It was a pleasure to be a guest on Asymmetrical Haircuts: The International Justice Podcast, to discuss the legal issues implicated by the Ukrainian incursion into the Kursk region of Russia in August of 2024, in the episode “Justice Update – Ukraine (Almost) Joins the ICC, and Invades Russia,” Sept. 6, 2024.
War & Strategy
Foreign Affairs Essay – The Battle Over Blocking the Sun
My colleague Scott Moore and I published an essay in Foreign Affairs that summarized some of the arguments that we make in our forthcoming law review article in the Harvard International Law Journal. The essay (with a title we did not love) is “The Battle Over Blocking the Sun: Why the World Needs Rules for Solar Geoengineering,” Foreign Affairs, Aug. 14, 2024. The argument is captured in the abstract to our much longer law review article, “Geoengineering Wars and Atmospheric Governance,” Harvard International Law Journal (forthcoming, 2025), which is here:
The increasingly harsh and unevenly distributed heat-related harms caused by climate change, together with the frustration over the collective inability to respond to the crisis, are likely to make unilateral geoengineering efforts increasingly attractive. Stratospheric aerosol injection (SAI) is a form of solar radiation modification that is effective, technically feasible, and within the financial means of many states and even non-state actors. Yet there are virtually no global governance structures in place to specifically regulate such activity, and existing international law would provide only weak constraints on unilateral SAI efforts. These features create incentives for unilateral action in what is known as “free driver” problem —few constraints on unilateral action that has low direct cost combined with immediate direct individual benefit and widely distributed risks and indirect costs.
There would be significant collateral environmental and climatic harms associated with SAI. That, coupled with the high risk of unilateral action, is reason enough for both caution and stronger governance. But another risk posed by any unilateral SAI effort—one that is underappreciated and under-theorized—is that of armed conflict. We explore how and why states would likely perceive the potential risks associated with unilateral SAI effort as constituting a threat to national security, and in the absence of adequate legal and institutional mechanisms to constrain such unilateral action, might well contemplate the use of force to defend against the perceived threat. The article explores and explains how and why the jus ad bellum regime is unlikely to prevent states from engaging in unauthorized use of force against unilateral SAI actors.
Canada’s ‘Royal Prerogative’ Allows it to Wage War Without Parliamentary Approval
(Published in The Conversation, Oct. 24, 2022).
Questions are being raised again about how the Canadian government makes decisions to use force or participate in armed conflicts, prompted by reports that special forces units of the Canadian Armed Forces were operating on the ground in Ukraine.
While ostensibly deployed strictly for “training purposes,” such involvement can lead to more direct engagement in an armed conflict.
The decision to engage in armed conflict is one of the most consequential decisions a government can make. Who is involved in the decision-making, and what conditions or principles govern that process? Even more importantly, how should these decisions be made?
As a recent report suggests, the Ukrainian deployment has rekindled interest in these questions on Parliament Hill. But there should be a broader public discussion and debate.
Most Canadians would be surprised to learn that the prime minister and the cabinet have a far more unfettered power under the so-called royal prerogative to take the country to war than most other western democracies.
Early limits on war-waging powers
The modern idea that the power of the executive branch to wage war should be limited can be traced back at least as far as the Glorious Revolution in 1688, when English parliament placed constraints on the king’s ability to raise and maintain an army.
Climate Change as a Security Issue at ABILA
It was a real pleasure to moderate and speak on a panel at the American Branch of the International Law Association (ABILA) in New York City in October, on the issue of how theclimate change crisis implicates various issues relating to international peace and security in international law. Joined by Mark Nevitt of Emory Law, Myram Jamshidi of the Univ. of Florida Law, and Jaya Ramji Nogales of Temple Univ. Law, it was such a rich discussion. My own presentation was based in large part on the short essay on this topic published a couple months earlier in AJILUnbound!