YJIL Symposium: The International Right to Equitable Climate Change Adaptation—Substance or Procedure?

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.

[J.B. Ruhl is the David Daniels Allen Distinguished Chair in Law at Vanderbilt University Law School]

In Avoiding Adaptation Apartheid, Margaux Hall and David Weiss assemble a compelling argument for viewing climate change adaptation on the international level as a human right. Of particular importance are their emphasis on the distinction between climate change mitigation (measures to reduce climate change) and adaptation (measures to respond to climate change) and their focus on the responsibilities of states, including leaders of developing nations, to provide equitable and effective adaptation measures within their capacity. For too long climate change policy at all scales has been dominated by a mitigation focus, leaving a widening adaptation deficit that threatens to put many vulnerable populations in harm’s way. Hall and Weiss join a growing chorus of policy makers and scholars calling for increased attention to the adaptation needs of a multitude of impoverished people who, owing to the paralysis in mitigation policy, face certain disruption of their communities and cultures. But Hall and Weiss go beyond the standard solutions of shifting money from the developed nations, which are most responsible for and best equipped to manage climate change, to the developing nations least responsible for climate change and poorly situated to withstand its harms. Rather, they also tackle the difficult topic of what to expect from leaders of those developing nations as they decide how to deploy adaptation resources. The human rights lens they use for defining, measuring, and enforcing those duties seems utterly appropriate.

But I am left asking, is this anything exceptional for the law? Surely climate change adaptation presents immense and complex policy questions for subnational, national, and international institutions. This, however, does not necessarily mean climate change adaptation requires anything special of law, or will lead to profound transformation of legal doctrine. For example, in Climate Change Meets the Law of the Horse, Jim Salzman of Duke Law School and I recently examined the impact of climate change adaptation on domestic law in the United States. Using a scenario of climate change impacts drawn from a variety of scientific analyses, we asked which fields of law would likely feel the most stress and whether there would be an impetus for creation of a new distinct field devoted to climate change adaptation. When one plays out that question, many fields of law quickly drop out of the picture. For example, it is a hard case to make that climate change will present novel and complex questions for family law. The law of coastal property rights, by contrast, is more likely to need to evolve to the new circumstances of sea level rise. But as for a distinct substantive field of climate change adaptation law, we could think of no reason one would be demanded. On the other hand, the demand for equitable allocation of adaptation resources in the United State could very well lead to the formation of a distinct set procedures focused on ensuring that goal, much as environmental justice has done for environmental protection.

Turning to the international law context Hall and Weiss address, the same questions seem particularly salient. Is there anything about climate change adaptation, even when viewed through the human rights lens, calling out for evolution of substantive international law doctrine, or even further, for the creation of a distinct realm of international law? Or does climate change adaptation simply present more of the same human rights issues that have been in play for decades, albeit with more quantity and intensity—more frequent and intense floods, droughts, heat waves, and population dislocations? If there is something new and exceptional about climate change adaptation for international human rights law, what is it and what new substantive doctrine is required?

I take Hall and Weiss to come down on this question roughly where Salzman and I do for domestic law—it will be more a matter of procedure than substance. To be sure, characterizing equitable climate change adaptation as a right is, on its surface, a substantive move in the law? But what is it exactly that lies under that surface? It is, as Hall and Weiss describe it, the human rights already in play in international law (to adequate shelter, food, water, security, etc.). Beyond this, Hall and Weiss posit no new international law doctrine. Nevertheless, by framing equitable climate change adaptation as a human right, they leverage the human rights model as a means of tapping into the existing monitoring and enforcement mechanisms of international law.

One should ask what reason there is to believe international institutions will be any more effective than they have been in this human rights endeavor simply because the banner now reads climate change adaptation? That is the crux of the matter for Hall and Weiss, the question they are bound to confront at every turn as they advocate their thesis. My best answer for them is that it may be that leveraging the climate change adaptation theme will allow international institutions to package what now is a disparate collection of human rights into one box—the right of equitable climate adaptation—which will facilitate the human rights monitoring and enforcement processes. In that sense, framing climate change adaptation as a human right, while not a substantive move in the law, may very well make a substantive difference to millions of people.