Tag Archives: climate change

Adapting Water Law to Public Necessity: Reframing Climate Change Adaptation… (R.K. Craig)

Author

Robin Kundis Craig ( Florida State University , USA )

Keywords

Climate Change, Adaptation, Water Law, Water Supply, Public Necessity, Communitarianism, Communitarian, Emergency, Preparedness

Abstract

As a result of both climate change and non-climate-change forces, fresh water supplies in many parts of the United States are approaching a state of crisis. This article suggests that both the law and public policy should embrace that reality.

Specifically, this article argues that viewing climate change impacts on water supply as an ongoing emergency could provide a more productive framework for initiating and implementing adaptation strategies. Classifying climate change’s impacts on water supply as a real crisis allows adaptation planning to become a form of emergency preparedness – concrete measures designed to deal with existing problems – underscoring the fact that the impacts are only likely to become worse in many parts of the country. Moreover, reframing climate change adaptation in the water context as emergency preparedness could productively shift the focus of adaptation strategies to the survival of communities as functional communities – that is, as something more than the mere physical survival of individual humans. Such reframing would also allow recognition that communities are coupled socio-ecological systems, dependent on the surrounding natural resources – like water – and the ecosystem services that they provide.

Reframing climate change impacts on water as an emergency, moreover, could provide needed flexibility both legally and politically. Legally, emergencies allow for the operation of the doctrine of public necessity, a common-law doctrine that may prove very useful in reallocating water rights, especially in times of significant drought. However, this article also argues that public necessity invokes a broader public policy regarding the relationship of individual rights and community well-being that should produce a politically powerful synergy in the context of adapting water law to climate change, given that water is already considered a semi-public natural resource.

Citation

(2010) 11 Vermont Journal of Environmental Law 709

Paper

Adapting Water Law to Public Necessity: Reframing Climate Change Adaptation as Emergency Response and Preparedness

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Climate Change and the Human Right to Water (L. Westra)

Author

Laura Westra

Keywords

Water as sacred, as human right, as commodity, biological integrity, indigenous peoples, globalization, climate change justice

Abstract

The author argues that earlier understandings of water as a sacred resource form an invaluable backdrop to contemporary reflections upon the damage caused by climate change, and can, moreover, be related to the modern concept of biological integrity. Linking climate change damage to the violation of human rights, in particular to the human rights of indigenous populations, the author offers a critique of the current failure to respond adequately to climate change damage, linking this to consumerism and globalization. She argues for the adoption of a focus on climate change justice that clearly enmeshes climate change and human rights, including the human right to water, which she argues should now be explicitly adopted as an international human right.

Citation

(2010) 1 Journal of Human Rights and the Environment 161

Paper

Climate Change and the Human Right to Water

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Phiri, the plight of the poor and the perils of climate change: time to rethink environmental and socio-economic rights in South Africa? (L.J. Kotzé)

Author

Louis J Kotzé

Keywords

Water resources, access to water, climate change, poverty, sustainability, constitution, socio-economic rights, environmental rights

Abstract

South Africa is a water-stressed country where scarce water resources are unequally available to South Africans. It seems inevitable that climate change will in future severely affect the availability of water resources and the ecological and socio-economic aspects of water uses in the country. It is especially the poor, indigent and marginalized sectors of the population that have inadequate access to water and it is these people who would also be most severely affected by the impact of climate change on water resources. While South African constitutional and statutory provisions guarantee everyone access to sufficient water, an environmental right and other laws simultaneously aim to protect water resources. There is accordingly a very real possibility for sustainability conflicts to arise where difficult decisions have to be made with respect to providing people access to sufficient water on the one hand and protecting water resources for the benefit of present and future generations on the other. The latter conflict was recently illustrated in the Constitutional Court judgment of Mazibuko v City of Johannesburg 2009 JDR 1030 (CC) . For the first time, South Africa’s highest Court was required to provide content to the constitutionally entrenched right of access to sufficient water. Against a general discussion of the state of water resources in South Africa, the predicted impact of climate change on these resources and the prevailing socio-economic conditions in the country, this article analyses the Court’s decision in Mazibuko and argues that its restrictive interpretation of the right to access to water could be considered ecologically responsible and conducive to achieving inter-generational equity.

Citation

(2010) 1 Journal of Human Rights and the Environment 135

Paper

Phiri, the plight of the poor and the perils of climate change: time to rethink environmental and socio-economic rights in South Africa ?

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Conscience and Interest: Law, Rights, and Politics in the Struggle to Confront Climate Change and the New Poverty (P.L. Joffe)

Author

Paul L. Joffe

Keywords

Global warming, sustainable development, international community, global public goods, politics, public interest, climate change, norms and morality

Abstract

In this article, I first explain how global warming has transformed the struggle to end global poverty and to achieve sustainable development. I suggest that the new situation creates special challenges due to the heightened need for global collective action to produce global public goods, namely unpolluted air and sustainable development.

I then address how the international community determines whether global collective action should be taken and what should be done, focusing in particular on the new poverty and global warming. This includes the history and role of treaties, policy initiatives, and human rights. To illuminate the nature of these and how they are related, I look back at some examples of thinking about rights and law during the seminal period of World War II and its aftermath.

Among other things, this history shows that our modern concept of human rights was heavily influenced by the desire of the United States and its allies during World War II to define the struggle in terms of the rights and freedoms for which the allies were fighting. Americans realized it is in our own national interest to recognize the rights of others. Today, in global warming, we face a new worldwide, revolutionary threat, but also opportunities, that demand unprecedented global cooperation. Unless we take prompt action, we face devastating impacts across the globe, with the poorest nations most exposed because they are less equipped to cope. On the other hand, if we undertake a far reaching transition to a clean energy future, we can reap the benefits of new technology, new sources of jobs, new markets, a cleaner and healthier environment, and stronger sustainable development worldwide.

To meet the threat and develop the opportunities, the international community has a jumble of fragmentary institutions, bits of hard law and large amounts of soft law, rights and obligations often indistinctly defined, and many policy initiatives of uncertain impact. I argue that confronting climate change presents a crisis of inadequacy for this system analogous to the crisis for international cooperation created by World War II. I urge the development of human rights law to help address the problems, but I also urge that we use treaties, policy initiatives, and human rights together to define the global public interest in confronting climate change and its impacts. The result may be a legal and policy landscape changed in some respects, but drawing on lessons of the past regarding the mobilizing force of the moral dimension of law.

Next, I look at the obstacles to collective action and the ways in which these obstacles can be overcome to achieve consensus on global warming, poverty, and sustainable development. This includes exploring how national and private interests can be adjusted to achieve the broader common good of the international community.

I argue that the effort to provide global public goods depends on a politics that creates space for the public interest. In confronting climate change, the public is discovering itself. It is discovering that, while citizens have private or group interests, they also have interests in common with everyone else. A law and politics of the public interest does not ignore narrow interests, but establishes a process to fairly accommodate both. The all-important question of how much weight to give to each and how to integrate them must take place through a democratic process. Approximating this on a global scale creates yet another great challenge.

Finally, I discuss the role of norms and morality and how they interact with interests in the effort to achieve collaboration needed to provide public goods. Increasingly, moral claims are raised on behalf of action to confront climate change. They play an important role in the field of human rights, which are based on ethical standards. Beyond modern human rights principles, however, I note that for centuries it was thought that morality was integral to the entire legal system and I suggest how we might learn from this as we try anew to address the common concerns of the international community.

Citation

(2009) 6 Rutgers Journal of Law & Public Policy 269

Paper

Conscience and Interest: Law, Rights, and Politics in the Struggle to Confront Climate Change and the New Poverty

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Global Climate Governance to Enhance Biodiversity and Well-Being … (A. Long)

Author

Andrew Long (Florida Coastal School of Law, USA)

Keywords

Climate change, biodiversity, forests, well-being, certification, REDD

Abstract

Environmental governance frequently represents a leading edge of global regulation. The climate regime even continues to create new modes of regulation despite a negotiation impasse. These new initiatives, like existing legal approaches to environmental challenges, too often embrace a fragmented view of issue areas that fails to reflect fundamental connections between the objects of regulation. The shortcomings of a state-driven international issue-by-issue approach to global environmental governance have long been obvious in some areas (such as tropical forests), and are becoming ever clearer in others (most notably climate change). Therefore, private networks play an increasingly important role in global environmental governance, as illustrated most directly by forest certification that was developed to fill a gap left by negotiation failures of the 1990s. These prior failures also laid the groundwork for tropical forests to become an object of climate regime regulation, giving rise to one of the most promising and innovative programs for generating a much-needed new approach to global environmental governance more broadly. The reduced emissions from deforestation and degradation (REDD) program holds out the promise of not only reducing greenhouse gas emissions in the forest sector, but also promoting public goods associated with biodiversity and human well-being. Nonetheless, REDD remains incompletely formed and fragile. An over-emphasis on mitigation, which seems likely given REDD’s climate regime origins, may prove self-limiting or even self-defeating for the program. In response to this concern, and the need for greater recognition of issue-linkages in designing global environmental regulation generally, this article proposes a novel hybrid public-private governance approach to REDD that can encourage maximum emissions reductions while also effectively promoting a broad array of benefits for biodiversity and human well-being. In so doing, the article also offers an innovative and generalizable model for combining private market finance and public funding to increase the coherence and effectiveness of global environmental regulation.

Citation

(2011) 41(1) Environmental Law

Paper

Global Climate Governance to Enhance Biodiversity & Well-Being: Integrating Non-State Networks and Public International Law in Tropical Forests

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