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.

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 rouge 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 acition 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.

In Part II of this essay, I will turn to 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.

Part II

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 the both the magnitude of the harm is massive and the probability of its manifestation is 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.