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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...

In Other Supreme Court News: International Law Studiously Avoided in Juvenile Life-Without-Parole Case

The Supreme Court has struck down state laws mandating juvenile offenders to be sentenced to life without parole with its decision in Miller v. Alabama. The decision is part of a logical progression from decisions constitutionally barring the death penalty for juvenile offenders (Roper v. Simmons) and life sentences for juveniles for crimes not involving murder (Graham v. Florida). What's interesting...

Court Guts SB 1070 (Immigration Still Part of Foreign Relations)

As predicted here, the Supreme Court delivered a split decision today in the Arizona immigration case.  But to the extent that it's a partial victory for supporters of SB 1070, it's only a nominal one.  Justice Kennedy's majority opinion broadly validates federal power over immigration, leaving a very confined space for state activity. Kennedy's opinion situates immigration law as part of...

Wanted: Best-Selling Novelist Who Needs Advice on International Law

Long-time readers may recall that I have a standing offer to employ my services as a technical consultant for any Hollywood producer or New York Times best-selling novelist looking for accuracy in popular portrayals of international law.  And we here at Opinio Juris regularly like to make hay of how popular culture interprets international law and international relations.   For our...

Weekday News Wrap: June 25, 2012

Mohamed Morsi, the candidate of the Muslim Brotherhood, is declared the winner in the Egyptian Presidential Election. Turkey has invoked article 4 of the NATO Charter to arrange consultations on its response after Syria shot down a Turkish fighter plane. Turkish warplanes have been busy this weekend, carrying out nine air strikes on PKK targets in Northern Iraq. Additionally, 33 members of the...