UPDATED: Climate wars and international law: Part One

Today’s guest blog by law professor Craig Martin  is the first of a two-part series, with the second to appear in the Rideau Institute blog on Monday 24 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.

Rideau Institute President Peggy Mason comments:

We are extremely pleased to promote wider attention to these commentaries – and the larger 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 this year of cascading crises, the climate change crisis is slipping off the radar. Not only that, but the Coronavirus pandemic and the resulting economic crisis are likely to interfere with both our will and our ability to respond to the climate change crisis. And yet, as many others have noted, there are many similarities between the pandemic and the climate change crisis, and there are lessons to be drawn from the pandemic in how we think about responding to climate change.

In this two-part essay I want to focus on how these crises implicate overlooked national security issues. More specifically, I examine how the climate change crisis will increasingly come to be seen in national security terms, and why we need to start thinking about how it will affect international collective security systems. As I have explored in a recent article,  Atmospheric Intervention? The Climate Change Crisis and the Jus ad Bellum Regime, the climate change crisis will begin to exert pressure for changes to the jus ad bellum regime, and now is the time for us to begin considering and discussing how best to respond to that pressure.

In Part I of this essay I examine how excessive state contributions to climate change will come to be viewed as threats to international peace and security justifying collective action, and I examine in Part II how the jus ad bellum will be implicated, and why we need to begin now addressing the problems this will create.

Reframing Security

This is not merely about the crisis becoming securitized, but also about it causing a reframing of security. The Coronavirus crisis already has many people questioning the scope and focus of our national security efforts and expenditure, and re-framing national security in terms of human security. The threat of a flu-like pandemic was not only foreseeable, but was explicitly predicted not long after the SARS epidemic in 2003, and yet largely because the U.S. ignored the threat and was woefully unprepared, the pandemic has already killed over 160,000 people, and is projected to kill another 150,000 before the end of the year. Tens of thousands of those deaths were caused by inadequate preparation and response.

Consider those numbers relative to the 3,000 killed in the 9/11 terrorist attack. And yet, in the time since 9/11 and the SARS epidemic in the early 2000s, the U.S. has myopically devoted massive resources and effort to defend against a narrow range of national security threats, particularly transnational terrorism, that posed a far lower a risk to the population than this pandemic. As Oona Hathaway and others have begun to argue, the pandemic requires us to begin approaching national security in terms that respond to more broadly defined global threats to human life. The threat posed by the climate change crisis, of course, completely dwarfs the harm being caused by the Coronavirus pandemic. It is inevitable that we will begin to frame that threat in terms that blend elements of human, national, and international security.

Causes of Climate Change as National Security Threat

In addition to the threat to human life and welfare more broadly, the threat of climate change will also directly implicate national security, and our collective security system, far more than many seem to realize. The U.S. Department of Defense (DoD) and National Intelligence Council, as well as defense ministries and intelligence agencies of many other countries, have long identified the consequences of climate change as both a direct and indirect threat to national security, as traditionally defined. Indeed, the threats to national security posed by the consequences of climate change come in so many forms and at so many levels, that it is hard to catalogue them—but it is the sheer scale of the combined threats that is really hard to get one’s head around.

One study by a team of climate scientists and national security analysts concluded, in a book published in 2008, that even a relatively modest increase of 1.3 degrees Celsius over pre-industrial levels by 2040, would result in significant increases in famines, pandemics, the widespread dislocation and migration of populations, the failure of weak states, and thus increased incidence of both internal and interstate armed conflict.

The study also assessed the likely consequences of an increase of 2.6 degrees Celsius by 2040, based on the real possibility of non-linear temperature increases resulting from cascades and negative feedback loops, once the complex climate system reached certain tipping points. The predicted consequences in this scenario are catastrophic, with massive migration flows, extensive starvation and severe pandemics feeding into wide-spread regional armed conflicts, the complete collapse of many less resilient states, the failure of major international institutions, including the U.N. itself, and pervasive retreat from democracy around the world.

The third scenario in the study looked further out towards the end of the century, with a possible increase of over 5 degrees Celsius, and described a real dystopian sci-fi horror film-like scenario, with an existential threat to human civilization as we know it, in which “the world will be caught up in an age where sheer survival is the only goal.” This three-scenario study is already out of date, and overly optimistic, given that the very best-case scenario now predicted by the IPCC is that we will likely be at or over 1.5 degrees Celsius by 2040. Moreover, some of the tipping points that could give rise to non-linear increases, such as the release of large amounts of methane in the Arctic, are being reached sooner than expected. The worse case scenarios thus look increasingly more likely.

The general public in most countries have been slow to recognize the urgency of this crisis, but as it begins to manifest itself in more concrete and frighteningly harmful ways, publics will begin to appreciate the magnitude and severity of the threat. As that happens, climate change will come into focus as the serious national security threat that it actually is, with apathy turning to fear and increasingly shrill demands for government action. This will lead to an important shift in how states perceive and characterize this threat—from merely viewing the consequences of climate change as being a national security threat, to seeing the causes of climate change as also constituting a threat.

That is, the conduct of those countries that are deemed to be recklessly contributing to climate change, in flagrant violation of their climate change law obligations—“climate rogue states”—will be seen as a threat to international peace and security, justifying collective action up to and including the threat or use of force.

Climate Rogue States and the Collective Security System

As I explain in my article, the international climate change law regime is sufficiently well developed to provide the framework and metrics for rough determinations as to which states are “rogue,” but not yet sufficiently capable of mobilizing compliance so as to adequately address the crisis. As a result, other areas of international law, including the collective security regime, will be invoked to exert pressure on states viewed as excessively contributing to climate change. There has already been pressure on the U.N. Security Council to take up the issue of climate change, and to define climate change as a threat to international peace and security. It has already linked certain conflicts in Africa to climate change, and defined the Ebola pandemic of 2014 as a threat to international peace and security.

It is not difficult to foresee the day when there will be calls for the Security Council to identify the climate change contributions of specific states as constituting a threat to international peace and security pursuant to Art. 39 of the Charter.

From there it is but a small step to demand collective action under Chapter VII of the Charter, beginning with economic sanctions, and leading all the way to calls for authority to threaten or use force under Art. 42 of the Charter. When that fails, it is not that large of a leap to imagine states claiming a collective but unilateral right to threaten or use force against climate rogue states. Even just establishing the putative validity of such action will be considered important as a means of shaping rogue state behavior. Force would be seldom if ever used, just as it has been rarely used against nuclear rogue states—and if used, it would be surgical strikes along the lines of the Israeli Osirak action in 1981, not regime change attacks such as the invasion of Iraq in 2003.

This may sound radical and unlikely today—but there have already been suggestions along these lines in the public discourse. Last summer, when there was alarm over the pace of Brazilian deforestation of the Amazon, there were several pieces in mainstream media questioning whether states could use force to prevent such threats to the world. It may be objected that all states are to varying degrees guilty of contributing to the threat, that there is no clear legal basis for defining with any kind of precision so-called “climate rogue states,” and that some of the most powerful states are the worst offenders—all of which militates against the developments I am suggesting.

The point remains, however, that states have a tendency to shift blame to foreign scapegoats in a crisis, even those crises that by their very nature demand cooperation to resolve; and states tend to look to existing legal frameworks to lend legitimacy and power to their political attacks on those scapegoats. The efforts of the United States to blame China for the Coronavirus pandemic, invoking the law of state responsibility in the process, is just the most recent example of this. The manner in which the nuclear non-proliferation treaty regime has been used to ground claims that Iraq, Iran, North Korea, and before that Libya and others, were “nuclear rogue states,” is yet another.

PART II of this essay, to be featured in the Rideau Institute blog on Monday, 24 August, will examine how these developments are likely to result in pressure for change to the jus ad bellum regime, and why it is essential that we begin turning our attention to the issue now.

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.  

 

NEWSWORTHY UPDATES

Canada forging ahead on acquisition of armed drones

Vice News reported on 12 August that the Canadian government was “forging ahead” with plans to set up its own fleet of armed drones, joining several of its NATO allies.

There are many legitimate military uses for armed drones, as the Rideau Institute explored in a report authored by Professor Michael Byers back in 2015. But their widespread misuse by the United States as a means of extra-judicial killings, allegedly justified in its global war on terror, underscores the need for both a tight international regulatory regime and a crystal-clear Canadian policy regulating exactly when and how they will be used.

Some troubling aspects of drone technology are examined in a June 2017 Rideau Institute blog entitled Armed drones may be prone to targeting errors, which in turn references another article by today’s guest blogger, Craig Martin.

For his part, Matt Korda, a Canadian working for the Federation of American Scientists, raises a range of extremely troubling issues about how Canada is approaching the defence procurement process for the armed drones, seemingly incorporating the worst features of American policy into its approach. He writes:

Disturbingly, in its “Letter of Interest” to industry suppliers, the Canadian government laid out a potential scenario in which its own drones could be tasked to perform a very similar strike mission to those regularly conducted by the American military.

For the full article, see: Canada is Buying a Fleet Of Armed Drones. We Should All be Worried (readpassage.com, 19 August 2020).

Whither Canada?

We repeat our call for Canada to actively pursue, preferably through the United Nations, a tight international regulatory regime for the restricted deployment and use of these weapons. This regime should build on current international law, be rooted in the principles of responsibility, transparency and accountability, and focus on protection of civilian populations and property.

Good News on Libyan Ceasefire!

 We are pleased to end today’s blog with the news that a nation-wide ceasefire has been agreed in Libya.  The UN Support Mission in Libya welcomed this development, called for the expulsion of all foreign forces and mercenaries in Libya, and urged for a resumption of political dialogue to end the military conflict.

Photo credit: Pixabay TheDigitalArtist

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