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- Publisher
- Brill
- Copyright
- Copyright © Koninklijke Brill NV, Leiden, The Netherlands
- ISSN
- 1878-6553
- eISSN
- 1878-6561
- DOI
- 10.1163/18786561-20210001
- Publisher site
- See Article on Publisher Site
Abstract
1IntroductionOver the last three decades, the UN climate change regime has shifted and expanded its focus as the climate continues to change and scientific knowledge on current and projected impacts grows.1 The development of adaptation and related obligations reflects this dynamism. Initial efforts within the regime focused on mitigating the causes of climate change. Adaptation was a secondary response, one expected to occur naturally or if mitigation efforts failed.2 Yet, the unfccc includes commitments on adaptation, and these are foundational to continued work on adaptation within the regime.3 Since the UNFCCC, there has been an increasing focus on adaptation. An emphasis on identifying adaptation priorities and planning has been supplemented by efforts at implementation. The Paris Agreement scales up action and obligations on adaptation.4 The Agreement’s Article 2 objective mentions adaptation, and adaptation has its own dedicated article and is subject to a long-term global goal.5This article focuses on certain obligations related to adaptation – what are referred to hereinafter as adaptation obligations. Reading across the unfccc and the Paris Agreement, three type of adaptation obligations can be identified: to act, to assist, and to cooperate.6 These obligations have the potential to be a powerful legal tool. They can guide states’ adaptation efforts, lead to anticipatory action, and compel international support. However, they are currently underexplored in academic analysis and underutilized in practice. While there is some discussion of adaptation obligations in general,7 there is little scholarship detailing their interpretation and potential use. As a result, important questions remain unanswered about their scope, content, and the extent that they can be called upon to address the many challenges posed by climate change. This article, therefore, sets out to clarify these obligations. It begins from the premise that the climate treaties are a part of an international legal system that should strive for coherence and consistency.8 This premise is critical to respond to the challenges of an increasingly connected, yet pluralistic legal landscape, which includes the potential for conflicts in law or between treaty regimes.9 It also serves as a starting point for interpreting adaptation obligations.Accordingly, to lend adaptation obligations clarity and ensure their consistency with the climate change regime’s broader normative framework, this article integrates human rights law into their interpretation. To provide a conceptual foundation, it begins by introducing climate change adaptation. It then uses the tools of treaty interpretation to argue for the integration of human rights law generally, and for the integration of two rights specifically: to life and to an adequate standard of living. While climate change threatens the enjoyment of a multitude of rights, the focus is on these two rights because they are critical to subsistence and to survival and are widely accepted in treaty and customary law.10 Thus, they help to demonstrate how the interpretive process applies to adaptation obligations, strengthening and fleshing out the positive duties they entail. The outcome of such a process will depend on the context, including the specific risks people face given their location and its socio-economic, political, and cultural conditions. Nevertheless, adaptation plans and programmes that observe human rights throughout the process can lead to better outcomes for those facing the greatest risks from climate change.2Climate Change AdaptationClimate change adaptation is a broad concept. There is no single agreed-upon definition of adaptation, and its meaning remains subject to debate.11 The ipcc defines adaptation as ‘the process of adjustment to actual or expected climate and its effects’. It differentiates between adaptation in human systems, which aims ‘to moderate or avoid harm or exploit beneficial opportunities’, and natural systems, where ‘human intervention may facilitate adjustment to expected climate’.12 An emphasis on different factors affects the breadth of adaptation, the types of activity under its ambit, and the resulting actions policymakers and governments must undertake.The timing of adaptive responses is central to how adaptation is implemented. Generally, reactive adaptation occurs in response to impacts that have already happened, whether through autonomous or intentional means,13 while anticipatory adaptation is action taken to address predicted impacts. While the focus in this article is on the latter, the distinction between the types of response need not be dichotomous. Some forms of adaptation incorporate an element of both reaction and anticipation, and anticipatory action can include planning for reactive measures. For example, adaptation programmes can include anticipatory actions to prepare for and mitigate the impacts of sudden-onset events, such as storms and hurricanes, as well as actions that will be taken in response to such events.Moreover, climate impacts interact with a variety of existing conditions – social, economic, political, and cultural – to give rise to a need to adapt. Accordingly, adaptation measures that seek to protect human interests and rights must consider the confluence of those other conditions with environmental threats. The ipcc recognizes that the ‘framing of adaptation’ has moved beyond biophysical risk to include ‘wider social and economic drivers of vulnerability and people’s ability to respond’.14 This framing raises an additional consideration: adaptation measures will have distributional effects. It necessarily produces trade-offs, and in some cases will benefit some people at the expense of others. Inaction is itself an adaptive option, and decisions about actions and about who or what to prioritize require a means to assess risks and potential outcomes. The integration of human rights law into adaptation programmes can assist decision-makers in establishing priorities and can better ensure that people continue to live in safety and with dignity.3Interpreting Adaptation ObligationsThis section applies the elements of treaty interpretation set out in the Vienna Convention on the Law of Treaties (vclt) to terms found in the unfccc and the Paris Agreement. It seeks to interpret adaptation obligations, and reads them in light of human rights law, to help clarify their content and explore the kinds of action they imply. The vclt’s ‘general rule on treaty interpretation’ is considered customary law, binding on all states.15 The rule requires that a treaty be interpreted in accordance with the ordinary meaning of its terms in their context and in light of its object and purpose. In addition, the rule mandates that interpretation take into account ‘any relevant rules of international law applicable in the relations between the parties’.16 This element is also known as the principle of systemic integration. While these different elements are part of a unified interpretive process, below they are analysed separately to explain how each contributes to the process and to differentiate between the implications of the treaty text and the integration of external rules from international human rights law. The text is the focus of the first section; the systemic integration of external rules is analysed in the second. Together, they provide a basis to argue for the integration of human rights law into adaptation obligations.3.1Treaty TermsThere are three types of adaptation obligation established by the unfccc and developed in the Paris Agreement.17 The first consists of obligations to act on adaptation, including the need to ‘facilitate adequate adaptation’ and to ‘engage in adaptation planning and the implementation of actions’.18 The latter includes qualifying language – ‘as appropriate’ – which softens the obligation. This allows states to interpret what is appropriate or adequate in context. However, to meet these legal commitments, action is required. Adaptation encompasses a range of activities that respond to the varying risks posed by climate impacts; and, in some cases, adaptation requires addressing risks to people and their rights.The second type consists of obligations to assist in adaptation. They are focused primarily on developed-country parties providing financial assistance to certain developing-country parties.19 The third type is an obligation to ‘Cooperate in preparing for adaptation’.20 Assistance is a form of cooperation. Support can operationalize cooperation and, together with assistance obligations, evinces an agreement by the parties that adaptation is not an undertaking for each state on its own.21 The Paris Agreement underscores this understanding of adaptation through provisions that highlight the importance of support for, and cooperation on, adaptation and of ‘enhancing action on adaptation’.22 These provisions do not create hard legal obligations, but represent shared understandings, suggest where cooperation is needed, and create expectations for the parties that support will be available.23Adaptation obligations are broad and subjective. This is, in part, by design.24 Their breadth, and the fact that adaptation in the regime is undefined, leaves room for additional considerations and other aspects of interpretation to inform their content.3.2Context and Object and PurposeInterpretation requires terms to be considered in their context and in light of a treaty’s object and purpose. The context includes a treaty’s text, preamble, and any annexes.25 For the integration of human rights into climate treaties the preamble of the Paris Agreement and the operative principles of the regime are of particular importance.The Agreement’s preamble acknowledges that states ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. It also highlights the rights of certain groups, and of people in vulnerable situations.26 While the preamble does not in itself create legal rights or obligations, it can help to add meaning to the Agreement’s terms, and it is a basis for including human rights law in its interpretive ‘context’.27 However, even though there has been a suggestion that the preamble’s reference to human rights signals a move ‘towards a true incorporation of human rights’,28 the language used undercuts such a reading. The preamble does not, for example, reference obligations to protect or fulfil human rights, instead opting for ‘promote and consider’; and it refers to parties’ respective human rights obligations, not to such obligations in general. This is likely the result of compromises in negotiation, and the belief that such language may have been too ‘operative’ for a preamble.29 On its own, the preambular language could limit the integration of rights obligations, particularly positive obligations. Therefore, other elements of interpretation are critical to such integration.The objectives and operative principles of the climate treaties are further aspects that support the inclusion of human rights. Like the preamble, both are part of the interpretive context. The principles guide the interpretation and application of the unfccc’s and Paris Agreement’s provisions.30 Because they do not create stand-alone commitments or mandate specific action, their operationalization is accomplished by linking them to specific obligations – such as on adaptation – or to other legal rules.The principles set out in the unfccc – precaution, equity, and common but differentiated responsibilities and respective capabilities (cbdr-rc) – are most pertinent to the present analysis. As discussed in greater detail in Section 6, below, these principles can guide and shape the nature and timing of adaptation and support for adaptation. For example, the precautionary principle operates to mitigate adverse effects from climate change,31 which includes effects on people and risks to their rights. It influences when adaptation should be undertaken, strengthening arguments for anticipatory and preventive action in the face of foreseeable harm.Likewise, the climate regime’s evolving objectives and work on adaptation argue for the inclusion of human rights. As the Paris Agreement is a treaty under the unfccc, its objective and certain of its provisions can be interpreted in light of the latter. The Agreement expands the objective of the unfccc, ‘enhancing the implementation of the Convention’, including through its aim to ‘strengthen the global response’ to climate change by ‘increasing the ability to adapt’.32 This is bolstered by the article on adaptation, which recognizes the significant need for adaptation and the role it plays in the ‘long-term global response’ to ‘protect people, livelihoods and ecosystems’.33 The latter establishes the general relevance of human rights law, and brings adaptation into line with its protective purposes: to ensure conditions that allow people to live safely, with dignity, and to access livelihoods and basic needs. Taken together, the Agreement’s acknowledgement of human rights, its enhanced objective, and its reference to the protection of people, livelihoods, and ecosystems provide a starting point for an interpretation of adaptation obligations that includes human rights.3.3Systemic IntegrationSystemic integration of other relevant international law is an element of treaty interpretation. It is not always needed, but it must be considered, and it may be justified if another part of the interpretive rule suggests that recourse to external sources of law is needed.34 It is particularly useful for interpreting terms or provisions such as adaptation obligations that are ambiguous, unclear, or open-textured.35 Integration also provides a means to avoid, or to address, potential conflicts when regimes interact.36 Thus it can translate into norms – here from the human rights and the climate change regimes – reinforcing one another. Integration is not the application of different rules alongside one another, but rather part of the interpretive process, which can circumscribe, clarify, or flesh out a treaty’s content.37 External rules must ‘be taken into account’,38 but they should not result in those rules displacing or superseding the provision being interpreted. Through integration, human rights law could help concretize adaptation obligations by providing clarity as to what duties they entail.The use of systemic integration raises two questions. The first considers at what point in time does interpretation look to external rules of international law. The second asks what rules are ‘relevant’, and between which parties should these relevant rules apply.3.3.1An Evolutive Approach to InterpretationThis article takes an evolutive approach to interpretation, one that allows for the meaning of treaty terms to change over time. Such an approach is confirmed by looking to the intent of the parties to the climate regime and to whether terms were meant to be fixed or to evolve.39 The dynamism built into the climate treaties shifts in concepts and goals within the regime, and the inherent need for adaptation to evolve, evince an intent that the content of adaptation obligations is also to shift over time. This is accomplished, in part, by integrating relevant legal developments into the interpretive process. This accords with the approach to interpretation taken by international courts and tribunals. The International Court of Justice, for example, has noted that, where concepts are ‘not static, but by definition evolutionary’, ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation’.40Treaty concepts that inform adaptation obligations can also evolve and be incorporated into interpretation. Accounting for changes to the context or conditions in which a treaty operates contributes to ensuring its continued effectiveness.41 This allows for interpretation to incorporate increasing knowledge about climate impacts, an approach that is reflective of the way in which scientific uncertainty is handled in international environmental law in general, with treaties characterized as institutionalizing change rather than stability.42The concept of adaptation is not meant to be fixed to a specific moment. As climate impacts create new challenges, adaptation measures will necessarily shift to account for changes to ecosystems and resources. A failure to incorporate these changes into adaptation obligations could interfere with the enjoyment of human rights or violate human rights law, which would undermine adaptation efforts. Without shifts in agriculture or irrigation in areas of prolonged drought, for example, violations of rights to adequate food and water, or to the highest attainable standard of health, are likely to occur. Thus, an interpretive process that can adapt to changing conditions results in different interpretations of what adaptation obligations entail over time. This can also account for an evolving understanding of human rights law.43 Interpretation could, for example, incorporate a right to a healthy environment, if such a right becomes more widely accepted by parties to the climate regime.44 It could also incorporate clarifications by judicial bodies about the scope and content of human rights law, as well as developments across and within other regimes, which themselves might be affected by the context of climate change.3.3.2Relevant Human Rights Law Applicable between the PartiesThe links between human rights and climate change are now widely recognized.45 Recognition of these links led to the inclusion of the preambular reference to human rights in the Paris Agreement and, implicitly, in rights-related considerations, participation, and provision of information in the body of the Agreement.46 Both treaty and customary human rights law are relevant for integration purposes. Their binding nature and legal basis outside the climate regime underscores their application to that regime as external rules.The integration of relevant rules is limited to those applicable between parties. Several scenarios have been suggested about the meaning of this requirement, which range from requiring that the external rule applies to all parties – either parties to the treaty being interpreted or parties to a dispute – to an implicit acceptance or toleration of the rule by the parties. Scenarios requiring all parties have been criticized as too narrow or leading to inconsistent interpretations, and would make it difficult for treaties with wide participation such as the unfccc or Paris Agreement to bring in any other treaty rule that is not already a part of customary law.47 This article adopts an approach that looks to party acceptance of an external rule.48 It focuses on rights or duties that are customary or have been ratified or accepted in some form by most states.Such an approach to the integration of human rights law has been instrumental in developing an understanding of provisions in other areas of the law. For example, the inclusion of human rights law in the preamble to the Refugee Convention, and the systemic integration of subsequent international instruments to affirm its ‘human rights orientation’, have shaped understandings of who is a refugee and what are refugee rights.49 A systemic approach has also been used to argue for the integration of the Convention on the Rights of the Child into the interpretation of the Refugee Convention to ensure a ‘child-rights framework’ for assessing the status of, and protection for, the refugee child.50For adaptation obligations, integrating human rights law may provide clarity or content that could, for example, establish permissible limits to adaptation activities, compel proactive measures based on positive rights obligations, or provide benchmarks that assist in determining the lawfulness of adaptation measures.51 Facilitating these multiple functions can help ensure that rights are taken into account during both the interpretation and implementation of obligations, which translates into their consideration at different points in the process of adaptation.4Integrating Positive Human Rights DutiesHuman rights generally involve positive and negative duties: to act and to refrain from acting. While recognizing that states should refrain from violating human rights, the focus here is on state adaptation measures and thus on the positive duties of states to protect and fulfil human rights. These are the duties which, when relevant and integrated into adaptation obligations, help shape what must be considered and included in adaptation plans and policies. Accordingly, an understanding of these rights is necessary. While climate change has widespread impacts on the enjoyment of many rights, this section explores the positive duties associated with two rights: to life and to an adequate standard of living. These rights are critical to subsistence and survival. They are also customary or widely applicable, and so they are used to demonstrate how their integration could apply broadly – across contexts – to lead to adaptive action that addresses certain foreseeable risks. This does not diminish the importance of other rights or their cumulative effect. The same interpretive process could be used where they are relevant and applicable.524.1Right to LifeHuman rights instruments protect the right to life.53 The right is also a part of customary international law. It should not be narrowly interpreted, and it requires states to take positive action to ensure its protection.Climate change poses a risk to all ‘material aspects of life and livelihood’.54 It can constrain access to resources and basic necessities. Such constraint, at its most extreme, can pose a threat to human life. It can be brought about, for example, by sea-level rise, prolonged drought and desertification, and flooding of low-lying areas.55 Because of its customary status, the right, when relevant, must be integrated into the adaptation obligations of all parties bound by the climate treaties. Its broad relevance is increasingly clear. As the Human Rights Committee (hrc) recognized in its General Comment 36 – its most recent on the right at the time of writing – climate change constitutes one of ‘the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’. It advised states to look to their obligations under international environmental law to inform the content of the right, and, conversely, for the right to inform international environmental law obligations – much as this article looks to human rights to inform the content of climate change obligations.56The Comment also provides guidance on the content of the right, or on the duties states have to meet their human rights obligations. For example, the Comment includes ‘degradation of the environment’ in its list of ‘general conditions in society’ that may give rise to a duty, and it highlights means to address these conditions, including through ‘measures designed to ensure access without delay by individuals to essential goods and services such as food, water, shelter, health-care, electricity, and sanitation’. The Comment makes clear that measures must be taken to address both the direct threat from environmental degradation, including climate change, and the further threats it gives rise to.57 This expands the scope of the right through its inter-relationship with the ‘right to a life with dignity’.58 It also links the right with subsistence rights, and to the right to an adequate standard of living. This accords with the nature of the right to life, whose content can be informed by other human rights and whose protection is a prerequisite to enjoy those rights.59Decisions of judicial and human rights bodies can provide further guidance on what states can do to meet their positive obligations. For example, in the face of environmental risk, regional case law has found that the right to life creates substantive and procedural duties for states to take protective measures, which could include regulating environmental risks that pose a threat and disclosing information about those risks.60 States are given a margin of appreciation in determining how to meet their duties, which can be increasingly limited as the threat to life becomes more serious or immediate.61 The decisions make clear that the right applies not only to individuals but also to communities or society as a whole.62 Thus, the right creates a positive obligation for states ‘to take appropriate steps to safeguard the lives of those within their jurisdiction’.63 What is appropriate can be shaped by adaptation obligations and by the particular context.However, it is not always apparent when a risk to the right should trigger action. Of particular relevance for adaptation are duties to address foreseeable threats – threats that can be prevented or mitigated and that could lead to an individual’s unnatural or premature death or interfere with his or her enjoyment of a life with dignity.64 When climate impacts pose such a foreseeable threat, this translates into a duty to act in advance of significant harm.65 Thus, adaptation programmes cannot consist of responsive measures alone, and post-hoc humanitarian interventions are not only inadequate, they violate a state’s legal commitments to act on adaptation. Yet how immediate the risk must be – based on a rights analysis alone – remains open to debate. Precedent suggests that positive duties could be limited to situations where the threat to life is considered imminent.66 Imminence has been cited in regional case law, although it may not always be the imminence of the risk to the right that determines the outcome. The European Court of Human Rights determined that what prompted positive action was the imminence of the natural hazard which threatened life, not the imminence of the risk to the right, particularly where such a hazard is ‘clearly identifiable’ and ‘where it concerned a recurring calamity affecting a distinct area developed for human habitation or use’.67A growing body of decisions and guidance underscore the need to act to prevent risks that are not only imminent but also foreseeable, including from underlying or environmental conditions. The hrc, for example, has begun to emphasize the foreseeability of risks in its analysis of substantive claims. It has found that the failure to take protective action against foreseeable threats from environmental harm or degradation violates the right to life and to the enjoyment of a life with dignity. This means that states have an obligation to protect against such harm before it occurs. In recent decisions, the hrc has not mentioned imminence in its substantive analysis, instead focusing on whether a threat to life was reasonably foreseeable.68 These decisions signal a shift towards a different standard – one that aligns better with precaution and anticipatory action.69 This shift has been taken forward in recent domestic litigation: the Supreme Court of the Netherlands noted that although the risks posed by climate change ‘may only materialise in the longer term’, and ‘will only be realized in a few decades’, this did not preclude that the right to life offered protection in the present – ‘in line with the precautionary principle’.70Accordingly, when integrated into adaptation obligations, the right to life requires that there is access to a means to survive and that there is avoidance of significant but foreseeable risks from the environment. This is due in part to the developing scope and nature of the right, as identified in this section: action must be taken to address the general conditions that give rise to a threat of this kind, and such a threat need be only reasonably foreseeable – even over longer timescales – rather than imminent. This requires action to plan for and implement adaptation that is not on a fixed time frame but that itself anticipates the changing nature of climate risks.4.2Right to an Adequate Standard of LivingAs the UN Committee on Economic, Social and Cultural Rights (cescr) has warned, the impacts of climate change constitute ‘a massive threat to the enjoyment of economic, social and cultural rights’, and in particular to rights associated with an adequate standard of living, which will be affected ‘at an increasing pace in the future’.71 The right to an adequate standard of living is not defined in any international instrument; rather, it is elaborated through its constituent rights. They include the rights to food, water, housing, and health.72 The last is a separate right in the International Covenant on Economic, Social and Cultural Rights (icescr), but it overlaps with the other constituent rights.73 Like other rights in the icescr, these rights are subject to progressive realization, with each state required to take steps ‘to the maximum of its available resources’.74 States also have core obligations that are of immediate effect and must be maintained, even in circumstances where limitations to rights may be permissible.75 As the CESCR explains, states are obliged ‘to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’.76 These core obligations are important, as they provide the basic content and positive duties associated with each right.The risks from climate change to these rights are well-established. For example, access to adequate food is put at risk when desertification or salinization leads to crop failure or reduces agricultural output. These impacts can be worsened by existing conditions: an estimated half of the world’s 854 million hungry people live in already degraded lands – degradation which will be exacerbated by climate change.77 Climate change also affects water quality and availability. Drought can reduce access to water; sea-level rise can lead to salinization of freshwater sources; and flooding can reduce water quality. Over two billion people may end up without access to an adequate water supply – twice the current number.78 In low-lying and coastal areas, sea-level rise and storms threaten to destroy coastal dwellings and inundate urban areas.79 People in precarious housing situations, including those in slums and informal settlements, are at acute risk. These locations are already plagued by environmental degradation, extreme weather events, and related disasters.80 By putting adequate food, water, and housing at risk, climate change also poses a serious threat to health. Determinants of health are inextricably linked to environmental and social conditions.81 Health problems and increases in disease have been linked to changing environmental conditions, which climate change will exacerbate.82 Concern for human health, and the right to health, are included in the climate treaties.83When such risks threaten access to the resources needed to secure ‘minimum essential levels’ of a right, a state’s positive duties are triggered. These core obligations are derived from the rights, and developed in cescr guidance. For example, the right to food, which includes ‘the fundamental right to everyone to be free from hunger’,84 creates immediate core duties for a state to ensure freedom from hunger.85 It is likely that at least this aspect of the right is customary law; and the right in general ‘has been endorsed more often and with greater unanimity and urgency than most other human rights’.86 The cescr’s explanation of what the right requires, including its core content, emphasizes availability and accessibility: food must be available ‘in a quantity and quality sufficient to satisfy the needs of individuals, free from adverse substances, and acceptable within a given culture’; and it must be accessible ‘in ways that are sustainable and that doesn’t impede the enjoyment of other rights’.87 Special attention to accessibility may be required for disadvantaged groups, ‘[v]ictims of natural disasters [and] those living in disaster prone areas’.88 Accordingly, when the enjoyment of the right is put at risk by climate impacts, states must act to ensure that people are able to produce, cultivate, or access food – both physically and economically.As with food, core obligations associated with the right to water are aimed at ensuring availability and access to a minimum essential amount of water, safe and regular water services, and adequate sanitation.89 Thus all states must ensure that water is safe, sufficient, and accessible. Likewise, the integration of the right to adequate housing translates into positive measures to guarantee access and certain conditions: housing must be culturally appropriate, affordable, habitable, and accessible.90 Core obligations on the right to health are similar. They focus on access to health services and minimum essential food, basic housing, and potable water.91 The overlap in the core duties underscores their interconnection. Climate impacts affect a number of resources at once, and thus it may be the cumulative risk to the rights that prompts state action.Human rights bodies have repeatedly stated that priority must be given to vulnerable, disadvantaged, or marginalized groups or persons, including in participatory processes and in providing essential goods and services.92 Integrating human rights law’s focus on vulnerability can help establish priorities in adaptation planning and programmes. This adds another layer to the adaptation analysis, one that integrates concern for those most vulnerable into adaptation obligations that already prioritize vulnerable developing countries.93 Such a focus accords with developments in the climate regime: the Paris Agreement acknowledges the rights of people in vulnerable situations and the consideration of vulnerable groups in adaptation.94 It is, of course, important to view all people as agents and as ‘essential partners in … efforts to tackle climate change’.95Given that core obligations are of immediate effect, and given the need for precaution (as argued below), a risk to a right need not be imminent to prompt state action. As with the right to life, the standard by which to assess such risk should focus on knowledge and reasonable foreseeability: if there is a real risk of serious harm, even one caused by the longer-term consequences of climate change, then positive duties are triggered. The key components are the knowledge and foreseeability of risk and the potential impairment of access to minimum essential resources needed for these rights. Due to the prospective nature of risk assessment and the different ways in which climate change may unfold, some degree of uncertainty must be accepted. However, as in other contexts, the fact that multiple scenarios are possible does not obviate the need for anticipatory action.96Interpretation can be tailored to the adaptive goal on a case-by-case basis and remain faithful to the limits of treaty interpretation.97 When the risk that a state will not be able to provide essential resources is foreseeable, adaptation obligations that integrate rights require a state to plan in advance and take appropriate action. This can result in a range of adaptation measures. For example, when faced with rising sea levels and increased storm surges, state adaptation efforts may initially aim to address impacts through seawalls, changes to land use and irrigation, and alteration to sources of drinking water. As the severity of impacts increases, and land becomes less habitable, recourse to actions that facilitate planned relocation or migration may be necessary to protect human rights. Furthermore, when a state is unable to meet its required core duties to provide certain basic resources, it should – and in some cases it must – request international assistance to do so.985Integrating Human Rights Duties into Obligations to Assist and CooperateAs with the integration of relevant rules to shape a state’s adaptation action, there are duties in human rights law that can be used in the interpretation and implementation of the adaptation obligations of assistance and cooperation. Assistance obligations include the obligation of developed countries to provide support to developing countries for adaptation.99 As established by the unfccc, such support is critical to its success: performance of developing countries’ obligations is dependent on ‘the effective implementation by developed country Parties of their commitments … related to financial resources and transfer of technology’.100 The Paris Agreement builds on these commitments, to require ‘Continuous and enhanced international support’ to developing countries for the implementation of their adaptation obligations,101 including through financial assistance from developed countries.102 Such support is necessary when developing countries cannot implement adaptive actions on their own to protect life or provide essential resources. However, the obligations that require financial assistance from developed to developing countries lack specificity and detail.103 Therefore, they require further development or interpretation to resolve their ambiguity.Human rights duties bolster the case that support for adaptation from developed countries is a legal requirement. International instruments, and the UN Charter and the icescr in particular, contain relevant provisions on cooperation and assistance. Cooperation is central to the UN, as one of the UN’s purposes is ‘To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all’.104 UN members have pledged to cooperate in promoting ‘universal respect for, and observance of, human rights and fundamental freedoms’.105 Such a commitment, while general, supports the need to cooperate on adaptation efforts that seek to avoid or mitigate risks to human rights from climate change.The icescr contains more-specific provisions. For example, states agreed to the progressive realization of rights ‘individually and through international assistance and cooperation’.106 This applies to the right to an adequate standard of living, recognizing ‘the essential importance of international co-operation’ in realizing the right. For the right to be free from hunger, states ‘shall take, individually and through international co-operation,’ those measures needed to improve methods of food production, conservation, and distribution and to ensure equitable distribution of food globally according to need.107 As the cescr emphasizes, assistance and cooperation play an ‘essential role’ in the realization of economic, cultural, and social rights, which ‘is particularly incumbent’ on those states – namely developed countries – that have the ability to assist.108 In its general comments on the right to health and the right to water, the cescr reiterates that ‘it is particularly incumbent on State parties and other actors in a position to assist to provide international assistance and cooperation … which enables developing countries to fulfil their core obligations’.109 The duty to fulfil rights under the icescr has been interpreted as suggesting that wealthy states are obliged to assist poorer ones in adaptation.110 The cescr, too, has called on developed countries to support developing countries in adaptation efforts as part of their duties of international cooperation and assistance.111Taken together, the icescr’s obligations and the cescr’s interpretations lead to an understanding of cooperation and assistance with several key implications. First, a state must provide the minimum essential resources required for access to food, water, housing, and health care. This triggers positive action in certain circumstances to ensure access to these resources, including through adaptation measures. Developed states have obligations to assist in adaptation, which through integration includes support in addressing risks to rights. Second, if a state cannot meet its core rights obligations – including satisfying its adaptation obligations – it should ask for assistance. Other states, particularly developed countries with the means to do so, are obliged to cooperate and provide assistance in meeting those core obligations. This duty is one required by adaptation obligations and clarified by relevant human rights duties. It helps to specify one form of assistance in adaptation required of developed states: support to ensure basic necessities for vulnerable populations in developing countries.Third, the relevant icescr duties to cooperate and assist establish the importance to the analysis of the right to an adequate standard of living. While the right to life compels states to assist in certain circumstances, this may only be in acute cases. There is no similar duty to assist and cooperate in the International Covenant on Civil and Political Rights. However, as the analysis of the right to life evinces, the conditions required for a dignified life overlap with those protected by the right to an adequate standard of living. The inclusion of the latter makes the integration of related positive duties more direct, as does the obligation of states to assist and cooperate. In practical terms, integration can translate into the incorporation of human rights-based measures in requests for adaptation assistance within the climate regime and a double, or strengthened, duty to provide such assistance.6Operative PrinciplesAs established above, the operative principles of the climate regime both guide action and are part of the interpretive context of climate treaties. In the interpretation of adaptation obligations, the principles of precaution, equity, and cbdr-rc are particularly important. When applied alongside the integration of human rights, the principles help shape obligations and strengthen arguments for action in advance of foreseeable harm and for support based on differentiation.6.1Precaution and AdaptationThe unfccc’s principles include the requirement that ‘Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects’. Furthermore, a ‘lack of full scientific certainty’ should not postpone action when climate change poses a threat of ‘serious or irreversible damage’. Such action should be ‘cost-effective’, ‘take into account different socio-economic contexts’, ‘cover all relevant … adaptation’, and may be carried out cooperatively.112In general, precaution encourages preventive action to avoid serious harm and precludes lack of certainty as a reason not to act.113 The precautionary principle can be seen as building upon, or as being interrelated to, the principle of prevention, ‘to guide or orient initiatives to avoid harm or probable harm to the environment’.114 The likelihood of harm required for action is reduced through the principle, particularly when the consequences could be grave. Accordingly, it can prompt action sooner than the principle of prevention – before risks are immediate or certain.115 As applied to adaptation obligations, it plays this role by reinforcing the integration of positive duties to protect rights in advance of significant harm. For example, it strengthens arguments that the duties to protect the right to life should not only occur when harm is imminent or certain but also when climate impacts present a foreseeable risk of harm. Thus, the principle ensures that the positive duties integrated from human rights law are called upon earlier in order to incorporate human rights benchmarks and safeguards in planning and anticipatory action, in addition to implementing or remedial action. In this way, they serve a transformative role, one that aids in overcoming potential limits to the use or integration of human rights law alone. This additional interpretive step is important, because the time when positive obligations must be undertaken under human rights law is not always clearly specified, or tends to be clarified only after a violation occurs. Yet an interpretation that supports anticipatory action is consistent with the nature of adaptation obligations, their inclusion of planning and preparation, and the principle’s aim to prevent and reduce harm from the impacts of climate change.Furthermore, as the risks to rights become increasingly evident, inclusion of the principle requires more urgent preventive action. This has parallels in the interaction of the principles of precaution and prevention in due-diligence standards: the greater the certainty that a risk of harm exists, the less severe such harm must be to compel action.116 Integrating human rights and precaution leads to similar results, with the threshold for harm reduced: if the certainty of risk to rights is clear, action must be taken to prevent violations. Climate change has been characterized as requiring a straightforward application of the principle to compel proactive measures, with the burden to demonstrate otherwise falling on those opposing such measures.117 Combined with rights integration, it can be used by affected persons to demand measures that protect their interests. Precautionary action is often in the best interest of states as well, especially where risk assessments may be complicated by multiple factors or, as is the case for climate change, where catastrophic impact is possible.The principle also supports proactive assistance and cooperation. The success of adaptation may hinge on the timeliness and breadth of assistance. Adaptation provides a means for states to affirmatively and concretely act to protect and fulfil human rights. Yet it is also an iterative process that adjusts to changing circumstances over time. In the implementation of adaptation ‘a continuum of response from protection in place to community relocation’ will be required as climate change alters the landscapes and resources relied upon by people.118 Because of this, and because adaptation obligations are evolutive, support may not be a one-off or one-time contribution. Thus, assistance and cooperation should adjust to reflect the changing needs of developing countries. These countries may need to have access to support multiple times, including for proactive, anticipatory measures that allow people to adapt when they face significant risks to the enjoyment of their human rights. This is consistent with the ‘Continuous and enhanced international support’ for adaptation required by the Paris Agreement.1196.2Equity and cbdr-rcThe unfccc’s principles also include guidance that parties should protect the climate system ‘on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’. Developed-country parties are instructed to ‘take the lead in combating climate change and the adverse effects thereof’.120Equity ‘sits at the very heart of the international climate change regime’.121 Equity incorporates broader concepts of fairness and justice into the climate regime, as well as burden-sharing and affirmative action as applied within and between states and to individuals.122 cbdr-rc is a manifestation of equity, which is central to the continued development of the regime and its obligations.123 In addition to its inclusion in the operative principles, cbdr-rc is reiterated in the commitments set out in the unfccc, including those on adaptation.124Equity and the cbdr-rc principles are foundational to differentiated obligations and actions in the regime. Differentiation provides the clearest guidance on assistance with adaptation, and can distil what equity is between states in practical terms. Within the unfccc, it requires the division of parties into categories with different commitments. Developed states have a duty to assist because of their capacity and contribution to climate change. Developing countries must adapt, but this is contingent on assistance. As is it they that face some of the greatest harms, but may have contributed the least to climate change, the principle is crucial to the implementation of adaptation obligations.The principle’s application has shifted in the Paris Agreement, which seeks action by all parties in some instances and continued differentiation for other facets.125 This stems from the addition of ‘in light of different national circumstances’ to the principle, as included in the preamble, the objective, and the description of parties’ ndcs on mitigation.126 This qualification may introduce an evolutive element: as national circumstances shift, so too will responsibilities. Given this change, the utility of differentiation – and that of equity as an overarching principle – has been muddied and called into question with regard to mitigation.127 Yet for adaptation, differentiation remains critical and intact. The core of differentiation also remains unchanged for the financial assistance owed from developed to developing countries.128Accordingly, an interpretation that integrates relevant rights and principles of equity and cbdr-rc into duties to assist and cooperate can provide important clarifications about the scope of adaptation obligations. It establishes who is due support and who should provide it. Differentiation in the regime and integration of relevant rights obligations make clear that support is required from developed-country parties and must be directed to developing-country parties and to the people vulnerable to climate impacts within them. This helps shift the burden from developing countries most affected by climate impacts to a broader set of states. In so doing, it brings a collective element to support and makes adaptation an effort that goes beyond the implementing state.7ConclusionThis article set out to help clarify the nature of states’ adaptation obligations in the climate change regime. It identified three categories of adaptation obligations – to act, to assist, and to cooperate – that are broad but create legal duties for state action. These obligations can be interpreted and applied in a manner that shapes state planning for, and facilitation of, anticipatory adaptation. The article first discussed the concept of climate change adaptation. It emphasized proactive adaptation that not only considers climate impacts, but also the wider context in which they operate. This translates into measures that account for other factors, including societal and cultural conditions, which in turn requires an understanding of the vulnerabilities and risks to people in the short and longer term. The integration of human rights offers a means to address these risks – one that can assist decision-makers in establishing priorities and ensuring that those most vulnerable are able to live in safety and with dignity.This article used the tools of treaty interpretation to integrate human rights into the climate regime. This regime is not a self-contained body of law. It remains tied to other rules and principles of international law, particularly human rights law. Accordingly, adaptation obligations should be read in light of human rights law, and the article laid out the steps that lead to this conclusion. It discussed the inclusion of human rights – explicitly and implicitly – in climate treaties, took an evolutive approach to interpretation, and argued for the systemic integration of rights due to their relevance and applicability. To further concretize adaptation obligations, the analysis focused on specific rights and the positive duties associated with them. It used the rights to life and to an adequate standard of living to demonstrate how integration can inform adaptation plans and policies and lead to action that addresses foreseeable risks to people and their enjoyment of these rights.Human rights duties can also help to clarify adaptation obligations of assistance and cooperation. These duties underscore the need for developed countries to provide support to developing countries in their adaptation efforts. For an understanding of adaptation obligations, this means that, at a minimum, financial support is required to help developing countries meet their core human rights obligations. The article concluded by arguing for the application of the operative principles of the treaty regime alongside the integration of human rights. Precaution plays a transformative role, to help ensure that human rights law is integrated earlier in the process of adaptation through anticipatory action, as well as through a timely and continuous support for such action. Equity and cbdr-rc bolster arguments that developed countries must assist developing countries in their adaptation efforts.Taken together, the interpretive process advanced here can provide guidance for states in the implementation of their adaptation obligations. The specific risks and vulnerabilities people face will vary, and thus much will depend on the context and on states’ understanding of their commitments and willingness to implement them. Yet, the relevance of rights, and their potential to inform adaptation obligations, is clear: climate change threatens a multitude of rights, and the foreseeability of these risks creates both the opportunity and the obligation to take action. This shifts the focus to an earlier point in time – the present – to take anticipatory action to plan for, and to put into place, the adaptation frameworks necessary to protect human rights.
Journal
Climate Law – Brill
Published: Jan 25, 2022