Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law

There is now little doubt that humans will be forced to adapt to impacts of a warming world. Scant doubt also remains that it is the poorest people in the poorest countries who will, in large part, bear the burden of adapting to climate consequences they had almost no role in creating. Vast inequities in resources create a gulf between richer and poorer countries’ abilities to adapt, creating what Desmond Tutu has described as “adaptation apartheid.” The unknowns in climate change discourse, however, are the extent of climate change that will take place and the level of harm to global citizens. The first unknown will depend on the success of the international community’s efforts to mitigate climate change by reducing greenhouse gas emissions, while the second unknown will depend in large part on the success of efforts to adapt to climate change by taking proactive or reactive steps to safeguard human lives and wellbeing. Although human rights have been increasingly brought to bear to address the challenge of climate change, thus far analyses linking human rights and climate change have focused primarily on mitigation, giving short shrift to adaptation. Practitioners and commentators have recognized the difficulty of applying human rights law to the global, management-based problem of mitigation because legal duties only extend within territorial boundaries to state actors and because it is difficult to tie a particular government’s actions or inaction to a given harm. But human rights can and should be a practical tool to address climate change adaptation, which can take place at the state or community level. Although the largest emitting countries should be held normatively accountable for the bulk of climate change response, all states have responsibility for their adaptation decisions, particularly as sizeable adaptation funding starts flowing to developing countries – at the most basic level, states should adapt to the maximum of their available resources and not engage in discriminatory adaptation practices. In turn, adaptation’s unique characteristics make it an optimal candidate for a human rights approach. Consequently, governments and communities should use human rights principles to inform adaptation project selection and implementation.