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.

Protecting human rights is an important part of our proposed international instrument. Borrowing from the Refugee Convention’s principles, we argue the instrument should guarantee civil and political rights, such as access to courts and freedom of association, which provide tools for refugees to protect their own interests. In addition, the instrument should articulate economic, social, and cultural rights, which are crucial for the refugees’ survival in their new home. These rights should ensure assistance ranging from rations to housing to education to employment benefits. Freedom of movement should also be guaranteed, and under the principle of non-refoulement, climate change refugees should not be forced to return to their home state. States parties should apply all of these provisions in a way that does not discriminate against members of particular groups, another key element of a human rights framework. Significantly, human rights law shifts the focus from relations between states to relations between states and individuals. Identifying discrimination between states, for example, requires a different analysis than examining whether there is discrimination (either de jure or de facto) against a particular group, such as women.

Our proposal’s model of shared responsibility also draws from international human rights law. Hall and Weiss argue that human rights law is useful for adaption in part because it imposes “vertical” duties on a state to protect people within its borders. Our proposal similarly recommends that the host state into which climate change refugees flee should bear primary responsibility for their care. At the same time, we call for international cooperation and assistance, which has some precedent in human rights law, to help spread the burden. Hall and Weiss discuss such “diagonal” responsibility in the mitigation context but question it there because it is difficult to enforce. We believe that diagonal responsibility should not be dismissed in the adaptation context, however, because it can bolster protections when it serves as a supplement to rather than substitute for vertical responsibility.

Finally, a human rights approach can inform the processes underlying an international climate change refugee instrument. Our proposal looks to participatory rights in multiple ways. We recommend creation of a coordinating agency to support implementation of the convention; the agency should not only work with governments, but should also consult with climate change refugees themselves and involve them in decision-making. In addition, our suggested treaty negotiation process would be an inclusive one that would rely heavily on the input of both civil society and affected individuals. Our proposal on this front echoes some of the advantages, discussed by Hall and Weiss, of applying a human rights approach to adaptation. In particular, the authors argue that a human rights framework would involve affected communities in decision-making and establish accepted standards that lead to political mobilization.

As exemplified by the climate change refugee case study, a human rights approach to climate change can be applied effectively to adaptation internationally as well as nationally. At both levels, it helps focus attention and legal analysis on individuals, not just states. International adaptation measures should not, however, draw only on human rights; an interdisciplinary approach that takes into account several bodies of law can prove valuable. Our proposed climate change refugee instrument turns to international humanitarian law for victim assistance guidelines, additional precedent for international cooperation and assistance, and a treaty negotiation model. It looks to international environmental law for technical guidance on a funding mechanism and a body of scientific experts. Climate change is a global problem that negatively affects both people and the environment. International approaches to minimizing its impacts should build on all applicable and effective legal frameworks that are available so that climate change does not lead to apartheid-like practices where the haves and the have-nots are separated in the decades to come.