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.
