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YJIL Vol. 37 No.2

YJIL Symposium: Howse and Langille Respond to Comments on Permitting Pluralism

by Robert Howse and Joanna Langille

Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law. Joanna Langille is a 2011 graduate of New York University Law School.]

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.

We would like to thank Professors Perisin, Lester, and Feichtner for taking the time to comment on our piece. Their remarks are extremely thoughtful, and in some instances help us to clarify our claims. We have also had the benefit of their own thinking and writing on this case in preparing our article. Finally, we would like to thank YJIL for organizing this Symposium.

Response to Professor Perisin:
Professor Perisin first suggests that the aim of the EU seal products ban is to protect the fox and mink industries within the EU. This raises the issue of how one ascertains whether the aim (or motive) of a measure is protectionist for purposes of WTO law. It would be helpful to understand better the methodology on the basis of which she claims that this is the likely aim of the measure. For example, is it based on legislative history that we somehow missed? Or were there sizable campaign contributions from the mink and fox fur industries to MEPs?

We also note that there is evidence that the EU has imposed significant regulatory control on the way in which animals are treated in the EU’s own fox and mink industries. The EU has, in the past, taken legislative action to regulate hunting and trapping, such as the EU’s prohibition on the use of leghold traps. It has also subjected fox and mink farming to the general requirements for the protection of animals kept for farming purposes. The EU has demonstrated that it is willing to regulate the domestic fur industry to minimize animal cruelty.

In her second major critique, Professor Perisin argues that determining what constitutes cruelty to animals (in the moral sense) is a scientific issue. This is a ground of deep disagreement between Professor Perisin and ourselves. Our analysis of the normative basis of animal welfare is intended to show that whether a given level or kind of animal suffering crosses the cruelty threshold is ultimately a moral question, one of conscience, of “beliefs that per se cannot be scientifically proven.” Professor Perisin characterizes the concern with the welfare of seals as based on “irrational, emotional attitudes.”
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YJIL Symposium: Beyond the (Cute) Face of the Matter: Aims, Coherence and Necessity of the EU Seal Products Regulations

by Tamara Perisin

[Tamara Perisin is a member of the faculty of law at the University of Zagreb]

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 article by Rob Howse and Joanna Langille on the EU Seal Products Regulations goes far beyond a case study on a challenged measure and pending dispute. The article places the WTO challenge in the context of the development of a regulator-friendly world trading scheme sensitive to Members’ values, such as animal welfare. At the core of the article lies a pluralist vision of the WTO allowing diversity and a high level of protection of non-protectionist aims. This is a vision to which I also personally subscribe.

However, beyond the underlying premises of the article, which I fully support, there are subtleties in the analysis of the particular EU measures which lead me to some different conclusions from those Howse and Langille reach. These conclusions, though, are not intended to endorse seal hunting. In this online symposium, I would like to open up several questions for discussion.

As a preliminary point, I have to admit that my views of the EU Seal Products Regulation and its Implementing Regulation are influenced by the legality and legitimacy problems which these measures face internally, within the EU. Both Regulations are currently under challenge before the ECJ as they might be contrary to the principles of conferred competences, subsidiarity and proportionality. The Seal Products Regulation was adopted on the basis of Article 114 TFEU which is supposed to serve for the establishment and functioning of the internal market. The EU legislature interpreted this legal basis very broadly to regulate a matter which is not very connected to the internal market, but (arguably) achieves animal health or moral aims for which the EU does not have the competence. Broad interpretations of this competence leave little room for any diversity, pluralism, and decision-making at levels closer to citizens (which are among the EU’s basic principles). So an entirely pluralist view actually goes against EU regulations in this area, as EU Member States themselves would have chosen different regulatory solutions for seal protection had they been left with that choice.

As regards the measures’ compliance with WTO law, this comment relies on the detailed analysis in Permitting Pluralism, and just focuses attention on the aims, coherence and necessity of the measures.
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YJIL Symposium: Non-Instrumental Public Morals Justification of Trade Restrictions: A Comment on Howse and Langille

by Isabel Feichtner

[Isabel Feichtner is a professor of law and economics at Goethe Universität Frankfurt]

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.

Robert Howse’s and Joanna Langille’s article on the Seal Products Dispute is a truly admirable piece of normative doctrinal scholarship. The authors do not hide their preferences with respect to animal welfare and the protection of seals in particular. Their propositions as to the interpretation of WTO law are, however, not merely guided by this specific policy preference. Instead their argumentation is supported by a larger vision of global governance and the proper balance between international trade law and domestic regulatory autonomy, all the while thoroughly grounded in the WTO’s own case law.

Having been consistently inspired and convinced by the writings of Rob Howse on the WTO I am not the one to argue with the authors’ reconstruction of the trade regime that emphasizes the need for deference to domestic regulatory choices and that wishes (where possible) to limit the disciplines of trade law to prohibitions of discrimination. Thus, I will not offer a fundamental critique. Instead I will take up what intrigues me most in their article — the notion of “non instrumental public morals justification” – and raise two questions: first whether the seals dispute is a suitable test case for such a justification given that the EU itself had to justify the trade restrictions in instrumental terms; and second whether public morals justifications — even though non-instrumental — should be submitted to some form of rationality test.

The (Non-)Instrumentality of the EU Seal Products Ban

For Regulation 1007/2009 to conform to EU law the Council of the European Union and the European Parliament had to argue that the seal products ban contained in this regulation was necessary for the functioning of the internal market. Since the EU treaties do not grant to the EU a competence to adopt a trade ban for the sole purpose of animal welfare protection, Council and Parliament based the ban on Art. 95 of the Treaty establishing the European Community (now Art. 114 Treaty on the Functioning of the European Union). For the same reason the trade ban on cat and dog fur in Regulation 1523/2007 was also based on Art. 95 TEC. This legal basis allows for “the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.” As a consequence of this choice of legal basis the seals ban had to be justified in terms of its instrumentality for the functioning of the internal market. A convincing case had to be made that the (almost complete) ban on trade in seal products within the EU pursued the objective of the functioning of the internal market.

As Howse and Langille have convincingly argued a measure may pursue multiple purposes. Indeed Art. 114 TFEU itself mandates the EU to pursue in its harmonization legislation a high level of health, safety, environmental and consumer protection. Whether the EU is competent, however, to pursue such aims in a non-instrumental fashion is open to debate. Taking a similar posture to the EU as Howse and Langille do vis-à-vis the WTO one may be inclined to argue that respect for member state diversity and value pluralism within the EU mandates a restrictive stance of the EU with respect to expressive legislation, signifying moral opprobrium.
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YJIL Symposium: The Seal Products Dispute and the Boundaries of Trade Law

by Simon Lester

[Simon Lester is the President of WorldTradeLaw.net and a trade policy analyst at the Cato Institute.]

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.

Over the past two decades, there has been an effort by many trade law academics and others to define the boundaries of international trade rules in a way that disciplines trade restrictions, while allowing sufficient policy space for governments to regulate in legitimate ways. Rob Howse has been at the forefront of this effort, having written numerous articles, on a variety of trade law topics, that address various aspects of these issues. In their YJIL article on the WTO Seal Products dispute, Rob and Joanna Langille continued this effort, by trying to address this problem in the context of a specific kind of measure, one that involves what they refer to as “expressions of intrinsic moral or spiritual beliefs”. (In the case of the seal products ban at issue, it is “the community’s ethical beliefs about the nature of ‘cruelty’ in the unacceptability of consumption behavior that is complicit with that cruelty.”) They argue that WTO law should allow such measures, even if trade is restricted as a result. More generally, they articulate a vision of “pluralism” under the trade regime that “recognizes the importance of expressive, non-instrumental rationales for state decision-making”.

A specific focus of the piece is the distinction between “instrumental” and “non-instrumental” measures. The authors note that while a traditional means/ends analysis can be used to deal with trade concerns arising from instrumental measures, such as those intended to promote human health, this kind of analysis cannot simply be transposed to non-instrumental regulation, which expresses moral, spiritual or ethical beliefs. The means do not relate to the ends in the same way with such measures. One of their goals, then, is to ensure that non-instrumental regulation does not fall through the cracks of the usual approach to setting appropriate boundaries for the trade regime. If the typical means/ends analysis will not suffice, they say, it must be adjusted to deal with the special situation of non-instrumental regulation.

In response to this point, it could be argued that a means/ends analysis is not always ideal even where instrumental measures are at issue. It evaluates the effectiveness of the measure more than its true purpose or trade impact. I don’t mean to suggest that such a test is completely irrelevant for evaluating trade restrictions. Rather, I wonder whether other factors are perhaps more important and should be the focus.
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YJIL Symposium: Introducing Permitting Pluralism

by Robert Howse and Joanna Langille

Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law. Joanna Langille is a 2011 graduate of New York University Law School.]

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.

Our article examines the extent to which countries can use animal welfare concerns to justify placing restrictions on international trade, under the law of the World Trade Organization (WTO). We argue that noninstrumental moral and religious concerns are a legitimate source of trade policy. To make this claim, we examine a current WTO dispute between the European Union (EU), Canada, and Norway. The European Union has banned seal products from being sold in the European Union, because of animal welfare concerns regarding how the animals are hunted and skinned. Canada and Norway have challenged this regulation at the WTO, arguing that animal welfare is not a legitimate objective for restricting trade.

First, we show how animal welfare has long been a motivation for prohibitive legislation, both in Europe and elsewhere, and that animal welfare concerns have prompted the European Union to take numerous prior efforts to promote seal welfare.

Second, we argue that the EU measure was taken because of the moral belief that animal welfare should be protected, a belief related both to avoidance of actual suffering of animals and the appropriate human attitude toward their treatment; the EU measure was motivated by a sincere and genuine desire to protect seals from cruelty and to express the belief that it is morally unacceptable for the EU to be complicit in the cruelty inherent in the production of seal products through the consumption of products that result from these practices.

Third, we explain that the EU measure does not violate any WTO provisions and, even if it did, it could be justified under the General Exceptions clause (Article XX) of the General Agreement on Tariffs and Trade (the primary source of WTO law on trade in goods).

Finally, we set out the strong institutional reasons to avoid interpretations of WTO law that would deny countries the ability to regulate for moral reasons. If the WTO were to do this, it would risk attempting to impose a secular, materialist, instrumentally rational worldview on its member states. Instead, the WTO should permit pluralism—competing notions of righteousness—and allow countries to regulate for moral reasons (with the recognition of course that states are also bound by non-WTO norms, such as international human rights law, which also shape the limits of their prerogative to regulate morality). The WTO legal framework, moreover, must be read so as to accept that animal welfare measures may at the same time have both a utilitarian or instrumental aspect (improving animal welfare outcomes) as well as an expressive aspect, indicating moral opprobrium at the inhumane treatment of animals.

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

by Margaux Hall and David Weiss

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.
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YJIL Symposium: Human Rights and Climate Change: Perspectives on the Value Added of Human Rights Law

by Siobhan McInerney-Lankford

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

by J.B. Ruhl

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

by Robin Kundis Craig

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

by Bonnie Docherty and Tyler Giannini

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.
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YJIL Symposium: Introducing Adaptation Apartheid

by Margaux Hall and David Weiss

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

by Editors of the Yale Journal of International 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.

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 37, Issue No. 2. Our sincere thanks to An Hertogen and the rest of the Opinio Juris team for hosting this exciting discussion.

First, in Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law, Margaux J. Hall and David C. Weiss discuss how international human rights law can inform and guide policy decisions regarding climate change adaptation. They argue that incorporating human rights considerations into adaptation policy can help to moderate or avoid the growing threat of “adaptation apartheid” that will result from unequal global adaptation to the effects of climate change. Their introduction to the discussion and the comments will be posted throughout today and tomorrow.

Second, in Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values, Robert Howse and Joanna Langille examine the extent to which countries can use animal welfare concerns—and non-instrumental moral values more broadly—to justify placing restrictions on international trade under the law of the WTO. Using the Seal Products dispute, the authors conclude that the WTO should not deny countries the ability to regulate for moral reasons and risk imposing a secular, materialist, instrumentally rational worldview on its member states. Instead, the WTO should permit pluralism—competing notions of righteousness—and allow countries to regulate for moral reasons. Their introduction to the discussion will be posted on Thursday.

Although this discussion will focus on those articles, we would like to introduce the third article of the issue. In Prospective Advice and Consent, Jean Galbraith proposes an approaching for improving the current system of treaty ratification. She argues that the current system, in which the President negotiates a treaty and the Senate then provides advice and consent, is not constitutionally determined and the that the order should be reversed under certain circumstances. The present system of advice and consent after negotiation and signature limits the number of treaties that can be made under the Treaty Clause, slows the entry into force of even minor treaties, and leads to intentionally endless delays (amounting to outright deaths) for major multilateral treaties. By having broad-brush advice and consent precede treaty negotiation and signature, Professor Galbraith argues, the United States could greatly improve the efficiency of its treatymaking process and increase its negotiating power at the international level.

We look forward to the discussion.