YJIL Symposium: Hall and Weiss Respond to Comments on Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law

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 are grateful for the thoughtful contributions from Bonnie Docherty, Tyler Giannini, Robin Kundis Craig, Siobhan McInerney-Lankford, and JB Ruhl, scholars who have shaped academic discourse around climate change and human rights. We also would like to thank Matt Christiansen, who organized this symposium for YJIL. We’ve enjoyed receiving these thought-provoking reactions to our article and believe they warrant at least a brief response.

As we conceded in our introduction to this symposium, there remain significant challenges in addressing global issues such as climate change through a human rights framework. Nevertheless, we continue to view human rights as useful and important in climate change adaptation discussions, as do the commentators in this forum. McInerney-Lankford writes, for example, that human rights have power in that they are backed by the force of law. While the legal standards for a particular right may be somewhat vague, governments may not engage in intransigence, retrogression, discrimination, or failure to meet certain minimum standards. Litigation can indeed vindicate individual rights claims, as experiences from South Africa and India have demonstrated.

Beyond this, human rights law’s state actor requirement need not overly restrict climate change action. Governments themselves will play a large role in climate change adaptation as they receive a growing pot of funding from international donors. For example, in May, six multilateral banks agreed on a joint process to report their adaptation funding. As donors join together, human rights can provide a powerful means of ensuring government accountability and compliance with certain standards. Thus, responding to Ruhl’s concern that international institutions may be no “more effective than they have been in the human rights endeavor simply because the banner now reads climate change,” multilateral banks and others could exert pressure on governments to spend their sizeable adaptation funds wisely – human rights can provide an organizing principle for advocacy in this respect.

One important area for government action, as insightfully raised by McInerney-Lankford, is in conducting human rights impact assessments that help duty bearers better predict the human rights consequences of their actions. We also see a key role for governments in prevention, by sharing information to help citizens anticipate threats and respond accordingly. The temporal complexities and uncertainties in climate change may complicate these preventative steps, as Kundis-Craig persuasively notes. Indeed, climate change is rooted in notions of uncertainty. It is practically impossible to assess how much change will occur, the strength or frequency of its impacts, or the effectiveness of various adaptive responses. In the midst of such uncertainty, how should governments plan and prioritize? The global community has experience with planning around uncertainty – financial analysts and development practitioners grapple with unknowns on a daily basis. This uncertainty need not undermine human rights’ efficacy; indeed, human rights law embraces iterative and participatory solutions.

While holding governments responsible for their adaptation decisions in important, Docherty and Giannini clarify that we should not forget about “diagonal” rights between developing countries’ citizens and top-emitting states. Their proposal to hold host states responsible for the care of climate change refugees creatively promotes a form of diagonal accountability – more-developed host states help fulfill the rights of citizens from climate change-affected countries.

Kundis-Craig raises the important question of how we can reconcile competing rights claims, such as those that would advocate for population control as a means of minimizing climate change-related rights infringements. In this respect, we are a bit more cynical than Kundis-Craig in that we do not believe that human rights assume the ongoing improvement of lives throughout the world. Each rights-informed decision can result in rights winners and rights losers (as David Kennedy points out in his insightful critique of human rights, eliminating the death penalty may have rights adverse consequences for persons with life-long detainment). Perhaps, as Kundis-Craig suggests, human rights law can best resolve these thornier issues when it does not mandate, but rather empowers and educates to inform citizens’ and governments’ choices.

At base, it is important to note that there is no right to be free from impacts of climate change, as human rights are currently conceptualized. Should we endorse a new right to equitable climate change adaptation to assist in monitoring and enforcement, as Ruhl suggests? We find this proposal innovative and worthy of further exploration, yet we wonder how this newly-formed right could overcome the tensions that have plagued human rights – and socio-economic rights in particular – to date.

Finally, all of this leads to the bold question posed by Ruhl: are we saying anything new about human rights or international law? We agree with Ruhl that applying human rights to climate change adaptation does not change the substance of international law; however, it does change procedural responses, the coherence of and synergies in international climate change action (as McInerney-Lankford suggests), and notions of the utility of international law. In addition, what is “new” about climate change adaptation is that it is not mitigation (as too few human rights scholars have explicitly recognized). Therefore, by considering the human rights implications of adaptation, policymakers and scholars can better respond to the difficult questions of causation and responsibility that have confounded efforts to apply human rights to climate change mitigation.