Climate Wars and Jus ad Bellum (Parts I & II)

(Published in Opinio Juris in two parts, Aug. 13, 2020).

Part I

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.

Read moreClimate Wars and Jus ad Bellum (Parts I & II)

New Podcast on the Laws of War

In mid-July I launched a new podcast series called “JIB/JAB – The Laws of War.” It will feature conversations with experts in the various legal regimes that govern aspects of the use of force and armed conflict — namely, the jus ad bellum, jus in bello, international human rights law, constitutional war powers, and some others in the margins — focusing on both their recent work, and how it may relate to recent events. I am hoping to strike a delicate balance wherein it will be of interest and value to both experts and non-experts (including students) alike. For more information and to peruse the episodes already up, check out the website at http://jibjabpodcast.com — or subscribe on most podcast platforms.

Atmospheric Intervention?

cjelMy latest law review article has just been published: “Atmospheric Intervention? The Climate Change Crisis and the Jus ad Bellum Regime,” 45 Columbia Journal of Environmental Law 331 (2020). Here is the abstract:

Many governments have begun to understand that the consequences of climate change will increasingly create both direct and indirect threats to national security. Under some projected scenarios these consequences may pose an existential threat to human civilization. Yet there has been little attention to how this will implicate the jus ad bellum regime. As the climate change crisis becomes more severe, states will begin to view not just the consequences but some of the causes of climate change as comprising a threat to national security. Specifically, they will begin to characterize other states’ recklessly excessive and flagrantly unlawful contributions to climate change as a threat to international peace and security. The international climate change regime will be sufficiently developed to help frame such characterizations, but incapable of enforcing or mobilizing compliance with its obligations.

States will thus look to the collective security regime to coerce such “climate rogue states” to comply with their climate change law obligations. The identification of climate rogue states as posing a threat to international peace and security will trigger the basis for collective action, up to and including the threat or use of force. In the face of UN Security Council inaction, there will be increasing pressure on the jus ad bellum regime to adjust so as to permit and justify such action. Recent efforts to relax the constraints of the jus ad bellum regime, in response to other purportedly novel threats — such as nuclear proliferation, transnational terrorism, cyber-attacks, and humanitarian crises — provide templates for the kind of arguments we may anticipate for justifying action against “climate rogue states.” We will see efforts to expand the doctrine of self-defense, or to establishing new exceptions to permit “atmospheric interventions.”

The logic of these arguments for adjusting the jus ad bellum regime are more powerful than recent efforts, because the threat they seek to address will increasingly appear to outweigh the resulting increased risk of armed conflict. They will likely gain traction as the crisis deepens. This requires us now, before fear drives the agenda, to begin a discussion of how such adjustment might best be shaped, limited, or resisted. As compelling as they will become, the arguments are dangerous. They will not only weaken the jus ad bellum regime but are likely to compound some of the injustices of the climate change crisis and undermine the international rule of law in ways that will be counterproductive to our efforts to respond to the crisis.

Challenging and Refining the “Unwilling or Unable” Doctrine

VJTLMy latest law review article has just been published: “Challenging and Refining the ‘Unwilling or Unable’ Doctrine,” 52 Vanderbilt Journal of Transnational Law 245 (2019). The abstract is as follows:

This Article challenges and proposes refinements to the “unwilling or unable” doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime.

This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the “ability” or “unwillingness” of the territorial state. The principles lump all these determinations together, and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war.

The Article takes seriously the operational imperatives in dealing with the threat posed by terrorist organizations, but proposes refinements to the principles to address each of these problems, so as to achieve greater consistency with established principles of the jus ad bellum regime. It develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.