IBA report on climate adaptation focuses on legal aspects to bring about successful implementation

A report published by the International Bar Association (IBA) sets out the critical legal aspects of climate change adaptation and how, specifically, policy can play a crucial role in strengthening resilience and shaping the effectiveness of reducing people’s vulnerability to the harmful effects of climate change. Emphasis is placed on the importance of pursuing integrated, multidisciplinary, multilevel approaches and good governance, as well as how climate adaptation can complement climate mitigation in achieving the goals of the Paris Agreement – the international treaty on climate change.

Titled Legal Aspects of Climate Change Adaptation, the 200-page report was drafted by the IBA Working Group on Climate Change Adaptation (the ‘Working Group’), a specially convened group of legal scholars and practitioners who trained research on three core areas considered to be the most pressing for successful adaptation: migration, food security and technology transfer. Illustrating these different aspects are case studies on food security and fisheries in the Indian Ocean, desalination and the use of labour mobility to boost climate resilience.

David W Rivkin, former IBA President (2015-16) and Partner at Debevoise & Plimpton, who formed the Working Group, commented: ‘We hope that this report will contribute to the groundswell of work aimed at ensuring the Paris Agreement climate targets are achieved. Climate adaptation is an important companion to climate mitigation in bringing some stability to the climate crisis. But, for climate change adaptation mechanisms to be successful, it is necessary to comprehend fully the nature and impact of interlinking concerns, including, for example, the lack of food security being a major driver of migration as drought or floods brought about by climate change pressure rural inhabitants to move to urban areas.’

Katrina Kuh, Haub Distinguished Professor of Environmental Law, Elisabeth Haub School of Law at Pace University, said: ‘So many factors will determine how successfully a nation will be able to implement any of the recommendations included in the report. So many factors could impede change, including war or endemic poverty. And, with climate change itself being a destabilising force, it could hamper the implementation of adaptation policy as attention is diverted towards dealing with its immediate effects. Therefore, cooperation is essential at all levels local, national and international so that, for example, if policy makers were to link existing labour policies, migration agreements and climate adaptation strategies through better coordination and collective efforts, climate-related migrants could be prevented from entering the informal economy or exploitative forms of employment abroad. A more holistic approach towards harnessing the full potential of the tools and laws already in existence and the creation of new policy where required is what is being recommended in the report.’   

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The Legal Aspects of Climate Change Adaptation report is divided into three chapters:

• Chapter 1: Climate change-related migration and displacement examines the impact of climate change on human mobility and legal responses; labour mobility and regional climate adaptation; and climate change and internal displacement.
• Chapter 2: Food security addresses issues including the interlinkages between climate change and food security; food systems’ impact on climate change; the complexity of food security as a climate change adaptation issue; and the right to food. The chapter also includes recommendations to strengthen existing governance and legal frameworks and a case study on food security and fisheries in the Indian Ocean.
• Chapter 3: Technology transfer provides an overview of financing technology transfer; mechanisms for engaging private finance; accounting for climate finance in support of technology transfer; international investment agreements and technology transfer; as well as a case study on desalination.

The report contains a comprehensive set of recommendations to assist states party to the 2015 Paris Agreement meet global warming reduction targets through climate change adaptation. The recommendations broadly fall into the areas, as per the chapters, of climate change-related migration and displacement, food security and technology transfer. Some recommendations are aimed at international organisations because of their enormous potential to influence and/or effect change.   

Under the various headings, the recommendations include:

Climate change-related migration and displacement

• Start a dialogue – at regional or international level – on locations for the long-term resettlement of populations unable to return home due to climate damage;
• Revise disaster risk management (DRM) laws and policies to ensure that they include mandates and processes for understanding and identifying climate displacement risk and ensure that technical and scientific bodies responsible for providing weather, climate, hydrological, and environmental monitoring and prediction services have sufficient human, financial and technical capacity; and
• Ensure that systems are in place to communicate hazards at the local level and empower local governments and communities, as well as vulnerable and disenfranchised groups, to be involved in their own risk management.

Food security

International organisations should:

• Work to improve the degree of coordination among the relevant international legal frameworks and regime complexes to identify and mitigate negative impacts on food security;
• Use the Universal Periodic Review and submit reports of their own to specific treaty bodies to systematically assess and highlight the links between climate change, energy, trade and human rights; and
• Establish, at a domestic level, the necessary framework to monitor progress towards the United Nations Sustainable Development Goals, select the adequate indicators, consider the right to food as a key issue and assign sufficient resources to the task.

States should:

• Seek innovative ways to promote:
  • the organisation of small food producers to manage the challenges arising from the concentration of the agrifood market;
  • investment in smallholder agriculture, including by facilitating access to financial markets; and
  • sustainable agriculture and social movements supporting it.
• Reform agricultural policies (in middle-income and high-income countries) to eliminate market distorting subsidies to production and exports of agricultural produce;
• Continue monitoring the negative impacts of the financialisation of agricultural markets on food security and take measures to avoid negative side effects on the environment and human rights; and

• Fully integrate interactions between climate change and food security in National Communications to the United Nations Framework Convention on Climate Change (UNFCCC).

Technology transfer

International institutions, national legislators, regulators and other standard-setting bodies should:

• Consider including:
  • technology transfer requirements in the criteria that they develop for standards for green loans or awarding preferential lending rates by public bodies for green loans when designing public sector initiatives;
  • technology transfer in reporting requirements in their efforts to integrate environmental and sustainability goals in financial reporting; and
  • a technology transfer requirement as criteria are developed for awarding adaptation tax credits for developers of adaptation projects.

To better identify and quantify climate financing, the Working Group recommends that stakeholders:

• Continue to develop, through a transparent process, an appropriate and comprehensive methodology for accounting for flows of climate finance, including adaptation and private finance; and
• Reference technology transfer and the principles developed by the Technology Mechanism in methodologies to account for flows of climate finance. The United Nations Framework Convention on Climate Change Technology Mechanism and the Financial Mechanism can coordinate to support countries in implementing mitigation and adaptation.

Regarding the international investment law (IIL) regime, the Working Group:

• Endorses reform of the IIL regime to promote technology transfer, including by allowing the use of performance measures and state regulation to condition foreign direct investment; and

• Encourages states to be mindful of the importance of retaining the flexibility to impose performance requirements for other state regulation supportive of adaptive technology transfer in future trade or investment agreements.

The Legal Aspects of Climate Change Adaptation report is a call to governments and international organisations to take a step back, look at the bigger picture, and implement those changes that will make a difference. It follows the 2014 IBA  seminal report ‘Achieving Justice and Human Rights in an Era of Climate Disruption’, the 2020 IBA Climate Crisis Statement and the 2020 IBA Model Statute for Proceedings Challenging Government Failure to Act on Climate Change, which highlighted routes to justice for ordinary citizens affected by climate change.

ENDS