Climate Wars and International Law: Part Two

Today’s guest blog by law professor Craig Martin  is the SECOND of a two-part series, with the FIRST having appeared as our Ceasefire.ca blog on Friday, 21 August. These commentaries were first published on Opiniojuris on 13 August here and here.  They appear again here with the kind permission of the author, who is a Canadian lawyer, currently teaching in the United States.

In introducing this series on 21 August, Rideau Institute President Peggy Mason reflected:

We are extremely pleased to promote wider attention to these commentaries – and the longer article on which they are based – raising as they do issues central to our collective efforts to avoid climate catastrophe and curb “climate rogue states” without undermining key international legal guard rails on the use of force between states.

Introduction

In Part I of this essay I explained that as the consequences of the climate change crisis worsen, states will increasingly characterize the actions of “climate rogue states” as a threat to national security, leading to calls for the UN collective security system to be employed to enforce international climate change law obligations.

In this Part, I examine how these developments are likely to result in claims that the jus ad bellum regime should be relaxed to permit unilateral action against climate rogue states, and why we need to begin considering the implications of such developments now, while the Sirens’ song is still distant. (And all of this is explored in much more detail in a recent article on these issues).

Coming Pressure on the Jus ad Bellum Regime – Expanding Self-Defense

As mentioned in Part I, the UN Security Council is unlikely to authorize any use of force against climate rogue states, not least because many of the permanent members are among the worst contributors to climate change. There will be calls for other avenues of approval, such as through the General Assembly, along the lines of the Uniting for Peace Resolution. But we may also predict that there will be increasing pressure to expand the exceptions to the prohibition on the use of force in the jus ad bellum regime, either by relaxing the conditions for self-defense, or by creating a new exception for “atmospheric interventions,” in order to permit the threat or use of unilateral force to address the threat created by climate rogue states. We have seen such claims before, in response to other allegedly new and novel threats, and those claims provide a ready guide to the kinds of arguments we may predict will be advanced to address these new threats.

An expansion of self-defense along these lines no doubt sounds outrageous today, given that the “threat” posed by climate rogue states is not in the form of anything remotely like a use of force, far less an armed attack—and it will be recalled that self-defense is only permitted in response to an armed attack. But it will also be recalled that there have been several strong claims made in the last couple of decades for similar expansions of the doctrine of self-defense. These recent claims have included efforts to relax and weaken the doctrine in a number of ways: in the form of preventative self-defense to deal with the threat of weapons of mass destruction wielded by “nuclear rogue states;” in the form of the “unwilling or unable” doctrine to deal with transnational terrorists in non-consenting states; and to permit the use of force in response to cyber-attacks by either states or non-state actors (NSAs). All of these efforts sought to weaken the criteria for “armed attack” as the triggering condition for self-defense, and to pervert the concept of imminence, all of which undermined the core principle of necessity. They also attempted to weaken aspects of causality and attribution in applying self-defense to the actions of NSAs.

And while these efforts were not entirely successful, they have nonetheless managed to erode and weaken the constraints of the jus ad bellum regime, and indeed the struggle to resist some of these efforts continues.

New Exception to Article 2(4) – Atmospheric Intervention

Nonetheless, the effort to expand the doctrine of self-defense to encompass the threat posed by climate change would be radical indeed. The more likely effort will be for the creation of a new exception to the prohibition against the use of force in order to permit collective but unilateral “atmospheric intervention,” in order to force climate rogue states to alter their behavior. Here again, the precedent has been set by efforts to create a new exception to permit unilateral humanitarian intervention. And thus, again, we may predict that efforts to establish some kind of atmospheric intervention will simply build on the arguments already made by advocates for unilateral humanitarian intervention, borrowing frameworks like that suggested by Harold Koh, to ensure that the intervention is necessary, proportionate, collective, and so forth.

While humanitarian intervention remains controversial, and is likely unlawful today, even its opponents tend to concede that there are strong ethical arguments in its favor. The ideas underlying the Responsibility to Protect, that a state abdicates some of its sovereign rights when it engages in crimes against humanity against its own population, has powerful intuitive and moral appeal. This is compounded when one accepts that such humanitarian crises typically spills across borders and threatens the security of neighboring states. But these arguments would be far stronger for action to prevent the threat to humanity, and to international peace and security, posed by climate rogue states.

If a state should lose its sovereign right against intervention because it is threatening the survival of a segment of its own population, surely its sovereign rights should be even more diminished if its actions are threatening all of humanity and contributing to increased conflict everywhere.

And so, as with arguments for humanitarian intervention, advocates for atmospheric intervention will suggest that while UN Security Council authorization would be best, followed perhaps by UN General Assembly approval, in the absence of such approval collective but unilateral action must be permissible so long as the established framework of conditions and limitations is adhered to.

Reasons for Concern and Resistance

As outlandish as these arguments may seem at first blush, upon some reflection several aspects of the rationale underlying them is actually stronger than the rationales for the recent efforts to expand the jus ad bellum. I have noted above some of these in relation to the rationales for humanitarian intervention. But there are broader reasons why all of these predicted efforts will be more persuasive than the recent efforts to address other threats. As I have argued elsewhere, a major objection to some of these efforts to relax the doctrine of self-defense, such as for purposes of addressing the threat of transnational terrorism, is that they are myopically counter-productive. That is, the increased risk of war caused by such relaxation is far greater than the narrow threat that the changes are aiming to address. But in the context of climate change, when the threat is actually existential, with both the magnitude of the harm being massive and the probability of its manifestation increasingly certain, that calculus is turned on its head—the risk posed by the potentially increased incidence of armed conflict is dwarfed by the existential risk posed by climate change. If changes to the jus ad bellum regime could help with changing state behavior on climate change, then it might thus be justified, even if they increase the risk of war.

Precisely because they will be persuasive, these arguments are cause for concern.

Because, at the end of the day, I think such arguments should be rejected, and that efforts to expand the exceptions in the jus ad bellum regime for these purposes should be resisted. For reasons that I explore in the article but will not belabor here, when one examines the issues more deeply, and increases the scope of analysis to include a broader range of factors, efforts to expand the jus ad bellum to permit the threat or use of force against climate rogue states would still end up being counterproductive: Securitization of the crisis in this way will have a host of collateral and negative implications; as with humanitarian intervention, there will be risks of pretextual exploitation of any new doctrine for narrow self-interested purposes; any threat or use of force is likely to be employed against weaker states of the global South, compounding existing problems around climate justice and equity issues; and it is impossible to see how such uses of force would not violate other international law regimes.

Thus, in the end, such developments would undermine not only the jus ad bellum regime itself, but also the climate change law regime and the international rule of law to boot, and would actually frustrate other efforts to combat climate change.

Of course, similar kinds of objections have not stopped governments from continuing to exert considerable pressure to relax the jus ad bellum regime for purposes of allowing states a wider range of action in addressing allegedly new and novel threats. Indeed, the struggle to resist those efforts continue today. Thus, we might turn our minds now to how we might resist the future arguments for change. In constitutional law theory there is the idea that provisions of a constitution serve as “pre-commitment devices.” These are mechanisms designed to constrain government action in the future, particularly in times of crisis, when rational heads are not likely to prevail. Like Odysseus having himself bound to the mast to resist the fatal songs of the Sirens, legal provisions can constrain governments from intemperate action that would be inconsistent with fundamental values and long-term self-interest.

We might borrow from constitutional theory in thinking creatively of ways to develop mechanisms to entrench and strengthen the resilience of jus ad bellum principles, to protect them from the coming intemperate pressure for change.

Conclusion – Time for Debate

It may seem rather strange to develop a set of arguments, espouse the power and coherence of their underlying logic, only to then condemn them and advocate for their rejection. But my basic point is that, sound or not, these arguments will be made, and pressure will be brought to bear on the jus ad bellum regime. As unlikely as it may seem to us now, when the consequences of the crisis become more critical, governments will start to characterize the reckless contributions of other states to climate change as constituting a threat to national security, and they will start to look for ways to take action against such “climate rogue states.” Recent efforts to relax the jus ad bellum regime provide a ready guide to how those claims are likely to be developed. The arguments that we may predict are coming will have considerable traction and persuasive power.

If we think that such efforts would be dangerous and counterproductive, as I do, then now is the time to begin talking about how to resist such pressure, and thinking about what kinds of pre-commitment devices might help preserve the jus ad bellum regime, before the sense of crisis really sets in and decisions are driven by fear and urgency.

 

***

Craig Martin is a Professor of Law and the Co-Director of the International and Comparative Law Center at Washburn University School of Law in the United States. He is a graduate of R.M.C. and served as a Naval Officer in the Canadian Armed Forces. He studied law at the University of Toronto, and received graduate degrees from Osaka University and the University of Pennsylvania. He practiced law in Toronto before joining the legal academy. While in the Canadian military, Craig Martin spent time serving in Canada’s mission to the United Nations in New York, working with Canada’s then Ambassador for Disarmament, Peggy Mason.  

 

 

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