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How Can International Environmental Law Reduce Disaster Risk? Destruction from Typhoon Haiyan in the Philippines, Nov. 2013 - Wikimedia Commons Prepared by Jacqueline Peel and David Fisher June 2015

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How Can International Environmental Law Reduce Disaster Risk?

Destruction from Typhoon Haiyan in the Philippines, Nov. 2013 - Wikimedia Commons

Prepared by Jacqueline Peel and David Fisher

June 2015

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This report summarizes the insights, lessons and key findings of a workshop on “How Can International Environmental Law Reduce Disaster Risk?” held at Stanford Law School on May 21-22, 2015. The report was prepared by Jacqueline Peel, a Visiting Scholar with Stanford Woods Institute for the Environment and a law professor at the Melbourne Law School, University of Melbourne, Australia and David Fisher, Coordinator of the Disaster Law Programme for the International Federation of Red Cross and Red Crescent Societies. It contains the authors’ analysis of the overall workshop findings but does not purport to fully represent the individual views of any particular participant. The workshop was sponsored by the Stanford Environmental and Natural Resources Law and Policy Program with co-sponsorship provided by the American Society of International Law (International Environmental Law and Disaster Law Interest Groups), the International Federation of Red Cross and Red Crescent Societies, the United Nations Environment Programme, the Stanford Journal of International Law and the Stanford Program in International and Comparative Law. The Stanford Journal of International Law intends to publish several of the papers from the workshop in an upcoming issue and an edited volume with more of the workshop’s papers is also currently being explored. Workshop speakers Meg Caldwell, Deputy Director, Oceans, David and Lucile Packard Foundation Jacqueline Peel, Visiting Scholar, Woods Institute; Professor, Melbourne Law School David Fisher, Coordinator, Disaster Law Programme, International Federation of Red Cross and Red

Crescent Societies Dan Farber, Sho Sato Professor of Law and Co-director, Center for Law, Energy and the Environment,

Berkeley Law School Lisa Grow Sun, Associate Professor, BYU Law School Rosemary Lyster, Professor of Climate and Environmental Law, Sydney Law School David Titley, former director US Navy Taskforce on Climate Change and Professor of the Practice, Center

for Solutions to Weather and Climate Risk, Penn State Rob Verchick, Gauthier-St. Martin Chair in Environmental Law, College of Law, Loyola University Cinnamon Carlarne, Professor, Michael E. Moritz College of Law, Ohio State Nicholas Robinson, University Professor on the Environment and Gilbert and Sarah Kerlin Distinguished

Professor of Environmental Law Emeritus, Pace Law School Michael Faure, Professor of Comparative and International Environmental Law, Maastricht University Carl Bruch, Senior Attorney and Co-Director, International Programs, Environmental Law Institute Neil Popovic, Partner, Sheppard, Mullin Richter & Hampton LLP, San Francisco; Lecturer, Berkeley Law

School A. Dan Tarlock, Distinguished Professor of Law, Chicago-Kent College of Law Denis Edwards, Barrister, Middle Temple; Visiting Professor of Law, DePaul University College of Law Lesley Wexler, Professor, University of Illinois College of Law John Knox, Professor, Forest Wake Law School; UN Special Rapporteur on Human Rights and the

Environment Mary Picard, Disaster Risk Management consultant Hari Osofsky, Professor, University of Minnesota Law School Anne Siders, PhD candidate, Stanford Emmett Interdisciplinary Program for Environment and Resources Muralee Thummarukudy, Chief of Disaster Risk Reduction, United Nations Environment Programme Melchiade Bukuru, Chief of the Liaison Office of the United Nations Convention to Combat Desertification Anastasia Telesetsky, Associate Professor of Law, University of Idaho

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INTRODUCTION: ENVIRONMENTAL LAW FOR DISASTER RISK REDUCTION Natural disasters are taking an ever-higher toll, both in human and economic terms. This is partly due to acceleration in the number and intensity of weather-related hazards, such as hurricanes, fires and floods, compounded by climate change. However, it is also attributable to increasing exposure and vulnerability of communities – particularly those located in the growing informal settlements around large urban areas. The factors that contribute to this vulnerability and exposure are directly affected by human choices, and therefore, in theory, amenable to regulation. Yet, while the economic, social and policy toolkit for preventing disasters has grown enormously in recent years, the use of legal tools to combat risk and vulnerability is still in its infancy. In contrast, the field of environmental law – both at the domestic and international levels – has developed enormously over the last 40 years. For the most part, environmental laws are focused on mitigating the risks that human behavior poses to nature – reducing “man-made disasters”, such as toxic contamination and pollution, degradation of air and water, and destruction of species and habitats. With the dawning recognition that “man-made” and “natural” disasters are categories that should not be so strictly separated, the question arises whether environmental law is, or can be, more relevant to the latter category. Disaster law is a new and rapidly developing field of international law. Most disaster-specific treaties have tended to focus on response – particularly international response. The international community has only recently begun to engage with the question of disaster risk reduction, and the role of international law in helping to prevent disasters or mitigate the damage they cause. This workshop was the first international scholarly event to consider what international law, particularly in the environmental field, offers for global aims of disaster risk reduction. It considered both high-profile immediate disasters, such as hurricanes and storms, as well as long-term disasters, such as drought and land degradation or acidification of the marine environment and loss of fisheries, all of which are exacerbated by climate change. The workshop aimed to highlight ways that bridges could be built between the fields of environmental law and disaster law to provide a more holistic international legal response to disaster risk. Papers and presentations by participants evaluated the degree to which existing international environmental law instruments already contribute, or can be repurposed, to assist in reducing the risks of disasters. A few such instruments expressly refer both to man-made and natural disasters. Others have broad language that could be (and sometimes have been) interpreted to extend to natural disasters. The same is true of many domestic laws. Participants also assessed the extent to which legal approaches and principles elaborated in the field of international environmental law might be useful by analogy in disaster-specific laws and instruments and – conversely – whether methods developed in disaster law might be helpful for environmental lawyers. The following sections briefly describe the workshop proceedings that were organized around five main themes:

- defining disaster; - understanding disaster risk in the context of climate change; - environmental legal tools for disaster risk reduction; - coordinating and linking institutions and their work; and - retasking environmental treaties for disaster risk reduction.

DEFINING DISASTER An initial topic of discussion at the workshop was what we mean by “disaster” and how that affects legal and institutional approaches. In international and domestic legal systems distinctions have often been drawn between different categories of disaster only some of which have been the focus of disaster law and risk management. For instance, disaster risk management has tended to target short-term, high-impact events such as hurricanes, floods and earthquakes but often neglected long-tail events such as drought and desertification. In addition, disasters have often been classified as either man-made (the province of environmental law) or “natural” disasters (the focus of disaster law). However, over the last two decades, a global consensus has developed among practitioners and scholars about the importance of the human

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contribution to “natural” disasters and it is starting to be expressed in policy. The workshop participants canvassed whether distinctions between different types of disasters were still useful for international law. They also considered the opportunities and drawbacks that might arise from promoting greater synergies between international environmental and disaster law.

Professor Dan Farber discusses concepts of disaster and disaster law in the “Anthropocene” Participants in Panel 1: How do we define disaster emphasized the considerable blurring in contemporary practice of the line between natural and technological or man-made disasters, particularly in an era of rapid climate change. As Dan Farber, Sho Sato Professor of Law at Berkeley Law School, put it: “It will become increasingly hard to find an extreme weather event that can be confidently attributed purely to nature.” By the same token, he saw the integration of disaster risk reduction into climate change instruments to be the most promising venue for disaster law to achieve greater codification at the international level, though he acknowledged that this might carry the risk of privileging climate-related disasters over those with other causes. Professor Rosemary Lyster, Professor of Climate and Environmental Law at Sydney Law School, decried the lack of a comprehensive international instrument on disaster law but highlighted the potential of applying Sen and Nussbaum’s “Capabilities Approach” to understand disaster risk in a climate change context. She postulated that climate disasters “fundamentally destroy and undermine human and non human Capabilities,” enhance vulnerability and exposure to climate risk and reduce adaptive capacity and resilience. Even as we acknowledge the fraying of the natural/man-made disaster boundary, it was clear that the terms still retain salience for many audiences. Associate Professor Lisa Grow Sun of BYU Law School spoke eloquently about different “narratives” associated with disaster risk and the alternative social framings and responses that go along with them. For example, she highlighted sociological research showing the development of “therapeutic communities” in the aftermath of disasters seen as “natural” but “corrosive communities” – characterized by fragmentation, distrust in institutions and litigation – in the wake of “man-made” disasters. She also noted the cultural disconnect between environmental and disaster related narratives – with the latter tending to focus on risk to the built environment and the former more concerned with the “green” environment. She speculated whether, if we accept a growing human role in causing “natural” disasters, we might also be persuaded towards more interventionist, human-engineered solutions such as geoengineering. CLIMATE CHANGE ADAPTATION AND DISASTER RISK REDUCTION Climate change brought about by anthropogenic greenhouse gas emissions has been identified as a key factor in blurring lines between natural and man-made disaster risk. This has brought climate change law and disaster risk reduction into ever-closer contact at both the domestic and international levels. This is evident in international disaster risk reduction instruments such as the Hyogo Framework (2005) and its

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successor the Sendai Framework (2015) and in the activities of national governments. For instance, in welcoming participants to the workshop, Meg’s Caldwell, Deputy Director, Oceans at the Packard Foundation highlighted recent guidelines introduced by the Federal Emergency Management Agency (FEMA) that will require states applying for disaster preparedness funds to produce hazard mitigation plans that incorporate climate change risk and measures to increase resilience in the face of a changing climate. Participants discussed questions around where disaster risk reduction sits within international climate change arrangements and the extent to which it overlaps with climate change adaptation. They also examined the degree to which other international mechanisms, such as financing of climate adaptation and development activities, and ensuring human security, address these issues in a coherent manner. Former Rear Admiral David Titley, now a Professor of the Practice with the Center for Solutions to Weather and Climate Risk at Penn State, opened the proceedings for Panel 2: Understanding disasters in the context of climate change. His presentation highlighted the human dimension of climate change and implications for human security and naval operations through impacts such as greater opening up of the Arctic to shipping, sea level rise and ocean acidification. The presentations of Rob Verchick, Loyola University, and Cinnamon Carlarne, Ohio State, both emphasized the increasing cross-fertilization between the areas of climate change adaptation and disaster risk reduction. Professor Verchick highlighted learnings from the disaster risk reduction field (the moral imperative of protecting human capabilities and local vantage working from the ground up) and climate change adaptation (with its emphasis on responsibility of polluters for providing funding assistance) and how they might usefully be combined to enhance both resilience and justice. Professor Carlarne turned specifically to the international mechanisms for financing climate change adaptation and disaster risk reduction. She noted that despite the fact that there is a wide array of international climate change adaptation funds, they collectively represent many fewer resources than needed, they lack coordination and coherence, and they are subject to equity gaps – with most support going to medium-income countries – leaving countries most at risk with the least support. Similar gaps have been noted in international funding for disaster risk reduction.

Panel 2 participants: Anne Siders (moderator), David Titley, Rob Verchick and Cinnamon Carlarne ENVIRONMENTAL TOOLS FOR DISASTER RISK REDUCTION A major aim of the workshop was to examine what tools and approaches environmental law might offer for achieving goals of disaster risk reduction. Two panels considered different aspects of this topic. First, Panel 3: Dealing with the aftermath of disasters looked at the tools international environmental law and international institutions offer to deal with the aftermath of disaster events. The panel considered how tools and principles of environmental law, including liability and compensation mechanisms, might function to allow knowledge and experience from present disasters to feed into planning for future disasters. Professor Nicholas Robinson of Pace Law School highlighted the potential of general environmental principles of cooperation, precaution and foresight and mechanisms like environmental impact assessment

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(EIA) in this regard. His conclusion was that we have the tools available to take preventative action to reduce disaster risk but that there is not yet a strong sense or call for merging the disaster and environmental law communities that would facilitate this application. Professor Faure of Maastricht University examined existing liability and compensation mechanisms in international environmental law treaties in the fields of nuclear accidents, water pollution and aviation disasters, noting that, as currently structured and implemented, they do not always create good economic incentives for disaster risk reduction. On the positive side, these instruments’ implementation of strict liability and of financial guarantees by the relevant industries has added value, but the approach of channeling and capping liability has sometimes served industry’s interests to the exclusion of those impacted by disasters. In both senses, the oil pollution scheme seems to have been more protective and successful than that for nuclear accidents, despite significant public attention to the impacts of nuclear disasters. Finally Carl Bruch from the Environmental Law Institute presented results from a survey of international frameworks governing the response to environmental emergencies. This analysis, echoing other presentations, highlighted the diversity and lack of coherence in existing arrangements as well as the existence of substantive gaps on issues such as land-based marine pollution, the response to disasters arising from complex emergencies, and response to so-called “natechs” – natural disasters that precipitate technological disasters (e.g. the Great East Japan earthquake and tsunami leading to the Fukushima nuclear reactor failure).

Professor Michael Faure presents on liability and compensation tools The second panel, Panel 4: Fitting legal institutions and tools to the challenge focused more specifically on tools for front-end disaster risk reduction. As moderator Neil Popovic succinctly put it, a key question for the panel was whether we should simply look to adapt existing tools to apply them to disaster situations (in which case we might face the problem of square pegs in round holes) or use existing tools as the basis for creating new mechanisms (carrying its own problems of a lack of commitment to new treaty making – “convention fatigue” in Carl Bruch’s words – and being seen to admit the failure of existing tools). Presentations and comments by participants highlighted both aspects of this dilemma. Professor Dan Tarlock, Chicago-Kent Law School, took up the challenge of identifying how principles and mechanisms of international water law might be applied to the mitigation of three water-related disasters: flood, drought and aquatic ecosystem collapse. He observed that while some water treaties address the latter risk, few expressly tackle the first two. He proposed that novel combinations of existing water law principles, such as equitable use and duties of cooperation, could be used to fashion more robust laws for mitigation of drought and flood risk. Barrister Denis Edwards’ presentation looked at the lessons from European Union environmental law for disaster risk reduction. Although emphasizing a lack of systemization in the EU approach he also drew attention to recent developments that show nascent efforts by the EU to integrate disaster risk reduction into traditional environmental law tools like EIA. Finally,

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Professor Lesley Wexler of the University of Illinois College of Law suggested the potential for cost-benefit analysis as a way of valuing foreign lives in support of policy decisions related to the allocation of disaster assistance to foreign countries. While acknowledging some limitations in the tool, she saw its value in keeping foreign lives “on the table” in national decision-making about the benefits of overseas disaster assistance. In his keynote address later that evening, Professor John Knox, United Nations Special Rapporteur on Human Rights and the Environment, pointed to human rights as another area of international law with much to contribute to making people safer from disasters. He traced the development of the concept of the right to a healthy environment, which, while absent from the key international treaties, has gained increasing adherence, in particular through national constitutions. He pointed to the European Court of Human Rights’ decision in the Budayeva case as a similar development in the area of disaster risk reduction – with a holding that states can violate the rights to life and property if they fail to take action in the face of “natural” risks. COORDINATION AND LINKAGE OF INSTITUTIONS A consistent theme of presentations on the first day of the workshop was the current lack of integration and coordination of disaster risk reduction activities and the work of environmental treaty bodies and institutions working in similar areas. Panel 5: Coordinating and linking institutions and their work directly addressed this issue, examining how synergies might be developed among institutions charged with fostering preparedness to deal with environmental harms and those with goals of disaster risk reduction. Also emerging from the discussion was the idea that a diversity of institutional approaches – or more pejoratively “fragmentation” – might not always be a problem, especially where some institutional settings offer opportunities for making great progress on climate change and disaster risk reduction than others. Anne Siders discussed the post-2015 agenda – encompassing the Sendai Framework on Disaster Risk Reduction, the negotiation of sustainable development goals and the upcoming round of climate change negotiations at the Paris Conference of the Parties to the United Nations Framework Convention on Climate Change. She highlighted that there are still significant differences between the disaster and environmental communities in how they understand fundamental concepts such as “resilience.” Her analysis of the outcomes of the Sendai conference also showed how the injection of concepts from the climate change regime, such as the principle of common but differentiated responsibilities, had created controversy and arguably led to weaker commitments in the 2015 document compared to the original Hyogo Framework ten years earlier. Mary Picard’s presentation on institutions for water management in the Southern African Development Community highlighted the potential of new bodies created under water treaties to incorporate disaster risk reduction in their work, if that is made a priority for action. Her presentation also illustrated how the incorporation of broad language on climate change and principles from international environmental law and water law may be the basis for evolving treaty practice that can address water-related disaster risks, even if this may not have been the original intention in development of the treaties. Finally, Professor Hari Osofsky’s presentation on Arctic regulation took participants to a very different part of the world but highlighted similar themes of institutional fragmentation or “multi-polarity”. Professor Osofsky noted that in the Arctic, climate change is enabling greater access to resources but the physical constraints of the Arctic environment also enhance the potential for disastrous accidents. Her presentation drew attention to examples of “hybrid cooperation” in Arctic regulation which she described as involving (1) interaction among diverse public and private stakeholders across multiple levels of government and (2) incorporation of other actors’ regulatory behavior or inclusion of multiple actors in institutional decision making.

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Stanford PhD student, Anne Siders, speaks on the post-2015 disaster-related international agenda RETASKING ENVIRONMENTAL TREATIES FOR DISASTER RISK REDUCTION The final panel of the workshop took a different format. The participants – Muralee Thummarukudy of the UNEP Disaster Risk Reduction office, Melchiade Bukuru, Chief of the Liaison Office of the United Nations Convention to Combat Desertification, and Associate Professor Anastasia Telesetsky – an expert on law of the sea – offered their perspectives on how existing international environmental laws could be better implemented or elaborated to reduce disaster risk. Muralee Thummarukudy discussed the rationale of UNEP’s increasing focus on disaster risk reduction through retasking existing environmental treaties, and some of the lessons learned. He highlighted, in particular, the benefits of such integration exercises in reaching a new constituency in governments often absent in discussions about risk reduction and the capacity to achieve greater scale by working within the framework of already widely ratified treaties such as the Convention on Biological Diversity and the Ramsar Wetlands Convention.

Muralee Thummarukudy (center) spoke about UNEP activities to incorporate disaster risk reduction Melchiade Bukuru thanked the workshop organizers for raising the issue of long-tail events like drought and desertification as a “disaster” risk. He emphasized the role of land degradation in exacerbating vulnerability to disaster and the disproportionate impact of drought on certain groups such as women and children. Bukuru did not believe, however, that addressing these disaster risks required significant changes to treaties like the United Nations Convention to Combat Desertification (UNCCD); rather what was required was better implementation of extant treaty requirements. Bukuru also mentioned two “good news” stories

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as far as drought and land degradation were concerned. First, the UNCCD Secretariat was supporting countries that are prone to drought to develop drought policies. Second, the international community is poised to adopt a sustainable development goal and associated target on land degradation. He ascertained that this move would strengthen the resilience of affected populations and ecosystems vis-à-vis natural disasters. Anastasia Telesetsky surveyed the capacity of treaties dealing with pollution of the marine environment from land-based sources to respond to the risks of ocean acidification and hypoxia. She noted that the lack of action to address these problems under existing regional seas treaties is mainly due not to a lack of recognition of the issue but rather a lack of a sense of urgency. Her suggestion was that environmental treaties in this field might benefit from a disaster risk management approach; in essence, reframing hypoxia in the oceans from land-based pollution as a disaster could instill a greater sense of urgency to act under existing frameworks to make progress on the problem. CONCLUSION AND NEXT STEPS The title of this workshop was How Can International Environmental Law Reduce Disaster Risk? At the conclusion of the workshop there was widespread agreement among participants that there is a significant, under-utilized potential for international environmental law instruments and mechanisms to contribute to reducing disaster risks. The workshop proceedings offered some important messages for disaster risk reduction efforts moving forward and how they might utilize environmental principles and tools. They included:

- endorsement of the idea that disaster risk reduction is the concern of both environmental and disaster law and that the gap between each sphere is narrowing as understanding of the human contribution to natural disaster risk grows;

- recommendations for exploring greater application of international environmental law instruments and mechanisms to contribute to reducing disaster risks, including through existing environmental law treaties;

- recognition that significant fragmentation exists, that environmental law and disaster law are still very separate communities, and that efforts should be made to consolidate efforts, bearing in mind that not all separation is negative;

- hesitation over endorsing broad goals like “resilience” as a template for integration of disaster, climate and environmental activities; in sum while “resilience” can be a useful term for public and political communication exercises it offers little as a prescription for on-the-ground disaster risk reduction activities.

Participants and observers at the Stanford Disaster Law Workshop