8 November 2021 – by Ole ter Wey
“It’s an act of sabotage on our future, a reckless and totally irresponsible act.”[i]
Such was the reaction of climate official Ian Fry, from the tiny South Pacific Island nation of Tuvalu, to Canada’s withdrawal from the Kyoto Protocol. The Kyoto Protocol was adopted in 1997 and represents the first instrument in international law to contain legally binding greenhouse gas limitation and reduction commitments for industrialized countries. As such, Canada’s withdrawal from this legal milestone not only directly worsens the situation of threatened states such as Tuvalu through its apparently intended increase in greenhouse gas emissions, but also sends an ominous signal to the rest of the world, potentially opening the door for other states to follow suit.
Tuvalu is one of the countries suffering the most from the consequences of climate change. Rising sea levels are causing the erosion of ever larger coastal areas of the island nation’s low-lying atolls (coral reefs).Groundwater is becoming saline, threatening both food crops and drinking water supplies, and the increasing number of storms is destroying vital infrastructure in the country. Thus, Fry’s statement can be understood as an example of a global trend: the consequences of climate change are increasingly being recognized as a massive threat to peace for more and more states.
Examples of possible sources of conflict arising from climate change include the struggle for resources[ii], food scarcity[iii], and forced migration, with estimates for the year 2050 ranging from 200 million[iv] to 1 billion[v] climate refugees. The view that not only the consequences, but also the underlying causes of climate change, can be perceived as a threat to peace in their own right, seems set to gain acceptance.[vi] And these very causes of climate change can, in turn, often be clearly attributed to the actions of certain states.
Based on this extremely limited introduction, it becomes important to consider the question of whether states whose citizens, economies, and cultures suffer particularly severely from the consequences of man-made climate change may, under certain conditions, resort to the use of force against the polluter states.
In what situations might the use of force in the name of climate change be legal?
There are two possible scenarios under which the use of force may be legal: in the name of self-defense, or with the permission of the UN Security Council.
Regarding self-defense, Article 51 of the UN Charter (1945) states an “inherent right of individual or collective self-defence if an armed attack occurs against [themselves or another] Member of the United Nations”. If this is interpreted literally, the legality of the use of force against “climate rogue states”[vii] can already be ruled out. Without wanting to belittle the threat of heavy Green House Gas (GHG)-emissions, this is definitely a different kind of threat than ‘an armed attack’.
However, if one takes the commonly accepted requirements of the so-called ‘Caroline Test’, a closer look is worthwhile. The Caroline Test lists a number of criteria that must be met for the right to practice self-defense. In the original formulation of this test (Webster, 1841) it says that, “a use of force can [only] be admissible if there is ‘a necessity of self-defence, instant, over-whelming, leaving no choice of means, and no moment for deliberation’. Moreover, ‘the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it’.”[viii] In essence, this test argues that the two key requirements to justify the use of force in self-defence are ‘necessity’ and ‘proportionality’. While ‘proportionality’ determines the intensity of force that may be used, the requirement for ‘necessity’ determines whether a resort to the use of force is permissible at all. Thus, the necessity criterion is more interesting for us at this point.
Especially given the Test’s requirement for a threat to be ‘instant [and] over-whelming’, it would seem, given that GHG emissions don’t instantly affect populations, that the necessity criterion cannot be fulfilled. The reality is that many of the harmful effects of climate change take years or decades to come to light, and the delayed effects of emitted GHGs make it extremely difficult to attribute a specific consequence of climate change to a specific state. Thus, at least in the current state of climate change, under this framework it would be argued that states do have the time and therefore possibility to choose other means than force, which in turn must always be a last resort[ix]. In summary, then, “[u]nless the global climate was at a tipping point, and the attacking state or coalition knew it, the imminence of the threat implied by necessity would be absent.”[x]
Instead, the justification for a military strike against GHG-emitting facilities through anticipatory self-defense seems more realistic. This is because such a military strike would involve the pre-emptive thwarting of probable harm emanating from a state which is either unwilling or unable to stop this harm from happening, just as the theory of anticipatory self-defense states. However, the application of this particular variety of self-defense is highly controversial. Many scholars believe “that the pre-emptive use of force against emerging threat(s) is unauthorised under existing legal framework.”[xi]
As such, the use of force against climate rogue states cannot be justified on the basis of Article 51 of the UN Charter as acts of self-defense, at least for the time being. The other alternative for nations to legitimize a resort to use of force would be by being granted permission from the UN Security Council (UNSC). As a first step in this respect “[t]he Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.”[xii] This type of determination of threats to global peace is usually expressed in a UNSC resolution. Such resolutions not only officially determine that the situation in question is a legitimate threat to the peace, but also provide recommendations or decisions regarding “what measures shall be taken […] to maintain or restore international peace and security”.[xiii] Article 41 of the UN Charter lists a number of peaceful means by which the identified threat to peace shall be overcome. However, if these peaceful means were deemed by the UNSC to either have failed or to be inadequate, the resort to the use of force would be possible[xiv].
Because such a UNSC resolution does not exist as of today[xv], it would be tempting to dismiss this approach as irrelevant. However, this would be too simplistic. In general, the UNSC has an obligation to determine threats to peace[xvi]. A glance at the past shows that this can also involve categories of illicit conduct other than classic, direct violations of the sovereignty of states. In 1992, for example, the UNSC confirmed that “[t]he absence of war and military conflicts among States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.”[xvii] Thus, it is by no means impossible that calls for climate change to be classified as a threat to peace[xviii] will be heard. And indeed, there have been repeated shifts in this direction in the recent past.
The UNSC, for example, “has held four open debates specifically on climate security risks”[xix] already. At the most recent of these open debates, climate change was unanimously referred to as a ‘threat multiplier’[xx], but no agreement could be reached on a classification as a threat to peace itself. Since two or three of the five permanent members with veto power in the UNSC, China and Russia, and in recent years also Trump’s USA, have taken the politically motivated stance that “[i]n fact, qualifying climate change as a threat to the peace was, in their view, neither ‘right’ nor beneficial”[xxi], this classification is not to be expected in the near future.
How might this change in the future?
Nevertheless, should climate change be classified as a threat to peace at some point, the whole situation could possibly change very quickly. The effectiveness of peaceful means can already be doubted from today’s point of view, since neither the Kyoto Protocol nor the Paris Agreement can be considered to have effectively halted climate change and GHG emissions[xxii]. Were a Security Council resolution to be passed, it could open the door for the use of force against climate rogue states. For very practical reasons, however, it must be asked at this point whether this would actually be effective, either in combating climate change, or in furthering and protecting human rights at all. If a tiny state like the aforementioned Tuvalu suddenly had the theoretical right to take military action against a large country like Canada, it would still lack the means to do so. Thus, the jus ad bellum wartime principle of ‘probability of success’, in contrast to the other principles[xxiii], could not be fulfilled under any circumstances[xxiv]. The principle of ‘probability of success’ states that war can only be justified if such violence has a real chance of changing the causal grievance in the long run. If Tuvalu is now apparently justified in using force against Canada due to changed conditions, there is still the question of how it should win this war. Tuvalu does not have an army, and if one were to be created, it would almost certainly not be able to take on the Canadian army. A tiny country like Tuvalu trying to take military action against a superpower like Canada is likely to cause harm and loss of life, but has very little chance of bringing about change.
From this point of view, the proportionality of military action is also highly questionable. Because the principle of proportionality prohibits any “attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”[xxv] The invoking of the right to collective self-defense could provide a remedy[xxvi]. Going beyond this, the question may even arise, “[i]f a state pursues or allows very damaging activities that harm its own population or the international community as a whole through climate change, would it be legal to use force to stop those activities in the name of humanitarian intervention or the Responsibility to Protect [R2P]?”[xxvii]. However, this would only be possible if the UNSC classified the consequences of climate change as a mass atrocity crime[xxviii]. Additionally, the status of R2P is also controversial[xxix].
Conclusion
The scope of this paper could only provide a very rough framework. Nevertheless, it was possible to show why there is currently no legal resort to the use of force against climate rogue states and under what circumstances this assessment could change in the future. In addition to these findings themselves, however, it is momentous that such deliberations are taking place at all. Of course, no one wants to see countries become violent in the name of climate change, nor to see the devastation of communities, cultures and infrastructure that comes with war and violence. That the use of force is even being discussed is testament to the fact that there is still no actual, reliable way of holding states accountable for their international climate responsibilities. Countries and ecosystems around the world are at a breaking point, and in the not-too-distant future, the progress of climate change could lead to an even more frightening scenario.
Given that climate change is already triggering violence today, as destroyed homes or impeded access to drinking water might cause people in hardship to resort to violence in order to ensure their survival. If those states, whose citizens are worst affected, in their desperation see no other way out than using force against climate rogue states to stop them from causing further harm, we could see a rapid downturn into a new spiral of violence. Finding a way of holding states accountable for their international climate responsibilities is urgently needed, because otherwise violence will not only increase as a consequence of climate change impacts, but seems likely to also increase as an attempt to control the reckless actions of other states.
However, as explained in detail above, the use of force would not even come close to solving the problems caused by climate change. It must therefore be a top priority that international cooperation eventually lives up to its name and that a viable solution for the well-being of all in the face of the changing climate is found and implemented. We need to finally come together as an international community in holding nation states accountable – because only in this way can we ensure that this paper remains what it is: the description of an intellectual, purely theoretical thought experiment.
Ole ter Wey is currently studying International Law and Human Rights at the UN-mandated University for Peace in San José, Costa Rica. He previously lived with a local community in Kiribati for over a year. There, he experienced first hand the consequences of climate change endangering the existence of an entire state. It was then that he began thinking about how to address forced migration and dedicated his Liberal Arts Bachelor to the topics of migration and integration.
References
[i]Carrington, Damian (2011): Canada condemned at home and abroad for pulling out of Kyoto treaty. London: The Guardian. https://www.theguardian.com/environment/2011/dec/13/canada-condemned-kyoto-climate-treaty
[ii]Gleditsch, Nils Petter (2012): Whither the weather? Climate change and conflict. In: Journal of Peace Research, Vol. 49(1), pp. 3-9. DOI: 10.1177/0022343311431288.
[iii]Ibid.
[iv]Brown, Oli (2008): Migration and Climate Change, p. 11. In: IOM Migration Research Series, Vol. 31. https://www.ipcc.ch/apps/njlite/srex/njlite_download.php?id=5866
[v]Bassetti, Francesco (2019): Environmental Migrants: Up to 1 Billion by 2050. https://www.climateforesight.eu/migrations-inequalities/environmental-migrants-up-to-1-billion-by-2050/
[vi]e.g., Steinbruner, John D. (2013): Climate and Social Stress – Implications for Security Analysis, p. 37. Washington: The National Academies Press.
[vii]Martin, Craig (2020): Atmospheric Intervention? The Climate Change Crisis and the Jus ad Bellum Regime, p. 334. In: Columbia Journal of Environmental Law, Vol. 45(S). DOI: 10.7916/cjel.v45iS.5786.
[viii]Corten, Olivier (2017): Necessity, p. 862. In: Marc Weller, The Oxford Handbook of The Use of Force in International Law, pp. 861-878. Oxford: Oxford University Press.
[ix]UNOCHA (2012): Foreign Military and Civil Defence Assets in Support of Humanitarian Emergency Operations: What is Last Resort?. http://www.unocha.org/sites/dms/Documents/Last%20Resort%20Pamphlet%20-%20FINAL%20April%202012_5.3.pdf
[x]Kinsella, David (2013): The Use of Force to Achieve Climate Change Goals, p. 18. http://web.pdx.edu/~kinsella/papers/isa13.pdf
[xi]Mirza, Muhammad Nasrullah (2019): Use of Force in Self-Defence for Global Peace: A Conceptual Framework, p. 21. In: Strategic Studies, Vol. 39(3), pp. 1-21. https://www.jstor.org/stable/10.2307/48544307
[xii] UN Charter (1945): United Nations Charter (full text), Art. 39. https://www.un.org/en/about-us/un-charter/full-text
[xiii]Ibid.
[xiv]Art. 41 of the UN Charter
[xv]Bourghelle, Valentine (2019): Climate change in the Security Council: On the road to qualifying climate change as ‘threat multiplier’. In: Völkerrechtsblog, 9 December 2019. DOI: 10.17176/20191209-180639-0.
[xvi]Dipalo, Sabina (2018): The Security Council’s Non-Determination of a Threat to the Peace as a Breach of International Law, p. 61. In: Pécs Journal of International and European Law. 2018/01, pp. 61-81. http://ceere.eu/pjiel/wpcontent/uploads/2018/08/63pjielPJIEL1801.pdf
[xvii]UNSC (1992): Note by the President of the Security Council: S/23500, p. 3. https://undocs.org/S/23500
[xviii]e.g., Scott, Shirley V. (2008): Climate Change and Peak Oil as Threats to International Peace and Security: Is It Time for the Security Council to Legislate?. In: Melbourne Journal of International Law. Vol. 9(2), pp. 495-515. https://law.unimelb.edu.au/__data/assets/pdf_file/0005/1683221/Scott.pdf
[xix]Toufanian, Melissa Turley (2020): Climate Change at the UN Security Council: Seeking Peace in a Warming World. https://unfoundation.org/blog/post/climate-change-a-un-security-council-seeking-peace-warming-world/
[xx]UNSC (2019): S/PV.8451. https://undocs.org/en/S/PV.8451
[xxi]Bourghelle, Valentine (2019): Climate change in the Security Council: On the road to qualifying climate change as ‘threat multiplier’. In: Völkerrechtsblog, 9 December 2019. DOI: 10.17176/20191209-180639-0.
[xxii]As the most prominent examples, neither the Kyoto Protocol nor the Paris Agreement could significantly change the progress of climate change.
[xxiii]Proper authority, just cause, right intention, proportionality, last resort.
[xxiv]Stanford Encyclopedia (2016): War, 2.5. https://plato.stanford.edu/entries/war/
[xxv]ICRC (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Art. 51(5b). https://ihl-databases.icrc.org/ihl/WebART/470-750065
[xxvi]Kunz, Josef L. (1947): Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations, p. 872. In: The American Journal of International Law. Vol. 41(4), pp. 872-879. https://doi.org/10.2307/2193095
[xxvii]Gray, Christine (2012): Climate Change and the Law on the Use of Force, p. 238. In: Rosemary Rayfuse, International Law in the Era of Climate Change, pp. 219-241. Cheltenham: Edward Elgar Publishing.
[xxviii]Nollkaemper, André (2017): Failures to Protect in International Law. In: Marc Weller, The Oxford Handbook of The Use of Force in International Law, pp. 437-461. Oxford: Oxford University Press.
[xxix]Glover, Nicholas (2011): A critique of the theory and practice of R2P.
