Sergio Marchisio – Gianfranco Gabriele Nucera
Adaptation Measures to the Adverse Effects of Climate Change
Adaptation to the adverse effects of climate change is one of the main strategies to tackle global warming, together with mitigation. While mitigation aims at addressing the causes of climate change, as to say reducing the emission of greenhouse gases (GHG) into the atmosphere, adaptation refers to actions aimed at preventing or minimising the damage, as well as taking advantage of opportunities that may arise from climate change.
Measures to make adaptation to climate change effective are of different nature and impact. According to the Intergovernmental Panel on Climate Change (IPCC), these measures can be categorised into three types: 1) Structural and physical; 2) Social; 3) Institutional.[1]
The first category features structural and physical measures including: a) engineering interventions, such as sea walls and coastal protection structures, water storage, improved drainage, beach nourishment, flood and cyclone shelters, floating houses, adjusting power plants; b) use of traditional or innovative technologies like new crop and animal varieties, genetic techniques, efficient irrigation systems, water saving technologies, conservation agriculture, food storage, hazard mapping and monitoring, mechanical and passive cooling, renewable energy; c) ecosystem-based measures, including ecological restoration, increasing of biodiversity, afforestation and reforestation, green infrastructure, controlling overfishing, ecological corridors, ex situ conservation, community-based natural resources management, adaptive land use management; d) services, such as social safety nets, food banks and distribution of food surplus, essential services for water, sanitation and public health.
Social adaptation actions are typically associated with : a) educational measures, as those dedicated to raising awareness, sharing local and traditional knowledge, participatory action research and social learning, learning platforms, international conferences and research networks, communication through media; b) informational measures like hazard and vulnerability mapping, early warning and response systems; systematic monitoring and remote sensing, climate forecasting, community-based adaptation plans and participatory scenario development; c) behavioural measures such as those referring to accommodation, household preparation and evacuation planning, retreat and migration, soil and water conservation, livelihood diversification, changing livestock, aquaculture and cropping practices, silvicultural options.
Lastly, the institutional component of adaptation refers to: a) economic measures like financial incentives, insurance, disaster-related bonds and funds, revolving funds, water tariffs, microfinance mechanisms; b) legal measures, such as rules aimed at managing land, building sustainable standards, regulating water management, supporting disaster risk reduction, encouraging insurance purchasing, defining property rights and land tenure security, protecting specific natural areas, defining fishing quotas, regulating patentability and technology transfer; c) policies, programs and plans on adaptation, disaster planning and preparedness, planned relocation, mainstreaming climate change into different sectoral or general policies, urban upgrading programs, sustainable, adaptive and ecosystem-based management.
In essence, adaptation can be understood as the process of adjusting to the current and future effects of climate change, which is universally promoted through international cooperation entrenched in the climate conventions.
Adaptation and the International Climate Conventions
Article 4 of the 1992 United Nations Framework Convention on Climate Change (UNFCCC) commits States to cooperate in preparing for adaptation to the impacts of climate change. To this end, they shall develop and elaborate appropriate and integrated plans for coastal zone management, water resources and agriculture, and for the protection and rehabilitation of areas affected by drought and desertification, as well as floods. This commitment is complemented by the obligation of developed countries to assist developing States that are particularly vulnerable to the adverse effects of climate change in meeting the costs of adaptation when facing its consequences.[2]
Article 10 of the 1997 Kyoto Protocol provides that all Parties shall formulate, implement, publish, and regularly update national and, where appropriate, regional programmes containing measures to facilitate adequate adaptation to climate change. Furthermore, Article 12 requires the Conference of the Parties to the Protocol (CMP) to ensure that a share of the proceeds from certified project activities is used to assist developing countries in meeting the costs of adaptation.[3]
The turning point for the enhancement of adaptation actions is the 2015 Paris Agreement, which explicitly recognizes adaptation as a complementary measure to mitigation to achieve the main objective of containing the rise in the Earth’s temperature well below 2° C, possibly within 1.5° C.[4]
According to Article 7, each State must plan and implement adaptation actions, including the development or enhancement of relevant plans, policies and/or contributions. The planning phase should include the assessment of climate change impacts and vulnerability with the aim of formulating nationally determined prioritized actions, whereas the implementing phase should include a monitoring activity and a sustainable approach to enhance the resilience of socio-ecological systems.
Moreover, States must submit and regularly update a communication on adaptation, which may contain priorities, implementation and support needs, plans and actions. Such information can be the object of a specific communication, dedicated to adaptation, or be listed in other documents, such as the declarations on Nationally Determined Contribution (NDC) that also refer to mitigation measures. The communication on adaptation shall be public and recorded in a register maintained by the Secretariat.
The provisions of the three conventions are implemented and complemented through decisions adopted by the Conference of the Parties (COP) of the treaties. Such secondary sources detail the above-mentioned obligations and set up institutional bodies to support States in reaching their goals.
In 2001, the 7th meeting of the COP of the UNFCCC adopted a work programme to support least developed countries (LDC) in facing adaptation challenges. The LDC work programme includes the adoption of national adaptation programmes of action (NAPA) by such countries, to identify priority activities that respond to their urgent adaptation needs, and the establishment of a dedicated Fund (LDCF) and Expert Group (LEG), to respectively support the programme’s implementation and provide technical guidance and advice. In the same year, the Conference of the Parties to the Kyoto Protocol (CMP), based on Article 12 of the Protocol, has created the Adaptation Fund, financed with a share of proceeds from the clean development mechanism (CDM) project activities.
Almost ten years later, COP 16 established the so-called Cancun Adaptation Framework, by enabling Parties to formulate and implement national adaptation plans (NAP) as a way to identify needs and develop strategies to address those needs. In addition, the creation of the Adaptation Committee, under the UNFCCC, helps to address adaptation issues in a coherent manner by providing technical support and guidance to the Parties, sharing relevant information, knowledge, experience and good practices, promoting synergy and strengthening engagement, providing information and recommendations for consideration by the COP, and considering information communicated by Parties on their monitoring and review of adaptation actions.
Finally, the Conference of the Parties to the Paris Agreement (CMA) adopted several decisions to define criteria and procedures for implementing Article 7 of the Agreement. In this sense, between 2017 and 2021, the public registry has been set up, and criteria of consistency and transparency on commitments, common indicators, and review mechanisms have also been defined.
The Role of Adaptation Measures in the Human Rights-Based Approach to Climate Obligations
A meaningful adaptation to the negative effects of climate change can only be reached through the adoption of specific measures. The more these measures are context-sensitive, the more they could be effective in averting the effects of climate change. Obligations and criteria defined by treaties and secondary sources adequately address adaptation to climate change but do not mention specific measures to be adopted. Such a decision clearly remains under the discretion of each State, which should choose the measures to be adopted taking into account several factors.
On these issues, a fundamental role has been assigned to scientific outputs, particularly the reports delivered by the IPCC. These reports raise States’ awareness of the risks associated with climate change, defining quantitative and qualitative criteria. In addition, these reports accurately identify the causal link between human actions and climate change as well as different scenarios showing to what extent implementing mitigation and adaptation measures would be necessary to achieve the goal of containing the rise of Earth’s temperature within 2°C.
Besides the objective scientific element, a subjective factor concerns the situation of the State and its capacity to address climate risks. In the case of developing countries, LDCs or small island developing States (SIDS), adaptation measures could assume a greater weight in the climate action. Conversely, an industrialized state, with remarkable financial capacity, will have mitigation and financing measures, as well as the support of adaptation measures in vulnerable countries, as primary targets. Linked to this issue, a paramount role is also played by the technological capacity of the State, according to the principle of the best available technology and a cost-benefit analysis associated with the adoption of both mitigation and adaptation measures.
Finally, and most importantly, a comprehensive approach to adaptation measures shall consider people and their needs as well as the full enjoyment of their fundamental rights. The above-described obligation must be systematically integrated with the rules on the protection and promotion of human rights. In this sense, valuing the role of agency necessary implies adopting a people-centred approach to climate action. This course of action is now widely supported by doctrine and practice, as the essential link between human rights and climate change has been widely explored and recognized both within the United Nations, international human rights tribunals, and in the Preamble of the Paris Agreement.[5]
The mentioned comprehensive approach based on human rights is what today appears to be functional to the judicial enforcement of international obligations on climate change. The case-law is growing and involve both national and international tribunals as well as UN treaty-bodies.[6] In the consistent judicial practice, reference is made to the obligations of states to adopt the necessary measures to ensure the exercise of fundamental rights (particularly the right to life, prohibition of refoulement, right to private and family life), towards individuals under their jurisdiction.
However, the current debate failed to address the role of adaptation measures in climate litigation involving human rights, focusing almost exclusively on the adoption of mitigation measures as the central element to evaluate the standard of diligence of the State. To this end, a new perspective on the human rights-based approach to climate obligation can be drawn from the foreseeing adaptation measures to emphasize that the standard of conduct on the implementation of climate obligation must take into account not only the international commitments on mitigation, but also the obligations related to the planning and implementation of adaptation measures.
A Closer Look on Adaptation Measures in the Case-Law
Among the growing case-law, it is useful to refer to some decisions which highlight the linkages between adaptation measures and human rights. In particular, the analysis will focus on the cases Urgenda Foundation v. The Netherlands, Teitiota v. New Zealand, Neubauer et al. v. Germany. In those cases, diligence is evaluated according to the obligations to adopt measures to ensure the exercise of the concerned right.
In the case Urgenda Foundation v. The Netherlands, the Hague Court of Appeal recognised the possibility of using adaptation measures “to counter the consequences of climate change, including raising dikes to protect low-lying areas”[7] as a preventive measure of a possible violation of Articles 2 (right to life) and 8 (right to private and family life) of the European Convention on Human Rights (ECHR). In the subsequent decision, the Dutch Supreme Court specifies that the obligation to adopt necessary preventive measures is related to the discretion of the State in the choice of the specific measure, according to the circumstances. In this sense, such measures “may encompass both mitigation measures (measures to prevent the threat from materialising) or adaptation measures (measures to lessen or soften the impact of that materialisation)”.[8]
The views of the Human Rights Committee in the case Teitiota v. New Zealand underlined the link between climate change and the right to life, already identified by the Committee’s General Comment No. 36. In assessing whether the expulsion of the author of the communication to his country of origin represented a real risk to his life, the Committee highlighted that “without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under Articles 6 or 7 of the International Covenant on Civil and Political Rights (ICCPR), thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized”.[9] However, the Committee did not apply this hypothesis and noted that “the Republic of Kiribati was taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms”,[10] and that “the timeframe of 10 to 15 years […] could allow for intervening acts by the Republic of Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population”.[11] Precisely because of the adaptation measures already put in place by the State and those that it could have put in place in the next 10-15 years, the Committee could not detect a violation of the right to life of the author of the communication.
In the case Neubauer et al. v. Germany, the German Federal Constitutional Court recognised that the risks posed by climate change give rise to a duty to protect, to be achieved by adopting measures aimed at halting anthropogenic global warming and alleviating the consequences of climate change. Although not directly intended to limit climate change, adaptation is fundamental to alleviate its negative effects on people and maintain those risks on acceptable levels. The Court’s reasoning highlighted the centrality of adaptation in assessing any violation of the right to life, so “whether or not the measures are sufficient to protect fundamental rights could only be evaluated by comparing the climate action measures taken within the possible adaptation options”.[12]
Conclusion
The mentioned case-law clearly acknowledges the serious consequences on human rights caused by the negative effects of climate change, both with reference to sudden-onset and slow-onset events. The judicial bodies indicate that the standard of protection required by fundamental rights is linked to two elements, the complementarity of which is fundamental to rightfully assess the conduct of the State: a combination of mitigation and adaptation measures, to be evaluated taking into careful consideration the indications arising from the work of the international scientific community.
From a legal perspective, the recognition of the complementarity of adaptation measures with respect to mitigation policies is essential to better define the standard of conduct foreseen by the due diligence obligation to adopt necessary actions while ensuring human rights are not violated. In fact, the use of mitigation measures alone would be unsuitable for the purpose, as they would not be sufficient to adequately contain the risks of violation of fundamental rights. This is why it is vital to advocate for a better balance between mitigation and adaptation interventions.
Such balance is to be found on a case-by-case basis, depending on each State’s specific conditions, including: vulnerability and resilience to the effects of climate change, economic and technological capacity, as well as historical GHG emissions, in line with the principle of common but differentiated responsibility and of respective national capabilities and circumstances.
This combined perspective clearly constitutes an indispensable element for determining the exact scope of the international obligations relating to climate change in their connection with the States’ obligations on the protection of fundamental human rights.
Selected Bibliography
- Atapattu, Human Rights Approaches to Climate Change, Routledge, London-New York, 2015.
- Boyle, Climate Change, the Paris Agreement and Human Rights, in International and Comparative Law Quarterly, 2018, pp. 759-777
- Dawson, R. Laut, Humans on the Move. Integrating an Adaptive Approach with a Rights-Based Approach to Climate Change Mobility, Brill, Leiden-Boston, 2022.
- H. Knox, The Paris Agreement as a Human Rights Treaty, in D. Akande, J. Kuosmanen, H. McDermott, D. Roser (eds.), Human Rights and 21st Century Challenges: Poverty, Conflict, and the Environment, Oxford University Press, Oxford, 2020, pp. 323-347.
- Marchisio, International Law, Giappichelli, Torino, 2021.
- Mayer, Climate Change Adaptation and the Law, in Virginia Environmental Law Journal, 2021, pp. 141-176.
- McAdam, Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement, in American Journal of International Law, 2020, pp. 708–725.
- Rajamani, Human Rights in the Climate Change Regime: From Rio to Paris and Beyond, in J.H. Knox, R. Pejan (eds.), The Human Right to a Healthy Environment, Cambridge University Press, Cambridge-New York, 2018, pp. 236-251.
- Savaresi, Plugging the Enforcement Gap. The Rise and Rise of Human Rights in Climate Change Litigation, in Questions of International Law, 77, 2021, pp. 1-3.
- Setzer, C. Higham, Global Trends in Climate Change Litigation: 2022 Snapshot, Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, London, 2022.
United Nations Environment Programme, Global Climate Litigation Report: 2020 Status Review, UNEP, Nairobi, 2021.
Footnotes
[1] I.R. Noble, S. Huq, Y.A. Anokhin, J. Carmin, D. Goudou, F.P. Lansigan, B. Osman-Elasha, A. Villamizar, Adaptation Needs and Options, in C.B. Field, V.R. Barros, D.J. Dokken, K.J. Mach, M.D. Mastrandrea, T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. Girma, E.S. Kissel, A.N. Levy, S. MacCracken, P.R. Mastrandrea, L.L. White (eds.), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, Cambridge-New York, 2014, p. 838-850, especially 853.
[2] United Nations Framework Convention on Climate Change, (adopted 09/05/1992, entered into force 21/03/1994, 1171 UNTS 107. https://unfccc.int/resource/docs/convkp/conveng.pdf
[3] Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11/12/1997, entered into force 16/02/2005, 2303 UNTS 162. https://unfccc.int/resource/docs/convkp/kpeng.pdf
[4] Paris Agreement (adopted 12/12/ 2015, entered into force 4/11/2016, U.N. Doc. FCCC/CP/2015/L.9/Rev/1, 3156 UNTS 1. https://unfccc.int/sites/default/files/english_paris_agreement.pdf.
[5] See the Statement of UN Secretary-General to the Human Rights Council, on 24 February 2020. See also the publications of the Office of the High Commissioner for Human Rights, Frequently Asked Questions on Human Rights and Climate Change (Fact Sheet No. 38, New York-Geneva, 2021) which recalls the work of the organs of the United Nations, the treaty bodies and other international organisations.
[6] According to the report Global Trends in Climate Change Litigation: 2022 Snapshot, the number of climate cases has more than doubled since 2015. The total number exceeds 2.000 cases. https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-change-litigation-2022/.
[7] The Hague Court of Appeal, The State of the Netherlands (Ministry of Infrastructure and the Environment) v. Urgenda Foundation, Decision 09/10/2018, ECLI:NL:GHDHA:2018:2610, para. 3.6 (http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2018/20181009_2015-HAZA-C0900456689_decision-4.pdf) .
[8] Supreme Court of the Netherlands, The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v. Urgenda Foundation, Decision 20/12/2019, ECLI:NL:HR:2019:2006, para. 5.3.2 (http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2020/20200113_2015-HAZA-C0900456689_judgment.pdf).
[9] United Nations Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016, 24/10/2019, CCPR/C/127/D/2728/2016, para. 9.11 (https://www.refworld.org/cases,HRC,5e26f7134.html).
[10] Ibidem, para. 9.12.
[11] Ibidem.
[12] German Federal Constitutional Court, Neubauer et al. v. Germany, Order 24/03/2021, ECLI:DE:BVerfG:2021:rs20210324.1bvr265618, para. 181(http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2021/20210324_11817_order-1.pdf).
