Achieving justice for the most vulnerable
The critical focus on the past year on climate change has put into light, with more and more evidence, its disrupting force in terms of environment, livelihoods, and economies. Additionally, and maybe still less explored, climate change is also a legally disrupting force. Each society is composed of a web of relationships, with law playing the role of a guideline as to what is accepted or not, and what justice looks like at a given time.
Climate change and its impacts have a direct effect on changing currently existing social dynamics, social organization, administrative structures, and creating a new legal risk that will have a direct implication on how certain laws will apply. It will also raise a new ethical question in terms of justice and how to adapt the current national legal systems to the overall changing conditions as to leverage law as a powerful tool of change for an equitable and climate-friendly society.
So far, most laws that could be related to the climate change concern are dealing with the question of limiting greenhouse gasses emission, leaving the pillars of adaptation and loss and damage underrepresented. We are today in a context of a vast legal “no men lands” when it comes to helping the most vulnerable communities to adapt to climate and reach for justice. Moreover, most debates related to climate justice and research is often located at the international scale, whereas the actual climate change and variables are met at the community level. Indeed, climate justice is a function of vulnerability which itself is due to the lack of capacity to adequately adapt or access “adaptation technology” to cope with affecting climate impact.
Thus, if we want actually to speak about climate justice, it requires legal practitioner and makers (in the broad sense) to reach to the most affected and vulnerable communities, listen to them and understand what they need and what indeed is a climate change impact. As such, coupling legal research with a community-based adaptation (CBA) process can help in achieving a better climate justice for the most vulnerable litigants.
Community-based adaptation is a relatively new approach that aims to strengthen the adaptive capacities of vulnerable local communities, via a participatory methodology and at the lower scale possible and with concern for sustainability and justice. The bottom-up approach of CBA can also contribute to help legally identify the subject of law that have the right (as well as obligations) for a better help to adapt to climate (channel financial resources, better access to climate services etc.), the one that need to be protected and helped by the considered adaptation law at the upper level.
Furthermore, the participatory approach of CBA can help define the content of the possible adaptation laws in a way that is adequate to the context and necessity of the communities. Indeed, in the CBA approach, the communities themselves define their own sensitivities and level of vulnerabilities to a given climate stressor.
This approach is also helping to directly include the communities in the adaptive solution design that respond in a better way to their concerns, motivation, goals, cultural context and build upon their knowledge, social networks, and expertise in coping with climate change. As such, this approach leads to a better definition of climate justice, one that gives the right to people to decide and choose how they want to adapt, the life they want to lead and receive adequate assistance for realizing it and observe actual positive results and feedbacks.
Additionally, both adaptation laws and CBA are factors of time and space. Indeed, CBA and law both aim to apply to a defined space, the one in which the communities are living. As for the time framework, adaptation laws aim for the future while the laws related to loss and damage investigate past or current events. Legal rules can repair past harm but also forbid or prescribe a specific action for the future.
In terms of adaptation, the law aims to help reorganize the functioning of society to help it cope with imminent climate threat, just like the CBA. Indeed, the overall goal of the future adaptation laws and CBA is to build the global resilience of communities for today and tomorrow, irrespective of whether a given climate impact comes today or in the future.
Another important beneficial outcome of coupling law research with CBA approach lays in need of proof in the litigation processes. Indeed, in each trial, each party must establish the facts by providing proof that can support beyond reasonable doubt the existence of the facts.
In case of adaptation to climate change, this means that the vulnerable communities, who want to go to court to claim their right to receive support for climate adaptation, must prove that it is affected by climate but also that a specific adaptive action is the best possible solution to address it. Therefore, there is a need for empirical evidence that will help support these kinds of claims and which can be found in the CBA research approach.
Finally, CBA can help in the effective monitoring of the effectiveness and impact of the new adaptive legal system on the adaptive capacity of communities. Indeed, this can be achieved by a long-term CBA process in which a regular self-assessment of vulnerabilities can help in evaluating the degree of lessening of a previously identified climate risk and thus evaluate the degree of impact of a given adaptation law or policy.
It is essential to understand what the fragility of a legal system is in responding to the need of the most vulnerable and examine whom climate change impacts those fragilities positively or negatively. Creating a new, more adapted legal system to climate change will also require coordination with other climate change law, to ensure they all fit together and create a closed loop of positive feedback.
CBA is one of the approaches that can help to mainstream into law the voice of the most vulnerable peoples. Of course, it is not without its challenges (ex: ensuring fair and broad community participation, community definition and scale, etc.), but can bring some answers as to how to modify our current national legal system to achieve a better climate justice than today.
Anne-Laure Pilat has a background in Public and European environmental law.