Construing Climate Change Adaptation as Global Public Good Under International Law: Problems and Prospects

Abstract

Article 7 of the Paris Agreement recognizes that adaptation is a ‘global challenge faced by all with local, regional and international dimensions.’ It further establishes the ‘global goal on adaptation focusing on enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change, with a view to contributing to sustainable development.’ However, the lack of international cooperation between the global north and global south challenge the formulation and implementation of climate change adaptation strategies. This paper brings in the concept of global public goods (GPGs) to the lexicon of climate adaptation and highlights that adverse impacts of climate change such as climate-induced global migration are global public bad. Hence, the measures taken to respond to such impacts, which consequently enhance the resilience of affected countries, make them more adaptive to those adverse impacts, and deliver common values of universal character, should be construed as the global public good. The paper argues that that the idea of GPGs with its universality offers a normative and practical foundation for understanding, addressing, and strengthening the international community’s climate adaptation actions and cooperation.

Introduction

Climate change is undoubtedly a global crisis that disproportionately affects people across geo-politico boundaries.1 At the same time, it is to be noted that the climate impacts significantly differ from country to country and region to region and are of immediate concern for many nations disproportionately impacted by climate change.2 Countries that are most vulnerable to climate change’s adverse impacts have relatively less capacity to adapt to damage caused by climate change.3 In addition, even if the international efforts to mitigate climate change prove effective, climate impacts are unavoidable due to the already present greenhouse gas (GHG) emissions in the atmosphere. Hence, to reduce the negative impacts of the climate change, international community need to adapt.

Article 7 of the Paris Agreement, 2015, recognizes climate change adaptation4 as a ‘global challenge faced by all with local, regional and international dimensions.’5 It further establishes a global goal on adaptation listed below:

• To enhance adaptive capacity and resilience;

• To reduce vulnerability and contribute to sustainable development;

• And ensuring an adequate adaptation response in the context of the goal of holding average global warming well below 2 degrees C and pursuing efforts to hold it below 1.5 degrees C.6

The attainment of the adaptation goal necessitates a global governance of climate change adaptation. Adaptation measures can increase society's resilience and adaptive capacity as a whole, reducing its vulnerability to climate change effects. However, planning an adaptation policy is rife with challenges since climate change and vulnerability manifest themselves differently and change over time. Such a volatile scenario makes it hard to determine the kind of policies and measures for adaptation. To complicate the matter, climate change impacts manifest in different forms ranging from flood to drought to saline intrusion. As such, adaptation needs, measures, and goals are highly context-specific and difficult to measure.7 In addition, the climate change adaptation at the global level is characterized by the lack of international cooperation between and within the global north and global south.8

There are many explanations given for this lack of international cooperation. For example, the provisions of article 7 are vaguely drafted in the sense that they reflect a low level of legalisation.9 Second, high uncertainty amongst States about the distribution of climate impacts globally has led the Paris negotiation on climate adaptation to a low level of precision where each State can interpret article 7 according to what suits best to its domestic preferences.10 Third, States are also not sure about how to compare climate vulnerability globally as a basis for their collective global efforts to address adaptation globally.11 Fourth, there is ambiguity around the concept of adaptation itself as it has been normatively construed differently. For instance, States regard climate adaptation as a contested global goal, mainly due to climate change’s localized and regional impact, making international cooperation difficult.

In this background of lack of international cooperation, the idea of adaptation as global public goods (GPG) offers a normative and practical foundation for understanding, addressing, and strengthening the international community’s collective action and promoting sustainable development. The GPGs are goods with benefits and costs that potentially extend to all countries, people, and generations.12 The idea of GPG can also enhance cooperation or overcome the lack of cooperation since counties find practical incentive/interest in the production and delivery of GPGs. This paper explores whether and in what forms climate change adaptation could be construed as a GPG in the context of sustainable development and in light of the Paris Agreement’s long-term goals.13 The paper examines the contours of ‘global goal on adaptation’ in a broader sense, linked to the adaptation and adaptation-related elements.14 This paper illustratively focuses on displacement/migration caused by climate change and attempts to construe the efforts to address climate displacement as delivering GPGs.

With this aim in mind, the paper is structured as follows. Part I explains the methodological considerations and assumptions. Part II explores the concept of public goods followed by its position under international law. Part III attempts to construe climate adaptation as a GPG. Part IV identifies and assesses the major problems in providing GPGs and enhancing global cooperation.

Methodological Considerations and Key Assumptions

This paper sets out the following methodological considerations and key assumptions. First, it employs relevant public goods literature to understand and contextualize the concept of GPGs and analyze how the same could provide value-add to the study of climate adaptation. Although climate change adaptation deals with local, national, regional, and international aspects of climate change threats, this paper primarily focuses on international dimensions of climate change adaptation. However, in doing so, it is neither feasible nor desirable to completely rule out other regional or local aspects of the climate adaptation that indirectly contribute to GPGs. Secondly, since international cooperation is affected by ‘prisoners dilemma,’ the paper proposes an ‘integrated approach’ to overcome the prisoner’s dilemma to enhance international cooperation on the global climate adaptation governance. Thirdly, the paper uses international law and international institutions—as essential tools—that help facilitate international cooperation in areas like climate change, where global cooperation is necessary to deliver global public benefits. Fourth, the paper heavily relies on the methodological guidance proposed by Scott Barrett, in envisaging and operationalizing GPGs, including aggregate efforts, weakest-link, single best efforts, financing and burden sharing, and development and domestic issues.15 Finally, the paper considers that the problem of free-riding is inherent and can not be eliminated and ignored completely in providing GPGs. However, an attempt has been made to understand how to mitigate this problem. Therefore, the discussion on free-riding is scattered throughout the paper.

Understanding Global Public Good

Since the focus of this paper is to locate climate adaptation in the broader context of GPG, it is necessary to understand the characteristics of public good from a global perspective. The global public goods concept is an economical method of classifying goods and services based on two parameters-

• Rivalry in consumption and

• Excludability.16

Well-known examples are traffic lights and lighthouses.17 Public goods espouse that their benefit extends to all, and their consumption by one does not diminish the consumption by another.18 They are public as opposed to private and global as opposed to strictly national.19 Numerous definitions proposed on the parameters, contours, and applicable categories of public goods promoted a better understanding of GPGs. The International Task Force on Global Public Goods defined GPGs as ‘issues that are broadly conceived as important to the international community, that for the most part cannot or will not be adequately addressed by individual countries acting alone and that are defined through a broad international consensus or a legitimate process of decision-making.’20 Further, the task force endorsed the categories of public goods developed by Barrett based on their effects.21

World Health Organization (WHO) categorizes GPGs as outcomes (for example—eradication of Covid-19) and contributory (international rules attempting to curtail the spread and reduce the vulnerability of Covid-19).22 GPG is further defined as an ‘outcome’ or intermediate product that tends towards universality—that benefits not just one nation or just a particular group of population groups and generations.23 At a minimum, a GPG requires the following criteria: its benefits extend to not just one group of people or private individuals and do not discriminate against any population group or any set of generations (present and future).

As for the relevant areas of GPGs, reiterating the non-rival and non-excludable nature of public goods, the World Bank identifies five areas of GPGs: ‘the environmental commons, communicable diseases, international trade, international financial architecture, and global knowledge for development.’24 Kaul and Mendoza extend the categories of GPGs and emphasize the basic human rights for all people, global public health management, global security and peace, communication and transportation across borders, institutional infrastructure for global cooperation, concerted management of the global natural commons to promote their sustainable use, among other things.25

In sum, it is stated that GPG must satisfy three requirements: first, it covers more than one group of countries; second, its benefits must reach out not only a broad spectrum of countries but also a broad spectrum of the global population; and third, it meets the needs of present generation without jeopardizing those of future generation. Hence, the notion of GPG is not merely geographical but multidimensional which include ‘geographical, sociological, and temporal’ dimension. With the help of this analysis, it is submitted that a GPG is characterized by universality—where it benefits all countries, people and generation and does not discriminate against any population (based on gender, race, age etc.) or set of generation. Though there is no firm consensus on the list of GPGs, the GPGs have come to encompass everything from the global environment, international financial stability, peace, and security through the broad contours proposed by scholars and organizations.26 In light of the above-highlighted understating of GPGs, they have advantages in the field of climate change governance. GPGs can, for instance, enhance cooperation in climate adaptation given the fact that, first, Paris Agreement recognizes climate adaptation as a ‘global challenge’ and thus establish it as a ‘global goal’ to be achieved. Second, measures taken to address climate adaptation can provide several cross-cutting benefits extending to more than one group of county, people and generation. Third, since GPGs are by their definition and nature beneficial to all, they encourage countries to cooperate to address a problem in their common interest. Therefore, construing climate change adaptation as GPG can facilitate cooperation amongst countries. In the background of the expanded notion of GPGs, the next part of the paper attempts to contextualize it under international law and analyses its utility for climate adaptation.

Contextualizing ‘Global Public Good’ in Relation to International Law

International law is a latecomer to GPGs discourse.27 Greg Shaffer and Daniel Bodansky note that international law was mostly missing from the study of GPGs undertaken by the United Nations Development Programme (UNDP) in its three large volumes published in 1999, 2002, and 2006.28 Although international law does not expressly recognize the category of GPG, few international law concepts/principles resemble a close relationship to it. First, international law includes obligations of erga omnes character, which the States owe to the international community of States as a whole rather than to a particular State.29 The obligations erga omnes are by their nature the concerns of the international community as a whole since all States have legal interest and benefit in their protection. For instance, all States are obligated to outlaw acts of agression and genocide and protect the basic rights of human persons, such as protection from slavery and discrimination.30

Second, international law recognizes the concept of ‘common concern of humankind’ where the protection of specific resources is in the interest of all people.31 The concept requires ‘collective action’ to address those shared global problems which transcend national boundaries and reflect a ‘global set of values and interests independent of the interests of a particular State.’32 Some scholars have designated ‘common concern of humankind’ a status of ‘principle’ of international environmental law against the ‘interlinked backdrop of poverty eradication, economic development, energy availability and use, and climate change.’33 Many environmental treaties attempt to address shared global problems by using various phrases that reflect the notions of ‘common concerns’ of humanity’,34 climate change is also a ‘common concern of humankind’35 and, if addressed globally, provides non-excludable and non-rival benefits to world countries. Paris Agreement, while acknowledging climate change as a ‘common concern of humankind,’ asks the States, when taking actions to address climate change, to respect and promote their respective human rights obligations towards indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations.36 The incorporation of idea of human rights and protection of vulnerable community resemble the notions of GPGs that the benefits of climate change’s measures should be reached to last section of society. GPG, with its notion of collective benefit, is closely connected to the concepts of obligation erga omnes and common concern of humankind. These three concepts could be perceived as those that protect or conceive the notions of ‘collective or common interest’ and serve the international community of States.37 Putting it differently, if an obligation primarily relates to the protection of GPG (e.g., strengthening the resilience of climate refugee) or protection against global public bad (e.g., protection against global pandemic), then the obligation is considered to be one protecting ‘collective’ or ‘common’ interest of the international community as a whole. Thus, the structure and substantive content of international law already ingrain the concept of GPGs.

However, the question is what makes the idea of GPGs so special that it should be studied in relation to climate adaptation, given the fact that international law does have similar concepts like obligations erga omnes and common concerns of humankind? Firstly, as stated earlier, GPG encourage states to cooperate notwithstanding the fact that the concept of GPG lacks legal force, while obligation erga omnes and common concern of humankind are well recognized concepts in international law. Secondly, international cooperative theory believes that cooperation in a particular field becomes easy if States find some incentives in that filed. GPGs by its definition and nature provides incentives to all nations and therefore cooperation becomes easy because each State finds some incentive/interest in GPG. For instance, reductions in GHG emissions will slow global warming. It will be impossible to exclude any country from benefiting from this, and each country will benefit without preventing another from getting so. Thus, chances of cooperation becomes higher. However, it does not mean that States are denying cooperation considering their commitment as part of obligations erga omnes or common concerns of humankind. But the alternative argument this paper is proposing is that if climate adaptation could be construed as GPG, it can further enhance cooperation. Thirdly, understanding of incentive/benefits should be understood in a broader sense and thus not necessarily limited to monetary incentives. The incentives can come in various form like strengthening the rule of law, democratic and human rights value system. In short, the paper proposes that if climate adaptation could be construed as GPG, it can deliver GP benefits in these various forms and will provide an additional layer of normative foundation for firming international cooperation as the basis of international law. The following section will explore how adaptation can be construed as GPGs.

Construing Adaptation as Global Public Good

Intergovernmental Panel on Climate Change (IPCC) defines adaptation as ‘adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities.’38 Various types of adaptation can be distinguished, including anticipatory and reactive adaptation, private and public adaptation, and autonomous and planned adaptation.39 IPCC Third Assessment Report further states that adaptation ‘has the potential to reduce adverse impacts of climate change and to enhance beneficial impacts, but will incur costs and will not prevent all damages.’40 Since the climate impacts are varied and numerous, adaptation to climate change also assumes numerous strategies and operates at different levels. Examples of adaptation include constructing sea walls to tackle sea-level rise, setting up early warning systems for cyclones, and adopting drought-resistant seeds for drought-hit areas, among other things. Though a lop-sided emphasis on mitigation characterizes the international climate change regime, adaptation has gradually been gaining legal and policy attention.

This paper argues that climate change stability and mitigation is already considered a GPG, as it satisfies the GPG criteria of non-rivalry, non-exclusivity, and larger benefit because each country’s emissions of GHGs contribute cumulatively to the increase of the overall concentration, and each country’s abatements will contribute to climate stability in the long run.41 In addition, free riding, which charecterises public good, is also prevalent in climate change since some countries may not wish to take serious action against climate change and will still enjoy the benefit of others' abatement. The free riding involved in GPG has been highlighted by Bodansky, who notes that, like public goods in general discourse, GPGs in relation to international law involve externalities writ large—meaning thereby, the GPGs are not free from free-riding problems associated with the supply chain.42 For instance, developing an international regime like the UNFCCC and Kyoto Protocol is envisaged to benefit all countries worldwide (if implemented in the fullest sense). Still, it created a free-riding tension since all countries did not view climate change with the same seriousness and taken measures to address climate change.43

In the context of climate adaptation, the Paris Agreement requires all Parties, as appropriate, to engage in adaptation planning and implementation through, e.g., national adaptation plans, vulnerability assessments, monitoring and evaluation, and economic diversification.44 Notably, almost two-thirds of world countries have adopted national-level law/policy instruments on adaptation.45 It implies that many countries treat climate adaptation as a ‘key component’ of the Paris Agreement’s long-term global goal, even though the adverse impacts may not always span over several countries at a time. The understanding is that their large-scale implications could still affect other countries indirectly. However, the Agreement does not quantify or indicate the adaptation strategies, policies, and outcomes that qualify as ‘global goal on adaptation.’ Therefore, a challenge is to identify which ‘global goal on adaptation’ can be construed as delivering GPG since climate adaptation comes in various forms; a few reflect local, national and regional public good quality, while some can provide GPG. The literature on climate adaptation governance entails divergence of opinion, where some scholars and developed countries consider adaptation a local or national issue yielding only local or domestic benefits.46 In contrast, other scholars and developing and Small Island States (SISs) argue that the negative impacts of climate change (e.g., a threat to the continuation of statehoods of SISs, international climate-induced migration, the purchasing power of vulnerable communities, global public health challenges) should be seen as ‘global public bad[s]’ (GPBs).47 The reviewed literature, however, does not examine the nature of adaptation as GPG or GPB based on the criteria highlighted above, which include the elements of non-rivalry and non-excludability (for the generic meaning of public good) and elements of universality in terms of countries, population groups and generation (for the contextual meaning of GPGs).

The paper argues that climate adaptation strategies, even if conceived and implemented locally, have a global spillover benefit for current and future generations. For instance, in response to the increased droughts in western India, policy measures to promote drought-prone resistant seeds are adopted. Along with producing an immediate local benefit, the measures will contribute to the country's food security. They will also reduce the financial burden on the import of food crops. If the policy mechanism is implemented in a non -discriminatory and non-arbitrary manner, this will fulfill the criteria of non-exclusiveness and non-rivalry. This may also prevent people in the region affected by the droughts from migrating to other regions and causing instability and burden on the receiving State. In addition, if the drought-resistant seeds were not introduced, the locality or the region would have been unable to adapt to climate change and suffered loss and damage. It would have consequently led to the demand for adequate compensation.48 However, countries in practice are reluctant to endorse the view that adaptation is a global goal, which, in their view, would entail the responsibility and cooperation of all states (specially developed) to act upon and assist the affected states.

Generally, the international legal structure is characterized by states that accept reciprocal constraints on action to generate a stable social contract.49 International law is thus based on the prisoner’s dilemma structure of self-interested behaviour.The prisoner’s dilemma is that it would be mutually beneficial if two states cooperate, but there is enough self-interest for the states to defect without undergoing suffering.50 The central aspect of the prisoner's dilemma highlights the problem of balancing the uncertain relationship between a state's selfish behaviour and its commitment to international legal norms.51 This paper argues that if designed in an integrated manner and implemented globally through international cooperation and in the context of sustainable development, climate adaptation measures can overcome the prisoner’s dilemma and provide potential equity effects, and deliver global public benefits. The integrated approach as how it is useful is discussed in the following section in relation to climate displacement.

The paper, as an illustration, argue that transboundary adverse impacts of climate change (such as climate-induced global migration) that affect a sizeable number of States are the GPBs. Therefore, the measures taken to respond to such impacts, which consequently enhance the resilience of affected countries, make them more adaptive to those adverse impacts, and deliver common values of universal character, should be construed as GPGs. Thus, climate change adaptation is so construed as the GPG would eventually deliver global public benefits in various forms and mitigate the burden of adverse impacts of climate change. This paper illustratively adopts the case of climate migration/displacement as an example to provide a viable context to demonstrate climate adaptation as GPG and legal avenues of cooperation.

Providing GPG While Addressing Climate-induced Migration: A Call for Enhanced International Cooperation

Climate-induced transboundary migration52 is a complex phenomenon and takes place at different levels where around the range of hundreds of millions of people are projected to migrate within and beyond States by 2050.53 Not only climate displacement itself should be considered as public bad, but the underlying causes54 identified by the IPCC and the United Nations High Commissioner for Refugees (UNHCR) can also arguably be treated as public bad[s], in which cases their large scale impacts could decide the actual nature of climate displacement whether the latter should be construed as global, regional, national, or local, public bad. Most of the underlying causes are attempted to be addressed, directly or indirectly, by the Paris Agreement provisions of strengthening the resilience and adaptive capacities of States to adapt to climate change’s adverse impacts, including climate displacement.55 Therefore, the measures taken to respond to the underlying causes of climate displacement could arguably be considered global or regional public goods as they contribute to strengthening the adaptive capacity of the affected countries. Suppose the measures that have been adopted are extended to the national, regional, or international level, given that the adopted measures are non-discriminatory and do not exclude the potential beneficiaries based on religion, region, race, caste, creed, or any other similar grounds. In that case, they satisfy the non-rivalrous and non-excludable aspects of public goods. For instance, a planned relocation of the climate-affected population in the Maldives or Bangladesh will not only provide a non-rivalrous and non-excludable national benefit but will also contribute to regional stability and enhance international human rights protection, and will help the attainment of Paris Agreement objectives.

However, it is not easy to conceive how the normative framework and institutional arrangements create practical incentives for the States to cooperate in addressing climate displacement at the international level. For this, it is essential to understand that climate displacement poses a long-term threat to humanity, increases world vulnerability, and adversely affects several people's individual and collective human rights.56 Rich countries are less prone to climate displacement since they are relatively more able to prevent and adapt to such displacement.57 In contrast, developing countries might not be sufficiently able to initiate adaptation programs,58 leading to displacement as an undesirable outcome. In these situations, adequate protection and international support and cooperation become essential, regardless of whether climate displacement is internal or transnational.59 Countries have incentives and real impulses to cooperate at a large scale if transnational migration occurs widely where, for instance, at least one geographical region is affected. These incentives could include the material benefits and countries’ perceptions that if transboundary migration is not stopped or mitigated, it could lead to several socio-economic challenges for a host country as it could create resource burden or lead to local conflicts as well.60 Therefore, if transboundary migration is not managed globally, it could potentially affect home and host countries along with indirect implications for countries that may have other interests in preventing such migration.

Furthermore, States’ increased capacity itself could be maneuvered to deliver global public benefits because it would benefit the funding as well the receiving States. It would directly help poor (developing) countries enhance their adaptive capacity, strengthen resilience, and reduce vulnerability to climate change. Suppose the funding States are (rich) developed countries and champions of democracy. In that case, they will indirectly benefit from reducing global conflict and gender/race-oriented violence, strengthening democracy, and fostering the domestic and the international rule of law. This is significant because studies have highlighted the strong correlation between climate displacement, female trafficking, and human rights violations. The term ‘benefit’ used here should therefore be interpreted broadly to include non–monetary parameters. Notably, global cooperation should not be looked at from the prism of funding only: it can come in various ways and facilitate an institutional cooperative mechanism for technical cooperation and policy planning. Second, it would contribute to the attainment of sustainable development—a context in which the provisions of the Paris Agreement and the SDGs targets, including climate change adaptation, have to be implemented.61

Climate displacement happens because of the inability to adapt. Therefore, adaptation to climate displacement is considered one of the possible measures/solutions to the global migration crisis.62 Nevertheless, a question should be asked how the States’ capacity could be increased to adapt to climate displacement. Here, the term ‘capacity’ should be construed broadly, encompassing normative framework and institutional arrangements necessary to enhance the States’ capacity to address climate displacement issues. As for the normative framework, specific international legal protection standards as set out under international refugee and human rights regimes could be applied in the context of climate displacement by way of their expansive interpretation.63 The UNHCR, as an international institution, can perform a significant role, although controversial,64 both in influencing the decision-making process and implementing the global standards for refugee protection. Fostering coordination in the global management of climate-displaced populations by UNHCR is expected to provide global public benefits as awareness, information exchange, and sharing of best practices and better preparedness. In this regard, this paper suggests a hybrid approach (an approach towards integration of substantive norms from different branches of international law, an amalgamation of norms of different legal status, and assimilation of the role of State and non-state actors, including international organizations) to be adopted to deal with normative deficiencies associated with climate migration.65 Rather than review the existing bulky literature on international refugee and human rights legal regimes, an attempt is made here to underline that these regimes with all the drawbacks provide a normative backbone to facilitate and legitimize the delivery of GPGs in relation to climate displacement. It should be emphasized that, adaptation plans and normative standards are not enough; the actual problem lies in the implementation part, which requires several cross-cutting measures to adopt, such as financing and an integrated planning process. Having made a case for considering climate adaptation and illustratively highlighting addressing climate displacement as providing GPGs, the paper identifies and addresses the major problems in providing GPGs and global cooperation.

Identifying and Addressing Major Problems in Providing GPGs and Promoting Global Cooperation

Scott Barrett identifies some problems (as mentioned above in the methodological part) in providing GPGs. He discusses these problems using different international law examples without contextualizing those examples concerning climate adaptation. Therefore, along with ICT scholarship, this paper uses and contextualizes these problems in the context of climate adaptation.

Aggregate Effort Problems

The first problem is related to ‘aggregate effort problems.’66 For instance, climate change mitigation—a kind of GPG—requires aggregate efforts of all world countries, including a country that contributes minimally to causing climate change. Free-riding is a big problem in climate change mitigation. This problem becomes enlarged in climate adaptation, consequently reducing the possibility of global cooperation for many reasons. First, there is a view that climate change impacts are diverse where ‘catastrophic’ climate change (such as rise in sea level and erosion of land area) is too remote to take centuries. Meanwhile, potentially affected countries will be able to adjust. However, ‘abrupt climate change can cause serious, if not ruinous, problems and is likely to occur more rapidly, rather than taking centuries.67Thus, the level of international cooperation would depend on the magnitude of climate change impacts. Second, because of climate change’s diverse impact as it affects world countries differently (where the most vulnerable are affected severely), countries have fewer incentives to be provided to cooperate and address the problems associated with climate adaptation. However, an analysis of the rationale behind international cooperation reveals that the cooperation does not merely depend on an analysis of cost–benefit. Countries cooperate to resolve environmental issues based on numerous incentives, including the desire to project an image of a responsible nation.

For instance, the decision of Japan to ratify the Montreal Protocol on Ozone Depletion is influenced by its desire to project an international image of a nation serious regarding environmental protection.68 This desire triumphed over the potential economic cost–benefit analysis. Similarly, the decision of the United States not to ratify the Convention on Biological Diversity (CBD) has prompted many nations to ratify the CBD immediately. Signature and ratification of the Convention became a popular act of protest by the nations.69 Similarly, India was criticized by many nations for opposing any binding climate mitigation obligations despite being one of the largest gross GHG emitters. Hence, India was eager to project an image of seriousness as regards climate change. The leadership provided by India for the establishment of the International Solar Alliance needs to be seen in this background.70As explained, the desire to cooperate and take leadership in solving international environmental issues can be based on numerous factors which can encourage cooperation.

Third, there is a divergence of opinion on whether climate adaption provides GPG: if yes, then in what forms; if no, then why do States cooperate. However, as explained in the earlier part of the paper, climate adaptation can qualify as GPGs as the measures taken for climate adaptation can reduce the vulnerabilities, enhance the resilience of affected countries, and deliver common benefits that are indivisibly spread among the entire community. Fourth, climate adaptation has economic consequences where the cost is a significant factor in providing GPG of adaptation.71 Further, addressing this problem could require diverting limited resources from other good causes, which provides greater benefits than investing in climate adaptation. However, this paper considers that an integrated approach to climate adaptation could reduce this problem by mitigating free-riding problems, providing co-benefits, and consequently lifting the prisoner’s dilemma.72

The hybrid/integrated approach offers a platform for forging cooperation in solving issues of global commons. For instance, attempting to address climate change only by focusing on United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol, and the Paris Agreement is meaningless, as these legal instruments do not address many sources of GHG emissions.73 Studies suggest that international shipping and civil aviation contribute to GHG emissions.74A coordinated attempt between these institutions is essential for addressing climate change; it may also provide incentives for cooperation between nations as the tradeoff and interest each nation has in these areas are different. For instance, UNFCCC and Kyoto Protocol were founded on the concept of Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC); however, the same cannot be extended to international shipping and civil aviation. Hence, the obligations can be imposed on countries like India and China, thus obliterating the asymmetry obligations raised by the United States against these countries in the climate negotiations. Varied interests of the nations in different foras can be leveraged for international cooperation.

Another way to promote international cooperation in climate adaptation could be by linking it with SDG goals in general and SDG-13 in particular concerning climate change. Since adaptation cannot be a single policy, but a comprehensive one in the context of poverty reduction, agricultural development, water resources development, and disaster prevention,75the attainment of SDGs is a probable indicator where states are expected to cooperate in actions which can provide a fillip to the attainment of SDG goals and sustainable development.

As an integrated approach, the paper considers the hybrid mechanism in climate migration/displacement. The hybrid law approach advanced in this paper proposes that law makers borrow the best practices and principles from existing branches of international law instead of creating a new one. Thus, for issues concerning climate refugees cutting across issues of human rights, refugee law, and environmental norms, hybrid law provides the foundation to forge the composition of a new eclectic legal regime considering the norms and institutional coordination from the international climate change framework, human rights and refuges laws to address the climate displacement in a coordinated manner. The Nansen Protection Agenda for the Cross-Border Displaced Persons in the Context of Disasters and Climate Change76and the UN Compact for Safe, Orderly and Regular Migration, a non-legally binding, cooperative framework that builds on the commitments agreed upon by the UN Member States in the New York Declaration for Refugees and Migrants reflect a set of hybrid law mechanisms covering cross-cutting, interdependent and people-centered guiding principles and is based on international cooperation, national sovereignty, the rule of law, sustainable development and human rights.77 Further, there are enough practical reasons and incentives for nations to evolve regional cartels as a measure of adaptation for the time being and gradually promote an ‘aggregate efforts’ of all countries. Hence, international law has enough existing mechanisms and hooks to enhance international cooperation.

Weakest-Links Problem

The second problem is related to the ‘weakest-links problem.’78 Some GPGs are to be produced with the participation of ‘all’ countries—i.e., global cooperation—and if one or a few countries are excluded, it could defeat the very purpose of providing GPG. An example in this regard is the Kyoto Protocol, whose effectiveness was challenged by the decision of the United States not to be a party. Another prominent example given in this regard is the disease of Smallpox, which was considered to be a serious health problem during the late twentieth century.79 However, with the mass vaccination program globally, it is almost disappeared. Similarly, the Covid-19 pandemic (a kind of GPB) could be another contemporary example, where its complete eradication should be considered ‘weakest-link’ GPG because its benefits are both non-excludable and non-rival as well as it requires global cooperation. If one country (weakest-link) is excluded from accessing the Covid-19 vaccine (a kind of GPG), it can defeat the very purpose of attaining complete elimination of the Covid-19 pandemic. Global cooperation is possible in providing this kind of GBG if each country has an ‘incentive’ and is assured that all other countries would play their part. This ‘assurance’ plays a vital role in producing incentives towards the supply of this GPG. In Covid-19, the ‘assurance’ makes sense since all countries are affected and have ‘incentives’ to get out of this pandemic. Although Covid-19 is not a result of climate change, it made vulnerable the most vulnerable.

In the context of climate adaptation, the weakest-link problem may not assume significant proportions. Climate adaptation is envisaged as a response to the climate impacts, ranging from local, national, regional, and global concerns. It has generally been noted that the countries impacted by climate change are eager to envisage adaptive mechanisms. If they are not able to envisage measures, it is due to the lack of financial or technological assistance. The challenge is to promote international cooperation among nations that may not be seriously impacted by climate change in the short term. The international climate regime has provided for technological, financial, and scientific cooperation.80The State parties to the UNFCCC and Paris Agreement have not objected to the requirement indicating their willingness to contribute. The acceptance of financial assistance by the developed nations is significant since many countries view compliance with international law or participation in the global legal order as an essential part of their identity and constitutive commitments and are expected to cooperate in good faith.81

Furthermore, unlike the global pandemic, even if one or two nations are left out of the adaptation policies and strategies, it may not entirely defeat the efforts of adaptation by other nations. In addition, climate adaptation also leaves scope for regional cooperation, and hence the ‘weakest link’ inherent in the GPGs can be overcome. Since many climate impacts are felt on a regional scale, for instance, sea-level rise and the consequent displacement, regional cooperation can be the primary strategy. In this regard, an analysis of South Asian Cooperative Strategies includes the Dhaka Declaration on Climate Change,82 the SAARC Action Plan on Climate Change,83 and the Thimphu Statement on Climate Change.84All these initiatives have underscored the importance of adaptation as a crucial area of concern and an area for strengthening regional cooperation to address the extreme vulnerabilities of climate change in the region.85

The Thimphu Statement on Climate Change noted that South Asia is particularly prone to climate change and related disasters making the need for a regional response to meet the challenges of climate change more urgent and compelling. The statement also noted that South Asia could benefit from cooperative regional initiatives and approaches, exchange of experiences, knowledge, transfer of technology, and best practices to address the challenges posed by climate change. It recognized the urgency of ‘regional cooperation and climate change responsive measures, such as formulating a ‘comprehensive regional strategy’ against climate change, including adaptation.86

Single-Best-Effort Problems

The third problem is related to single-best-effort (SBE) issues.87 Unlike aggregate effort problems, SBE problems arise where the GPGs are delivered by individual actors or a group of few actors, thus creating many free riders.88 The SBE hardly poses many confrontations at the production level as it does not necessarily require universal cooperation because the country itself involves and finds sufficient self-interest in the production of GPG.89

It is difficult to conceive the SBE problems concerning climate adaptation crisis as the crisis, by definition, involves the aggregate efforts of all countries. However, free riding and SBE problems can still be a significant concern for climate adaptation efforts. Despite the chances of free-riding problems, the situation—like climate change–can push countries to be involved in mitigation and adaptation since climate change raises an existential threat for humanity. However, it still requires international cooperation at a large scale, not only for investing in Research and Development (R&D) to either get prepared for or prevent future climate calamity but also in the dissemination of produced GPG to the last and most vulnerable person of society, making it a true GPG. In the case of climate adaptation in general, SBE’s example of providing regional public good could be given where, for instance, India dedicated a self-made South Asia Satellite for monitoring climatic variation, among other things.90Another typical example at the international level is the Scandinavian countries, often taking the lead in environmental negotiations and taking unilateral measures above and beyond their commitments.91

International Financing and Burden-Sharing Arrangements

The fourth problem is related to international financing and burden-sharing arrangements.92 GPGs of any type require international funding. Mobilization of finance for climate adaptation is a complicated and challenging phenomenon, and a lack of funding could seriously jeopardize the capacity-building measures that are inevitable in climate adaptation. Thus, lack of funding resources could be the major challenges in providing GPGs in climate adaptation. Despite having specific funding mechanisms (such as Green Climate Fund and Special Adaptation Fund), a pertinent question nevertheless arises—who should finance climate adaptation and why the same should be mobilized at a large scale, if not globally.

Again, the incentives that the countries will gain and the assurance that all other countries will share and play their part are the factors that would motivate the States and institutions to cooperate and invest in financing. Financing in technological transformation, which can relatively be more suitable for adaptation, could require aggregate efforts of all countries, mainly developed countries. Financial aid, however, raises the issues of burden-sharing and allocation. A huge gap remains in financing for developing countries. Annual adaptation costs in developing countries are estimated at USD 70 billion, and this figure is expected to reach USD 140–300 billion in 2030 and USD 280–500 billion in 2050.93 Therefore, public and private financing needs to step in with some normative arrangements, including principles to govern the allocation.

Allocation of climate change finance is another problem where developed countries focus on financing mitigation plans despite the articulation of developing countries to finance adaptation.94 Therefore, the allocation should be done following the Paris Agreement's norm of increasing adaptation finance from current levels and providing appropriate technology and capacity-building support. Moreover, increased public and private adaption financing should be backed by the notion of a sustainable financing system. Adaptation financing needs to be sustainable, and it must develop new tools of sustainability investment criteria, climate-related disclosure principles, and mainstreaming of climate risks into investment decisions. The multiscale and integrated model of finance arrangement substantiates the argument of an integrated approach advanced throughout the paper. An integrated approach could motivate states and other actors to invest in enhancing climate resilience. Another reason is that a total world expenditure on climate adaptation does not outweigh the loss the world communities suffer from climate change’s adverse impacts each year. In this regard, further empirical research should be done to assess the ‘cost’ of climate displacement and the potential benefits of appropriate measures, if, taken in advance.

Development, Domestic, and Legitimacy Issues

The fifth problem is related to development, domestic, and legitimacy issues.95In most GPGs, development is a ‘latent potential benefit.’96 However, to fully realize the development-related benefits of GPGs, it requires effective domestic institutions to ensure the supply of these benefits to everyone. Under-supply of regional and global public goods can adversely affect the poor and weak States. Putting it differently, strengthening domestic institutions at a large scale and overcoming the deficiencies is itself a GPG since it would also indirectly benefit rich and advanced countries. However, domestic issues and sometimes individual leadership motivated by ideological considerations influence the international cooperation process and affect the delivery of GPGs. For instance, in the case of climate change, it happened when the USA and Australia declined to accept the Kyoto Protocol, which in their view, created free-riding problems by excluding emerging major pollutants, India and China.97 However, the Democrats in the USA hold a different perspective; a recent example of this was to signify a willingness to rejoin the Paris Agreement.98 Therefore, fighting against any global concerns and consequently against its adverse consequences would require ‘wide-scale and multisectoral coordination’ to deliver GPGs by equitable sharing of burdens and to protect the human rights and needs of the most vulnerable. In this regard, relevant international organizations must undertake ‘multisectoral collaboration’ to make global cooperation feasible. These organizations include, but are not limited to, the International Meteorological Organisation, United Nations Framework on Climate Change (UNFCCC), International Civil Aviation Organisation (ICAO), International Maritime Organisation (IMO), and UNHCR. These organizations can provide a model for collaborative governance needed to adapt to climate change’s social, economic, and health consequences. They could also be used as a reference point for developing effective global coordination mechanisms in climate adaptation by placing migration and adaptation on the global and domestic political agendas list and raising general awareness and democratic response. General public awareness can immensely contribute to climate adaptation. For instance, if an adaptation technique of cyclone warning is adopted nationally, knowledge of it and its dissemination globally can help enhance adaptation.

Though cooperation forms the foundation of the international environmental law framework, broad state interests characterize a quintessential environmental negotiation with some states favouring environmental protection and some opposed. This scenario makes cooperation difficult between nations and makes it appear aspirational. It may even be challenging to determine what kind of cooperation is required to address the environmental crisis in some cases.99 It has also been historically noted that developed countries preferred environmental protection over developing nations.100 In climate change, there are additional divisions, such as between island nations and other developing nations like India and China. In this context, trade-offs are used to facilitate Agreement. For example, the developed nations brought the financial fund mechanism to encourage developing nations’participation.101 Similarly, the Reducing Emissions from Deforestation and Forest Degradation (REDD) mechanism was introduced to facilitate cooperation between the developed north and developing south.102 Though it is possible to envisage coordinated policies, conflicts must be recognized and addressed in time. For instance, the REDD mechanism provides forest users economic incentives to protect and sustainably manage forests in developing countries. However, this might entail restricted access to those forests by indigenous communities, which has an immediate negative impact on the socio-economic security of groups not included in the system.

In addition, environmental agreements are based on consensus, and nations often indulge in coercion tactics to force and facilitate cooperation.103 The numerical majority of developing nations can elicit some force in making sure international agreements provide incentives for climate adaptation. The explicit mention of the ‘global goal on adaptation’ indicates the persistence of the developing nations. Finally, the involvement and influence of non-state actors in the decision-making process of production and delivery of GPGs raise legitimacy concerns of different degrees under international law. The authors do not have a predicate solution to resolve all these problems but acknowledge that further database research is required in each highlighted scenario.

Concluding Remarks

In sum, it is reiterated that the process of applying the concept of (global) public good in relation to climate change adaptation is not easy as it involves multiple actors (states and non-state actors), legal norms of different status (hard and soft law), diverse challenges (domestic and international), and variety of incentives that are necessary to enhance international cooperation at the global level. However, although climate adaptation has been normatively construed differently, it can still deliver GPGs in multiple forms. This paper substantiates that if climate adaptation measures responding to climate change’s adverse impacts are adopted at a large scale and integrated with the Paris Agreement's long-term goals, they can deliver global or regional benefits, making global or regional cooperation easy. However, the challenges would always be there regarding free-riding issues that could be mitigated or managed by following the integrated approach suggested in this paper. The paper argues that extending the concept of GPGs to climate adaptation can be a powerful tool in promoting global benefits because it marshals the arguments of self-interest. It can be used to identify areas in which global collective action is needed, specify where the costs and benefits will rest, and communicate why spending on climate adaptation thousands of kilometers around the world is not a waste of their tax dollars. This paper finally acknowledges that more empirical study is required in each sector (climate adaptation and migration) to transpose and contextualize the study of GPGs in relation to international law in general and climate change law in particular.

Declarations

Conflict of interest

On behalf of all authors, the corresponding author states that there is no conflict of interest.