YJIL Symposium: Introducing Adaptation Apartheid

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

Margaux J. Hall is a Consultant in the Justice Reform Practice Group of the World Bank’s Legal Vice Presidency. She is based in Freetown, Sierra Leone. David C. Weiss is an Associate in the Antitrust and Competition practice group at Skadden, Arps, Slate, Meagher & Flom LLP in New York.

All views expressed herein are the authors’ own.

We would first like to thank the Yale Journal of International Law and Opinio Juris for making possible this online symposium on our recent article, Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law. We’re looking forward to the forthcoming discussion.

Our article aims to explain how the international law of human rights can inform the understanding of, and guide policy decisions regarding, climate change adaptation. We argue that, thus far, analyses linking human rights and climate change have focused primarily on mitigation (reducing greenhouse gas emissions to lessen the extent of climate change), giving short shrift to adaptation (responding to actual or expected human and environmental consequences of a changing climate to minimize harm). Legal scholars and practitioners have recognized the difficulty of applying human rights to climate change mitigation: legal duties only extend within territorial boundaries to state actors, and it is difficult to establish that a particular government action or inaction gave rise to harm. But, as our article contends, human rights can and should be a practical tool to address climate change adaptation, which often takes place at the state or community level, and which involves less tenuous causal chains.

Any academic discussion of adaptation should also acknowledge the disproportional effects of climate change on persons who already suffer the most due to poverty, inequality, restrictive economic and socio-cultural settings, and other factors. The international development community often considers these individuals collectively through Millennium Development Goals and other aggregate targets, but human rights addresses these persons’ individual and group-based needs and entitlements. In essence, bringing humanity to discussions of climate change adaptation, we believe, provides an important normative lens through which to view difficult issues relating to climate change.

We would be remiss, however, if we did not also acknowledge the challenge of attempting to address global issues through human rights frameworks. Our article highlights the state actor and causation hurdles, but other challenges exist as well. First, human rights largely focus on individual claims, making it more difficult to tackle systemic, rights-depriving issues like poverty. Next, there is the risk that human rights can legitimize ineffective government action because human rights standards are frequently too low from a normative perspective (and there are challenges enforcing even those standards that do exist). Third, in fulfilling human rights, there is an ever-present tension between ideal, sacrosanct “rights” and more pedestrian rights that are subject to routine balancing and compromise. Finally, human rights law privileges legal remedies over social, cultural, or other remedies that might be more appropriate in a given context.

Despite these challenges, our article argues that although it is normatively desirable to hold the top emitting countries accountable for the bulk of climate change response, all states have responsibility for their adaptation decisions, particularly as sizeable adaptation funding starts flowing to developing countries. At the most basic level, states should adapt to the maximum of their available resources and not engage in discriminatory adaptation practices. In turn, the unique characteristics of adaptation policy make it an optimal candidate for a human rights approach. Consequently, governments and communities should use human rights principles to inform adaptation project selection and implementation.