping range so as to maintain societal functioning
within an expected or acceptable range of risk.146
3.5.3. Resilience in the face of climate disasters

Meanwhile, resilience is the ability of a system and its component parts
to anticipate, absorb, accommodate or recover from the effects of a
potentially hazardous event in a timely and efcient manner. This
includes ensuring the preservation, restoration or improvement of a
systems essential basic structures and functions. While older concep-
tions of resilience refer to bouncing back, this is an increasingly insuf-
cient goal for climate disaster risk management. This is because of the
dynamic and often uncertain consequences of climate change (as well as
development trends such as urbanisation) for hazard and vulnerability
proles. Recent conceptions of resilience of social-ecological systems
focus more on process than outcomes, including the ability to self-
organise, learn and adapt over time.147 However, human resilience is
heavily dependent on, and inuenced by, the larger freedoms which we
experience and by our ability to respond and recover from adverse
events. Human development, meanwhile, removes the barriers that
impede a persons freedom to act and enables the disadvantaged and
excluded to realise their rights, express their concerns, be heard, and
become active agents in the process aspects of resilience. So much is
recognised here when discussing Sens ideas about procedural justice.
Meanwhile, the provision of and access to basic social services to reduce
structural vulnerability, like education, health care, water and sanitation,
146 147
the many faces of climate disasters 139
and public safety all enhance resilience. The importance of social pro-
tections like unemployment insurance, pensions and labour market
regulations cannot be overlooked.148 As the focus in this book on
Climate Disaster Law suggests, resilience at its core involves ensuring
the State, community and global institutions empower and protect
people.149
3.5.4. The Capability Approach and climate disasters

Invoking the Capability Approach to Climate Justice is especially justied
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 difcult. Children, the eld-
erly 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 afliation and phys-
ical disability, which may intersect with gender and age effects.150 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 signi-
cantly retard development efforts to build and enhance Capabilities.
3.6. The many faces of climate disasters

The IPCCs statements on the current and future vulnerabilities and expos-
ure of communities to the risks of extreme weather and slow onset climate
disasters have been conrmed in recent reports compiled by leading agen-
cies, including UN Habitat, the World Bank, the Food and Agriculture
Organisation (FAO), and the International Food Policy Research Institute
(IFPRI) to name a few. These reports include a focus on cities, food security,
drought, oods, bushres, desertication, and climate displaced people
including in Small Island Developing States (SIDS).
148 149 150

HDR, see Note 68 at 5. Ibid. at 4. Ibid. at 456.
3.6.1. Cities
The UN Habitats Global Report on Human Settlements 2011: Cities and
Climate Change,151 released in March 2011, sets out some of the possible
effects of climate change on the worlds 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 ve
times as many coastal residents as in 1990
In coastal North African cities, 625 million people could be exposed
to ooding from sea level rise if temperatures rise by 12C
By 2070, the top ten cities exposed to ooding 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 ood
plain with the nancial impact rising from US$ 3 trillion in 1999 to
US$ 38 trillion by this time
In Latin America by the 2020s, 1281 million residents could experi-
ence increased water stress and by the 2050s this could rise to 79178
million.152
As discussed later in Chapter 4, in its 2010 report Climate Risks and
Adaptation in Asian Coastal Megacities153 the World Bank has also
drawn attention to the vulnerability of Asias megacities. Many of them
are vulnerable to climate disasters as a result of extreme weather events,
sea-level rise and ooding, which intersect with vulnerability and expos-
ure.154 The risks to these cities include: reductions in GDP, death,
injury, ill-health, disrupted livelihoods and threats to critical infrastruc-
ture such as roads, bridges, schools, hospitals, and electricity and water
services. Yet adaptation in these cities poses enormous challenges espe-
cially given the inadequate funding for adaptation planning as discussed
in Chapter 2. Indeed few developing country cities have attempted to
incorporate climate change systematically into their decision-making
processes.155
151
Available at http://unhabitat.org/books/cities-and-climate-change-global-report-on-
human-settlements-2011/ (accessed 12 January 2015).
152
Ibid; 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 (accessed 12 January 2015).
153
Available at http://siteresources.worldbank.org/EASTASIAPACIFICEXT/Resources/
226300-1287600424406/coastal_megacities_fullreport.pdf (accessed 13 January 2014).
154 155
World Bank Report, see Note 153 at xi. Ibid.
3.6.2. Food insecurity
The IPCC WG II states that the impacts of climate change have been
more negative than positive (high condence) especially with regard to
wheat and maize (medium condence), 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 con-
dence).156 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 wildres157 and a grain embargo, and the unprecedented
oods in Pakistan. Food demand will inevitably increase as the world
population reaches 9 billion by 2050.158 As well, the redistribution of
catch potential of marine sheries from tropical countries to higher
latitudes has potential implications for food security (medium con-
dence). If temperatures rise beyond 4C or more and this is combined
with increased food demand there is a large risk of food insecurity.159
The Food and Agriculture Organisation (FAO),160 meanwhile, esti-
mates that, in 201214, 805 million people, or about one in nine of the
worlds population, were chronically undernourished with insufcient
food for an active and healthy life, and with the vast majority of them
living in developing regions.161 To meet the expected demand for food in
156
IPCC, see Note 122 at 6.
157
See also J. 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, 913 May 2011; here the authors report on mega-res which are
extraordinary conagrations unprecedented in the modern era for their deep and long-
lasting social, economic and environmental impacts. Global warming is identied as one
of the cumulative effects changing wildre protection in many countries; available at
http://foris.fao.org/static/pdf/fm/5thIWFConference2011.pdf (accessed 12 January
2015).
158 159
IPCC, see Note 122 at 1. Ibid. at 18.
160
The State of Food Insecurity in the World 2014 (Rome: FAO, 2014) available at http://
www.fao.org/3/a-i4030e.pdf (accessed 23 November 2014). See also Sepo Hachigonta
et al. (eds.) Southern African Agriculture and Climate Change: A Comprehensive Analysis
(International Food Policy Research Institute, 2013) available at www.ifpri.org/publica
tion/southern-african-agriculture-and-climate-change (accessed 24 November 2014);
West African Agriculture and Climate Change: A Comprehensive Analysis (International
Food Policy Research Institute, 2013) available at www.ifpri.org/publication/west-afri
can-agriculture-and-climate-change (accessed 24 November 2014); East African Agri-
culture and Climate Change available at www.ifpri.org/publication/east-african-agricul
ture-and-climate-change-0 (accessed 24 November 2014).
161
FAO, above Note 160 at 12.
2050 without signicant price increases, and in light of the growing
impacts of climate change, among others, the world needs to increase
food production by 70100 per cent.162 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.163
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 per cent for southern
Africa to 22 per cent aggregated across sub-Saharan Africa, with yield
losses for South Africa and Zimbabwe in excess of 30 per cent.164
Climatic stresses account for 62.5 per cent of all stresses on land
degradation in Africa, while seasonal temperatures in the Sahel have
already risen by 1.52.0C as the incidences of drought and erratic
rainfall have increased over the last forty years.165 As the HDR notes,
in the rst 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 neighbouring coun-
tries and others in the Sahel.166 Events in other countries exacerbated
the 2012 crisis in Niger including the inux of tens of thousands of
people eeing from conict in Mali.167
162
See J. Pretty et al., The top 100 questions of importance to the future of global
agriculture (2010) 8(4) International Journal of Agricultural Sustainability 219, avail-
able at www.julespretty.com/wp-content/uploads/2013/09/16.-100-Questions-IJAS-
2010-Pretty-et-al-2010.pdf (accessed 12 January 2015) at 220. See also Food Security
and Climate Change: Challenges to 2050 and Beyond (International Food Policy
Research Institute, 2010) available at www.ifpri.org/sites/default/les/publications/
ib66.pdf (accessed 15 January 2015). See also Climate Smart Agriculture: Policies,
Practices and Financing for Food Security, Adaptation and Mitigation (FAO, 2010)
available at www.fao.org/docrep/013/i1881e/i1881e00.htm (accessed 12 January 2015)
and CARE International Climate Change Brief Adaptation and Food Security available
at www.careclimatechange.org/les/CARE_docs/CARE_Food_Security_Brief_2011.pdf
(12 January 2015).
163
Pretty, see Note 162 at 2.
164
See IPCCs Fifth Assessment Report: Whats in it for Africa? Executive Summary available
at http://cdkn.org/wp-content/uploads/2014/04/J1731_CDKN_FifthAssesmentReport_
WEB.pdf (accessed 23 November 2014).
165 166 167
SREX, see Note 30 at 6. HDR, see Note 68 at 93. Ibid.
Meanwhile, in the drylands of the Horn of Africa,168 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.169 With climate change
and increased climatic variability, drought will remain a constant
hazard making it imperative that drought disaster risk reduction
(DRR) is integrated into all aspects of development and humanitarian
policy and programming.
From 2006 to 2010, the Syrian Arab Republic suffered an unpre-
cedented drought, devastating much of its rural society and contrib-
uting 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 Sahel170 takes a multifaceted
approach to humanitarian, development and security activities but
fails to directly address the underlying driver of climate change.171
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.172
168
See Catherine Fitzgibbon and Alexandra Crosskey, Disaster risk reduction manage-
ment in the drylands in the Horn of Africa (Brief prepared by a Technical Consor-
tium hosted by CGIAR in partnership with the FAO Investment Centre, 2013)
available at http://globalallianceforaction.com/docs/Disaster%20risk%20reduction%
20management.pdf (accessed 16 December 2014). See also Tobi Petrocelli et al.,
Climate Change and Peacebuilding in the Sahel (2013) 25 Peace Review: A Journal
of Social Justice 546.
169
Land-based Adaptation and Resilience: Powered by Nature (United Nations Convention
to Combat Desertication (UNCCD), 2014) available at www.unccd.int/Lists/SiteDocu
mentLibrary/Publications/Land_Based_Adaptation_ENG%20Sall_web.pdf (accessed
24 November 2014) at 3.
170
Available at http://unowa.unmissions.org/Default.aspx?tabid=869 (accessed 11 Decem-
ber 2014).
171 172
HDR, see Note 68 at 95. Ibid. at 127.
3.6.3. Floods and cyclones
In recent times, the world has witnessed a series of climate extremes that
are at the limits of modern human experience.173 In May 2011, the
Global Platform for Disaster Risk Reduction reported at its bi-annual
conference174 that disaster-related losses are increasing across all regions,
threatening the economies of low- and middle-income nations as well as
outpacing wealth gains across many of the worlds more afuent nations.
The data collected on climate disasters by insurers and reinsurers are a
credible source upon which to rely.175 Worldwide insured losses alone
from weather-related disasters have risen from US$ 5.1 billion per year
during 197089 to US$ 27 billion annually over the past two decades.
Current climate risks could cost emerging economies anywhere between
1 and 12 per cent of GDP by 2030 rising, under a high climate change
scenario, to 19 per cent.176 In the summer of 2010, China and Pakistan
experienced extraordinary rainfall resulting in 6,000 deaths. One-fth of
Pakistan was ooded, affecting 20 million people, inundating thousands
of schools and health centres and destroying 2.2 million hectares of
crops, making this the worst natural disaster in Pakistans history.177
Although this ood resulted in an estimated US$ 9.5 billion in economic
loss only US$ 100 million was insured as it occurred in very low income
areas of a low income country.178 Five million people were affected by
undernourishment and severe damage of crops led to higher food
prices.179 In China an estimated 230 million people were affected,
173
UNDP, see Note 1.
174
See www.unisdr.org/archive/19873 (accessed 12 January 2015).
175
Topics Geo Natural Catastrophes 2011 (Munich Re: 2011) at 47 available at www.
munichre.com/site/corporate/get/documents_E-1152749425/mr/assetpool.shared/Docu
ments/5_Touch/Natural%20Hazards/Publications/302-07225_en.pdf (accessed 12 Janu-
ary 2015).
176
Weathering climate change: Insurance solutions for more resilient communities (Swiss
Re: 2010); see http://europa.eu/epc/pdf/workshop/2-3_pub_climate_adaption_en.pdf
(accessed 12 January 2015) at 3.
177
Natural catastrophes and man-made disaster in 2010: a year of devastating and costly
events (Swiss Re: 2010) available at www.swissre.com/sigma/?year=2011#inline (accessed
12 January 2015) at 8.
178
Abhas Jha et al., Five Feet High and Rising: Cities and Flooding in the 21st Century
(World Bank, 2011) available at http://library1.nida.ac.th/worldbankf/fulltext/wps05648.
pdf (accessed 12 January 2015) at 10. See also Faith Ka Shun Chan et al., Flood Risk in
Asias Urban Mega-deltas: Drivers, Impacts and Response (2012) 3(1) Environment and
Urbanization ASIA 41.
179
Abhas Jha, see Note 178 at 14.
15 million of whom 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 NGOs
as clearly the private sector, acting alone, cannot provide adequate
security and insurance to low-income clients.180 Meanwhile, in Brazil a
ood triggered mudslides that killed more than 600 people, one of the
countrys deadliest natural disasters on record. 181
Lloyds calculated the total damage from the 2011 Thai ood as US$ 30
billion or 8.68 per cent of GDP.182 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 estimates the total loss to be US$ 45.7
billion, making this one of the top ve costliest natural disaster events in
modern history.183 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.184 In 2012, Hurricane Sandy devastated the Caribbean
and the East Coast of the United States and inicted widespread damage.
The US National Hurricane Center reports185 that due to its tremendous
size it drove a catastrophic storm surge186 into the New Jersey and New
York coastlines. The features of the hurricane included winds,187 extra-
ordinary size,188 storm surge (the highest of which was 12.65 feet (3.85
180
Swiss Re, see Note 177 at 8. See also Joanne Linnerooth-Bayer et al., Insurance,
Developing Countries and Climate Change (2009) 34 The Geneva Papers 381 at 383.
181
Abhas Jha, see Note 178 at 13.
182
See Lloyds Global Underinsurance Report (Lloyds, October 2012), available atwww.
lloyds.com/~/media/Files/News%20and%20Insight/360%20Risk%20Insight/Global_Un
derinsurance_Report_311012.pdf (accessed 12 January 2015).
183
2011 Thailand Floods Event Recap Report (AON Beneld: March 2012) available at
http://thoughtleadership.aonbeneld.com/Documents/20120314_impact_forecasting_
thailand_ood_event_recap.pdf (accessed 12 January 2015) at 3.
184
Severe weather in North America: Perils, Risk, Insurance (Munich Re: 2012) available at www.
munichre.com/touch/portal/en/touch_login/index.html (accessed 17 February 2015)
185
See Tropical Cyclone Report Hurricane Sandy (US National Hurricane Center: October
2012) available at www.nhc.noaa.gov/data/tcr/AL182012_Sandy.pdf (accessed 12 Janu-
ary 2015).
186
Storm surge is dened 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, ibid. at 8.
187 188
metres in New York)),189 and rainfall (up to 713 millimetres) which
along with storm surge, contributed to the ooding in New York and
New Jersey adjacent to the Hudson River.190 There were at least 147 direct
deaths recorded.191 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 2005.192Insured losses for
Hurricane Sandy amounted to US$ 20 billion.193
3.6.4. Extreme heat, bushres 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 mor-
tality,194 while water-borne illnesses and disease vectors have altered
their distribution (medium condence). As Farber has noted,195 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.196 In 2012, the record heat wave in
and around Moscow and extensive peat bog and forest res claimed
56,000 lives.197 One-third of Russias grain was lost, driving up food
prices worldwide. 198 Meanwhile, the 2009 bushres in Victoria, Austra-
lia, which coincided with an extreme heat wave, cost an estimated AS$ 4
billion, with many of the costs unable to be quantied.
The IPCC states that throughout the twentieth century, climate change
will result in increasing ill-health especially in low income developing
countries (high condence). There will be more injuries, diseases and
deaths from intense heat waves and res (very high condence); dimin-
ished food production resulting in under-nutrition in poor regions (high
condence); reduced labour productivity in vulnerable populations; and
increased risk from food- and water-borne diseases (very high condence)
189 190 191 192

193
Hortense Leon, Sandys Aftermath (2012) 73(6) Mortgage Banking 68 at 69.
194
IPCC, see Note 122 at 6.
195
Daniel A. Farber, Adapting to Climate Change: Who Should Pay? (2007) 23(1) Journal
of Land Use 1.
196
Anastasia Telesetsky, Insurance as a mitigation mechanism: managing international
greenhouse gas emissions through nationwide mandatory climate change catastrophe
insurance (2010) 27 Pace Environmental Law Review 691 at 692.
197 198
Swiss Re, see Note 177 at 1. Ibid. at 13.
and vector borne diseases (medium condence). Globally over the
twenty-rst century the negative health impacts of climate change are
likely to outweigh any positive impacts (high condence). Impacts can be
reduced through the provision of clean water and sanitation, essential
health care such as vaccination and child health services, improved
disaster preparedness and response and poverty alleviation (very high
condence).199
3.6.5. 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 condence). As climate change causes glaciers to
shrink at a global scale (high condence) downstream water resources are
affected (medium condence). Permafrost warming and thawing in high-
latitude regions is also occurring (high condence). The proportion of the
population currently experiencing water scarcity and affected by major
river oods will increase with the level of warming in the twenty-rst
century.200 Adaptive water management, including scenario planning,
learning-based approaches and exible and low-regret solutions, can
build resilience to uncertain hydrological changes and climate change
(limited evidence, high agreement).201
The 2014 Report of United Nations Convention to Combat Deserti-
cation (UNCCD)202 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 2050.203 The increased frequency and intensity of
droughts and ash oods are destroying the land the Earths 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 difcult to diffuse ethnic ten-
sions or reverse migration ows.204
199 200 201

IPCC, see Note 122 at 20. Ibid. at 14. Ibid.
202
Desertication: The Invisible Frontline (UNCCD: 2014) available at www.unccd.int/Lists/
SiteDocumentLibrary/Publications/Desertication_The%20invisible_frontline.pdf
(accessed 24 November 2014).
203 204
Ibid. at 6. Fitzgibbon and Crosskey, see Note 168 at 4.
3.6.6. Climate displaced persons
In recent times, the world has witnessed a series of climate extremes that
are at the limits of modern human experience.205 An extensive body of
literature on the migration of people away from areas impacted by
climate change has emerged over the past three decades.206 As discussed
earlier, these extremes are undercutting development efforts where many
affected communities are already poor and vulnerable.207 Indeed, they
threaten, both now and in the future, to see millions of people on the
move, whether internally or across international borders. 208 By 2020, an
estimated 60 million people could be on the move from the desertied209
areas of sub-Saharan Africa towards North Africa and Europe. By 2050,
200 million people may be permanently displaced environmental
migrants.210 Over three decades the terminology to accurately describe
such people has evolved, not necessarily sequentially, from environmen-
tal refugees, environmental migrants, environmental displaced per-
sons, and climate refugees. The author211 adopts the International
Organisation for Migrations (IOM) term climate displaced persons
(CDPs) which it denes 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.212
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:
205
See UNDP, see Note 1.
206
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.
207 208 209
UNDP, see Note 1 at 29. Ibid. at 13. UNCCD, see Note 202.
210
Fitzgibbon and Crosskey, see Note 168 at 7.
211
See R. Lyster, Protecting the Human Rights of Climate Displaced Persons: the promise
and limits of the United Nations Framework Convention on Climate Change, (forth-
coming) in Anna Grear and Louis Kotze (eds.), Research Handbook on Human Rights
and the Environment (United Kingdom: Edward Elgar Publishing, 2015).
212
Climate Change and Migration: Improving Methodologies to Estimate Flows (IOM: 2008)
available at www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/publish
ed_docs/serial_publications/MRS-33.pdf (accessed 11 February 2014) at 31.
Sudden onset disasters, such as ooding, windstorms or mudslides

caused by heavy rainfalls
Slow onset environmental degradation, by rising sea levels, increased
salinisation of groundwater and soil, long-term effects of recurrent
ooding, thawing of permafrost, as well as droughts and desertication
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, vio-
lence or even armed conict that may be triggered, at least partially, by
a decrease in essential resources due to climate change.213
Unique and durable legal solutions need to be crafted so as to ameliorate
the plight of current and future CDPs over various time spans.214
Unfortunately, all scholars215 engaged with the need to protect CDPs
concur that current international and domestic legal regimes216 are
213
W. Kalin, Conceptualizing Climate-Induced Displacement in Jane McAdam (ed.).
Climate Change and Displacement: Multidisciplinary Perspectives (Oxford: Hart Publish-
ing, 2010) 81 at 856. For another good summary of the categories of climate change
migration see Mostafa Mahmud Naser, Climate Change, Environmental Degradation,
and Migration: A Complex Nexus (2012) 36 William and Mary Environmental Law and
Policy Review 713.
214
Koko Warner et al. Changing Climate, Moving People: Framing Migration, Displace-
ment and Planned Relocation (UN University-Institute for Environmental and Human
Security (UNU-EHS): June 2013) at 26. For another good summary of the categories of
climate change migration see Naser, see Note 215 below.
215
See, for example, Lyster, see Note 211; W. Kalin Conceptualizing Climate-Induced
Displacement in McAdam (ed.), Climate Change and Displacement, 81 at 856; Naser,
Climate Change, Environmental Degradation, and Migration, at 713; Benoit Mayer,
The International Legal Challenges of Climate-Induced Migration: Proposal for an
International Legal Framework (2011) 22(3) Colorado Journal of International Environ-
mental Law and Policy 375; Julien Betaille et al., Draft Convention on the International
Status of Environmentally Displaced Persons (2010) 4 Revue Europeenne de Droit de
LEnvironnement 395; David Hodgkinson et al. The Hour When the Ship Comes In:
A Convention for Persons Displaced by Climate Change (2010) 36 Monash University
Law Review 69 at 96; Bonnie Docherty and Tyler Giannini, Confronting a Rising Tide:
A Proposal for a Convention on Climate Change Refugees (2009) 33 Harvard Environ-
mental Law Review 349; Marissa S. Knodel, Wet Feet Marching: Climate Justice and
Sustainable Development for Climate Displaced Nations in the South Pacic (2012) 14
Vermont Journal of Environmental Law 127; and Angela Williams, Turning the Tide:
Recognizing Climate Change Refugees in International Law (2008) 30(4) Law & Policy
502 at 520.
216
The various international instruments analysed include the 1951 Convention relating to
the Status of Refugees (the Geneva Convention) available at www.ohchr.org/EN/Profes
sionalInterest/Pages/StatusOfRefugees.aspx (accessed 15 February 2014); the United
woefully inadequate, especially as climate displaced persons do not satisfy
the denition of refugee under the 1951 United Nations Convention
relating to the Status of Refugees.217 While they might propose a number
of solutions218 to this dilemma, there is at this time absolutely no
resolution of the matter, with the result that climate displaced persons
enjoy no specic legal protections at international law.
States 1990 Immigration Act whereby a disaster-struck foreign country can be designated
for temporary protected status, see www.uscis.gov/humanitarian/temporary-protected-
status-deferred-enforced-departure/temporary-protected-status#What is TPS? (accessed
16 February 2014); Council Directive 2001/55/EU on minimum standards for giving
temporary protection in the event of a mass inux of displaced persons and on measures
promoting a balance of efforts between Member States in receiving such persons and
bearing the consequences thereof available at http://eur-lex.europa.eu/LexUriServ/LexUr
iServ.do?uri=OJ:L:2001:212:0012:0023:EN:PDF (accessed 16 February 2014); the 2009
African Union Convention for the Protection and Assistance of Internally Displaced
Persons in Africa available at http://au.int/en/content/african-union-convention-protec
tion-and-assistance-internally-displaced-persons-africa (accessed 11 February 2014); the
United Nations Human Rights Council (UNHRC) Resolution 7/23 on human rights and
climate change available at www2.ohchr.org/english/issues/climatechange/docs/Reso
lution_7_23.pdf (accessed 11 February 2014) and Resolution 10/4. Human rights and
climate change available at http://ap.ohchr.org/documents/E/HRC/resolutions/
A_HRC_RES_10_4.pdf (accessed 11 February 2014); the Guiding Principles on Internal
Displacement UN Doc.E/CN.4/1998/53/Add.2 (1998) available at www.unhcr.org/
43ce1cff2.html (accessed 11 December 2014); and the International Covenant on Eco-
nomic, Social and Cultural Rights available at www.ohchr.org/EN/ProfessionalInterest/
Pages/CESCR.aspx (accessed 11 December 2014).
217
Available at www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf (accessed 1 March
2015). This was conrmed 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 denition of a refugee; see
Ioane Teitiota v. The Chief Executive of the Ministry of Business Innovation and
Employment [2013] NZHC 3125.
218
For protection under the UNFCCC see Lyster, see Note 211; a Draft Convention on the
International Status of Environmentally Displaced Persons, see Betaille et al., see Note
215; a Convention for Persons Displaced by Climate Change see Hodgkinson et al., see
Note 215; a Protocol on Recognition, Protection and Resettlement of Climate Refugees
under the UNFCCC, see Knodel, see Note 215; a Climate Change Refugee Convention; see
Docherty and Giannini, see Note 215; a United Nations General Assembly (UNGA)
Resolution on the International Communitys Responsibility to Protect Climate Migrants,
see Mayer, see Note 215; a non-binding Memorandum of Understanding or Plan of
Action on climate change displacement particularly on a regional basis under the
UNFCCC, see Williams, see Note 215; a Protocol on Recognition, Protection and Resettle-
ment of Climate Refugees under the UNFCCC, see Knodel, see Note 215.
3.6.7. Species and ecosystems impacts
In response to climate change, many terrestrial, freshwater and marine
species have shifted their geographical ranges,219 seasonal activities,
migration patterns, abundances and interactions (high condence).
During the past millions of years far slower rates of climate change,
compared with anthropogenic climate change, have caused signicant
ecosystem shifts and species extinctions (high condence).220 As climate
change interacts with habitat modication, overexploitation, pollution
and invasive species, extinction risk is present in all Representative
Concentration Pathway (RCP) scenarios (high condence).221 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 con-
dence). For medium to high RCPs, ocean acidication poses substantial
risks to marine ecosystems, especially polar ecosystems and coral reefs
(medium to high condence).222
In Australia, for example, extreme heat waves have impacted signi-
cantly on plants and animals. Since 1994, 30,000 ying foxes have died in
heat waves along the east coast, while many of Australias iconic marsu-
pials are at risk. In 2009 and 2010, heat waves killed thousands of birds
while heat waves and extended droughts have resulted in the mass
mortality of koalas.223 Extreme heat has also resulted in coral bleaching
and intertidal and estuarine species have experienced mortality and
reduced reproduction.224 In the catastrophic Victorian bushres in
2009, it is estimated that more than 1 million animals, including more
than 4,500 sheep, 4,000 cattle and 200 horses died in the res. In the
absence of information about the value of the animals concerned, the
Victorian Royal Commission was unable to estimate the dollar loss for
these animals, especially the wildlife.225
219
For a diagrammatic representation of the maximum speeds at which species can move
across landscapes (based on observation and models), see IPCC WG II AR5, see Note
122, Figure SPM.5 at 15.
220 221 222
223
See The Critical Decade: Extreme Weather (Australian Climate Commission: 2013)
available at www.climatecouncil.org.au/uploads/94e1a6db30ac7520d3bbb421322b4dfb.
pdf (accessed 12 January 2015) at 16.
224
Ibid. at 17.
225
See 2009 Victorian Bushres Royal Commission Final Report Vol I The Fires and the Fire-
Related Deaths Appendix A available at www.royalcommission.vic.gov.au/Finaldocu
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 acidication 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.226 Writers, like Eric Posner and David Weisbach,227 who
claim that climate treaties like the Kyoto Protocol are focused on distrib-
uting wealth to the poor, fail to adequately acknowledge that their
objective is in fact the survival of the planet, all of its human and non-
human species and associated ecosystems.
3.7. Invoking a procedural approach to climate justice

The failure of the international community to respond adequately to an
issue which it itself regards as one of the greatest challenges of our time
must reect what Sen would regard as unreason. The climate disaster
scenarios articulated above make it clear that a focus on the actual lives of
those most likely to suffer from climate change, both now and in the
future, has many far-reaching implications for the nature and reach of
the idea of justice.228 A process of impartial practical reasoning about
climate change can evolve into appropriate responses in the interest of
global justice, and is regarded by the author as an aspect of procedural
climate change justice. The local preconceptions and prejudices, which
have so dominated the climate change debate, and were extensively
discussed in Chapter 1, surely cannot survive reasoned confrontation
with information not restricted by the same parochialism.229
As Sen has argued, unreason is mostly not the practice of doing without
reasoning altogether, but of relying on very primitive and very defective
reasoning.230 What matters most in the context of climate disasters is the
examination of what reasoning would demand in the pursuit of justice,231
and recognition that positional illusions can impose serious barriers to
broadening the informational basis of evaluations. This is one of the
ments/volume-1/PF/VBRC_Vol1_AppendixA_PF.pdf (accessed 12 December 2014)

at 343.
226
Decision X/33. Biodiversity and climate change, UNEP/CBD/COP/DEC/X/33, 29 Octo-
ber 2010.
227 228 229
Posner and Weisbach, see Note 92. Sen, see Note 5 at viii. Ibid. at vii.
230 231
Ibid. at xix. Ibid.
invoking a procedural approach to climate justice 153
reasons why perspectives about the threat of climate change from else-
where, including from far away, have to be systematically invoked.232
Furthermore, for Sen, if democracy is seen in terms of the possibility
and reach of public reasoning, the task of advancing, rather than perfect-
ing, both global democracy and global justice can be seen as eminently
understandable ideas that can plausibly inspire and inuence practical
actions across borders.233 Further, bringing reasoning to the world
becomes the enterprise of morality rather than metaphysics and the work
as well as the hope of humanity.234 This view of democracy can also have
an impact on the pursuit of it at the global level not just within the
nation state because public reasoning can be used for advancing both
global democracy and global justice.235
Surely, as discussed in Chapter 2, the failure of nation states to commit
to signicant emissions reductions must be at least partly due to the
neglect of the interests and perspectives of those who are not parties to
the social contract of a polity, but who bear some of the consequences of
the decisions taken in the particular polity.236 As Sen recognises, liber-
ation from positional sequestering, for example on climate change, may
not always be easy but it is a challenge that has to be met for the sake of
ethical, political and legal thinking.237 Moreover, there is a long history of
attempts to go beyond the positional connement of our moral concerns
to the proximate neighbourhood,238 and a deep fragility in the intellec-
tual basis of thinking of people in terms of xed communities of neigh-
bours.239 An understanding of justice, particularly in the contemporary
world, must acknowledge that the neighbourhood is constructed by our
relations with distant people on both spatial and temporal scales. In
truth, with climate change [t]here are few non-neighbours left in the
world today.240
If, as the author contends, impartial and practical reasoning are
essential for a global justice approach to climate disasters, they have been
seriously undermined by a vociferous campaign being waged by climate
sceptics, funded largely by the fossil fuel lobby,241 and other vested
interests including those of politicians themselves, as discussed in Chap-
ter 1. The essential elements of what would amount to an impartial and
232 233 234 235

Ibid. at 169. Ibid. at xiii. Ibid. at xvii. Ibid. at xiii.
236 237 238 239
240
Ibid. at 173.
241
Ibid., although the author has adapted more general comments about science to climate
science.
practical reasoning process are contained in Chapter 7, which concludes
this book.
3.7.1. The role of the media in undermining a procedural approach

to Climate Justice
Central to Sens advancement of public reasoning in the pursuit of justice
is a free and independent press. The reasons for this, articulated by Sen,
are: the direct contribution of free speech to the quality of our lives; the
informational role in disseminating knowledge for critical public scru-
tiny; the protective function in giving voice to the marginalised so as to
contribute to human security; the formation of values; and facilitating
public reasoning in general.242 While Sen reiterates the normative values
underpinning a free press, the media has at times been complicit in the
project to misinform the public on climate science and to give a platform
for climate sceptics, as discussed in Chapter 7.
3.8. What are the next steps?

To close the gap between the parallel realities that seem to coexist
between the urgent need to take action on climate change and the
inadequate international and domestic responses, the imperatives of the
national interest need to be reframed. The voices of vested interests and
unreason need to be quietened while the perspectives of those from
elsewhere, including from far away on a spatial and temporal scale, are
systematically invoked. As this chapter has shown, in this globalised and
interconnected world, the impacts on developing countries now and in
the future, including on human and non-human freedoms and function-
ing, cannot be ignored. However, the focus should not fall solely on
developing countries, as developed economies are, and will continue to
be, seriously affected, not least by threats to their infrastructure, food
security and the spectre of forced climate change migration. All of the
latest information on climate change that is currently available to citizens
around the world must be considered so that world leaders are given the
imprimatur to enter into meaningful negotiations at subsequent meetings
of the Conference of the Parties to the UNFCCC. The media needs to
adopt a radically different ethical approach to reporting accurately to the
242
Ibid. at 3357.
what are the next steps? 155
reasoning public. A vision for opening up spaces to engage in impartial
public reasoning will be elaborated upon in the nal chapter of this book-
Chapter 7.
In the next three chapters, the discussion moves to the discrete stages
of climate disasters which require the urgent and continuing attention of
the multilateral negotiations under the UNFCCC and of all domestic
governments around the world. These include: prevention (Chapter 4);
response, recovery and rebuilding (Chapter 5); and compensation
(Chapter 6). It is here that the need for the establishment and imple-
mentation of a comprehensive body of Climate Disaster Law comes
to the fore, as required under the Sendai Framework for Disaster Risk
Reduction.

Towards A Vision For Climate Justice in A Post2015 World

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Towards A Vision For Climate Justice in A Post2015 World

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3

Towards a vision for Climate Justice in a

The current multilateral climate change negotiations continue to insist

3.1. A Capabilities-inspired Climate Justice approach to Disaster Law

3.1.1. The Capability Approach

3.2. Envisioning an integrated post-2015 world

3.2.1. Climate change and disaster risk reduction

The European Commissions The post-2015 Hyogo Framework

The impacts of climate change and continued environmental degrad-

Sendai Framework for Disaster Risk Reduction 2015-2030

Priority 1: Understanding disaster risk.

Climate Justice and nancing of Disaster Risk Reduction in

3.2.2. Sustainable development and climate change

3.2.3. Humanitarian action and climate change

3.2.4. Human rights and climate change

3.2.5. Human security and climate change

3.3. Existing theories of Climate Justice

3.3.1. Contribution to the problem a corrective approach

3.3.2. Ability to pay principle a distributive approach

3.3.3. A hybrid approach a corrective and distributive approach

3.3.4. Beneciary pays principle

110 111 112

3.3.5. Greenhouse development rights

3.3.6. Are existing Climate Justice theories still helpful?

115 116 117

3.5. Understanding vulnerability, adaptive capacity, disaster risk

3.5.1. Vulnerability to climate disasters

131 132 133 134

135 136 137

3.5.2. Adaptive capacity to climate disasters

3.5.3. Resilience in the face of climate disasters

3.5.4. The Capability Approach and climate disasters

3.6. The many faces of climate disasters

148 149 150

By 2050, climate change will displace as many as 200 million people

3.6.4. Extreme heat, bushres and other health impacts

189 190 191 192

3.6.5. Water scarcity

199 200 201

Walter Kalin, the UN Special Rapporteur on the Human Rights of

Sudden onset disasters, such as ooding, windstorms or mudslides

3.7. Invoking a procedural approach to climate justice

ments/volume-1/PF/VBRC_Vol1_AppendixA_PF.pdf (accessed 12 December 2014)

232 233 234 235

3.7.1. The role of the media in undermining a procedural approach

3.8. What are the next steps?

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