Vulnerability and the Climate Change Regime.

Author:Mboya, Atieno

Climate change is precipitating social issues that are not traceable to a discreet, culpable actor. This is because greenhouse gas accumulation in the stratosphere is a global problem transcending the socio-political boundaries that law uses to assign responsibility. The diffuse nature of climate change calls for new legal approaches that can provide greater juridical responsiveness (1) to social problems and universal human vulnerability that is emerging in the wake of one of the most pressing environmental challenges facing the international community today. (2) Those social problems include displacement and dispossession of indigenous communities whose livelihoods depend directly on their environment, such as Arctic communities in Alaska, rural dwellers in the Himalayas, livestock farmers in the Kalahari, and forest-dwellers in the Amazon. (3) Farming communities reliant upon rain-fed agriculture also face food insecurity due to changing, unpredictable rainfall patterns. (4) While social impacts may be most keenly felt at the local level, the global nature of climate change means that jurisprudential bases of law at all levels-local, national, regional, and international (5)--need to promote coherent legal responses that recognize the global genesis of what may be seen as localized problems.

This essay will draw on human vulnerability theory to discuss law's role in promoting social justice in the wake of climate change. Vulnerability is the "characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between the state and its institutions and the individual." (6) Vulnerability theory critiques the contemporary understanding of "the legal subject," which is built on an ideology that values liberty over equality and manipulates contractual concepts such as choice and consent to justify exploitation and structural inequality. (7) That inequality has distorted and constrained the conception of the legal subject into a narrow and limited autonomous subject that is at the center of the analysis that law uses to organize society. (8) Human vulnerability theory calls for enriching the legal subject by placing it in social context, and engaging with its complex and dynamic characteristics.

The paper is divided into five Parts. Part I provides an overview of human vulnerability theory. Part II presents a vulnerability perspective on liberalism and neoliberalism, two theories that underlie the current global climate regime. Part III examines the concept of vulnerability in the climate discourse, while Part IV applies human vulnerability theory to the global climate regime. The final part states the conclusions.

TABLE OF CONTENTS I. Human Vulnerability Theory II. Liberalism and Human Vulnerability III. Vulnerability in the Climate Regime IV. Human Vulnerability Analysis and the Climate Regime CONCLUSIONS I. HUMAN VULNERABILITY THEORY

Human vulnerability analysis is a mode of studying law and institutions. It draws from empirical realities of the human condition, situating the legal subject as a complex, multifaceted person whose engagement with the law is normally begins at birth (through birth registration, for example) and continues into childhood, adolescence, adulthood, and old age. At each stage, a constant characteristic of the human condition is that of vulnerability, which arises from physical embodiment. This vulnerable subject, it is posited, should be regarded as the true subject of law and placed at the center of state and institutional programs whose role is to foster resilience across the life-span. In this context, resilience is best understood as the capacity to withstand or survive harm, deprivation, or injury.

The vulnerable subject is a legal entity that transcends the autonomous, independent, liberal legal subject that captures just one stage in the life course--that of the independent adult at the peak of physical resilience. When placed at the center of political and social endeavors, the vulnerable subject expands current ideas of state responsibility that revolve around a static legal subject, and refocuses the state toward responsiveness to the dynamic social and material lives of vulnerable subjects embedded in social relationships and institutions. (9) This calls for incorporation of the inevitability of change into the political project of conceiving the legal subject, thereby creating a complex subject to guide the way we define individual, institutional and state responsibilities. This approach provides a basis for questioning and critiquing current allocations of responsibility for individual and societal well-being across the individual, the state, and societal institutions. (10)

Vulnerability theory sees resilience as not merely a response to tragedy or injury, but as how we generate individual and collective well-being during all stages of life. The State and societal institutions are at the heart of fostering human resilience, a perspective that compels us to ask: Which institutions should provide resources to support human flourishing while encouraging environmental sustainability? The central issue involved is how we arrange our social institutions for successful environmental management, which requires balancing our natural resource extraction needs with conservation.

Resilience, therefore, is measured only in part by an individual's ability to survive or recover from harm or setbacks that inevitably occur in one's lifetime. Rather, resilience has important positive implications for individual and social progress as well. Resilient individuals can form relationships, undertake transactions, take advantage of opportunities, and take risks, confident that they will likely have the means and ability to recover should they fail such challenges or meet unexpected obstacles. In other words, resilience allows us to respond to life--to not only survive, but thrive within the circumstances in which we find ourselves.

The inequality of resilience is at the heart of vulnerability theory because it focuses us on society and social institutions. Human beings are not seen as more or less vulnerable because they possess certain characteristics or are at certain stages in life; rather, they experience the world with differing levels of resilience based on their relationship with the state, societal institutions, and the assets each confers. Those assets or resources can take five forms: physical, human, social, ecological or environmental, and existential. Nobody is born resilient. Rather, resilience is produced within and through institutions and relationships that confer socio-economic support, privilege, and power. Those institutions and relationships, whether public or private, are at least partially defined, legitimized and reinforced by law.

Human vulnerability analysis focuses on the role of the state and institutions in mitigating "vulnerabilities inherent in bioand socio-materiality" (11) of living on Earth, especially the state's role in allocating assets that promote socio-economic resilience. The paradigm seeks to deepen "ethico-juridical responsiveness to the complexity, affectability and vulnerability of the living order and of the multiple beings co-constituted by and within it" (12) by engaging the physical vulnerability common to all human beings as the foundational theoretical premise for law and order. universal physical vulnerability should be the starting point for the creation of more equitable institutional responses to socioeconomic issues. (13)

The theory holds that vulnerability arising from physical embodiment is a common, constant, and shared condition among all human beings, regardless of social status or geographic location, a vulnerability that should be understood not just as a potential source of harm and injury, but also as a generative and creative condition that propels us to form relationships and build institutions that strengthen our individual and collective resilience. Through the generative aspect of vulnerability, it is possible to craft "an alternative foundation for legal and political subjectivity" (14) that is responsive to claims for justice from all strata of society and that does not privilege the more resilient, wealthier subjects, over the less resilient. In this context, vulnerability is defined as "the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between the state and its institutions and the individual." (15)

The theory explores "the commonalities of the human condition--most centrally the universal vulnerability of human beings and the imperfection of the societal institutions created to address that vulnerability." (16) Its aim is to promote the establishment of a just society, taking a life-cycle perspective of the individual and a collective perspective of the society in which the individual lives. Every individual faces unique vulnerabilities at various stages in their life. For example, children and the elderly are more dependent on others in meeting their daily needs. Similarly, all members of any given society also face a collective, constant vulnerability to harm or injury arising from their positions with respect to each other and to other groups, with their resilience increasing based upon the collective's organizational capacity and availability of assets.

In the context of climate change, individual vulnerability to severe and unpredictable weather events (such as infant and elderly deaths from heat waves, or injury and even death for Inuit traveling routes with unexpected ice melts) exists alongside collective vulnerability. Thus, a society itself can be vulnerable and must therefore acquire resources that can be used to build resilience or the long-term ability to recover from such severe environmental situations. The state's ability to provide emergency resources in...

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