June 2012

Scalia Unhinged: Taking (US State) Sovereignty Very Seriously

I know that most readers of the blog are interested in international law, not immigration law, but Justice Scalia's concurrence/dissent in Monday's SB 1070 decision has something for everyone. Scalia takes the trope of formal sovereignty as among the states of the United States to its logical endpoint: As a sovereign, Arizona has the inherent power to ex­clude persons from its...

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.

YJIL Symposium: Human Rights and Climate Change: Perspectives on the Value Added of 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. [Siobhan McInerney-Lankford is a human rights lawyer and senior policy officer at the World Bank.] Human rights law can contribute to understanding climate change, particularly in terms of the social and human impacts of climate change. In Avoiding Adaptation Apartheid, Hall and Weiss consider how climate change affects the enjoyment of human rights and employ a legal frame of reference to address the complementary question of how human rights law can inform responses to climate change. By distinguishing how human rights might inform mitigation policies from how they could influence adaptation policies and by focusing on the latter, they get beyond the challenges of establishing causation (due to the aggregate causes and disparate impacts of climate change) and the absence of an established legal basis for what John Knox calls “diagonal environmental rights” between individuals or groups in one country against the government of another country. Instead they highlight the relevance of the ‘vertical dimension’ of human rights law as it governs the relationship between states and their citizens, irrespective of where responsibility for increased emissions should be assigned. A strength of this approach is its emphasis on existing legal obligations and the enhanced accountability contributed by human rights, since rights imply correlative duties or obligations. A number of additional perspectives are worth highlighting which relate to human rights as the subjects of public international law. As a formal legal matter, it is worth considering how one argues effectively for the applicability of human rights obligations to mitigation responses governed by international environmental law, given the increasingly fragmented nature of international law. One might invoke the importance of international policy coherence to argue for the general relevance of human rights obligations to climate change policy. One might further argue for interpretative reliance on human rights obligations in implementing environmental law obligations where both are binding on a particular government, as for instance where the State were party to both the ICESCR and the UNFCCC. Support could be drawn for this on the principle of systemic integration to argue that human rights law obligations are part of the relevant rules of international law applicable in relations between the parties, within the meaning Article 31 of the Vienna Convention on the Law of Treaties. This normative interplay could be characterized negatively or positively. In negative terms it could be cast as a responsibility to ensure that the interpretation of norms related to climate change not undermine the fulfillment of human rights obligations. From a more positive perspective, human rights obligations could be drawn upon to inform the design and implementation of goals set forth in climate agreements.

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.

Weekday News Wrap: June 27, 2012

As a second boat of refugees in less than a week sinks on its way from Indonesia to Australia's Christmas Island, Australia's Prime Minister Julia Gillard wants to revive an earlier plan to have refugees processed in Malaysia in exchange for the acceptance of genuine refugees. Syria's President Assad has claimed that his country is in a state of war. Notwithstanding the...

YJIL Symposium: Population Growth: The Sticky Wicket Of Climate Change And Human Rights

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. [Robin Kundis Craig is a professor of law at the University of Utah S.J. Quinney College of Law] Margaux Hall and David Weiss do all of us a great service in continuing the dialogue regarding the relationship between human rights and climate change in their article, “Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law.” In particular, their article rightfully points out that the human rights implications for climate change adaptation may be significantly different from those for climate change mitigation, in terms of substantive content, legal viability, and procedural feasibility. As I have argued in the natural resources and environmental law context, climate change adaptation is a different problem from climate change mitigation. By necessity, climate change mitigation—the steps toward reducing anthropogenic greenhouse gas emissions with the ultimate goals of first stabilizing and then reducing their atmospheric concentrations—requires international cooperation. It also requires sacrifice on the parts of some peoples and sectors, at least until some transition away from a carbon-based economy becomes technologically and economically possible. As a result of both of these realities, climate change mitigation efforts are plagued both by feet-dragging and free-riding, both of which complicate the very thorny issues of equity in implementing mitigation strategies around the globe. Nevertheless, as Hall and Weiss correctly note, implementing climate change adaptation strategies—that is, strategies for coping with the socio-ecological impacts of climate change—is a for more complex problem. For example, these strategies tend to be more focused on the local and regional scale, although at least some international coordination would be helpful for problems such as food and disaster aid and climate change refugees. Moreover, as Professor J.B. Ruhl at Vanderbilt has recently pointed out, climate change will produce winners as well as losers, complicating the potential willingness of all affected persons to embrace adaptation strategies, even in a small geographic location.

YJIL Symposium: Human Rights and Climate Change Adaptation at the international Level

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. [Bonnie Docherty is a lecturer on law and senior clinical instructor in the Harvard Law School International Human Rights Clinic. Tyler Giannini is a clinical professor and clinical director of the Harvard Law School Human Rights Program.] In their thought-provoking article “Avoiding Apartheid: Climate Change Adaptation and Human Rights Law,” Margaux Hall and David Weiss argue that human rights law has more to offer climate change adaptation than mitigation. The authors also stress that unless a human rights approach is used, the specter of “adaptation apartheid” looms. They are not the first to apply human rights to adaptation, but they advance the discussion about why the rights framework is a better fit in this context. To prove their point, the authors focus primarily on examples of national adaptation policy and questions of legal liability. Human rights law, however, can also bolster international adaptation efforts, including the creation of new treaties. Part of the article warns of the dangers of not using a human rights framework in the adaptation context. The title speaks of “apartheid,” and parts of the piece illustrate why particularly vulnerable populations are likely to suffer disproportionate harm from climate change. Hall and Weiss do not fully explore the legal and normative ramifications of bringing an apartheid framework to bear on the issue of climate change, however. It would be interesting to see the authors, perhaps in a follow-up article, unpack questions raised by the use of the word apartheid, which is most often associated with an institutionalized legal regime of separating the races for the purpose of systematic oppression. For example, how do discussions of the climate change legal regime and the disparate impacts along geographic and gender lines relate to traditional uses and understandings of the term apartheid? The bulk of the authors’ text focuses on approaching the problem of climate change adaptation from a human rights perspective, highlighting national initiatives and touching on possible international ones. The issue of climate change refugees provides an excellent case study of how a human rights framework could work at the international level. Experts predict that climate change will lead to the migration of tens, and maybe hundreds, of millions of people, many of whom will cross national borders. The authors note that recognition of climate change refugees is an example of “how human rights could begin to play a concrete role in climate negotiations,” but they do not explore the topic in depth. In “Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees,” we lay out the components and negotiation process for a proposed instrument on climate change refugees. We also note that an integrated approach that blends efforts to mitigate and adapt is needed. The proposal draws on human rights for essential protections, assignment of state responsibility, and procedural elements.

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.

Yale Journal of International Law Symposium: Volume 37 Issue No. 2

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. The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris through this symposium. Over the next three days we will be discussing two Articles from Volume...

Weekday News Wrap: June 26, 2012

As NATO meets over the downing of Turkey's jet by Syria, Turkey has also written to the UN Security Council that the attack is a "serious threat to peace and security". The EU foreign ministers have urged Turkey to exercise restraint in its responses. Meanwhile, Syria has allegedly shot at a second Turkish jet. In an interview, the Director-General of MI5...