climate change

The Power of Rights-Based Climate Change Litigation

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My law review article exploring the influence and impact of rights-based climate change litigation has now been published in the Case Western Reserve Journal of International Law, and the full article can be downloaded from SSRN. The abstract is posted below:

An increasing number of legal challenges to government climate change policies are being advanced on the basis that states are violating the human rights or constitutional rights of applicants. A number of high-profile cases in Europe have upheld such claims and ordered governments to adjust their policies. But questions remain regarding how effective such rights-based cases may be in the effort to enforce climate change law obligations or encourage government responses to the crisis. This Article explores how such rights-based cases may exercise greater influence than is typically understood.

After explaining briefly the relevant human rights and climate change law, this Article examines in some detail a sample of rights-based climate cases that reflect a common pattern of features that provide the basis for such an explanation. The cases illustrate the incorporation of both international human rights law norms, and international climate change law obligations and standards, which are used to assess the legitimacy of government climate change policy. The courts increasingly rely upon the science of climate change institutions and the arguments and doctrines developed by foreign courts and international tribunals, including new doctrines for rejecting typical “drop in the ocean” causation and justiciability arguments traditionally relied upon to dismiss climate change cases.

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Geoengineering and the Use of Force

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(Published in Opinio Juris, Jan. 20, 2021).

It is now widely accepted that the climate change crisis is going to contribute to increasing levels of armed conflict among and within states in the coming decades. Less widely considered is the effect the crisis may have on the jus ad bellum regime. In a two-part essay in Opinio Juris (and in a much longer law review article), I have suggested that there will be growing pressure to relax the jus ad bellum regime when the more dire consequences of the climate change crisis begin to manifest themselves. That is, there will be mounting claims that the threat or use of force may be justified against those “climate rogue states” perceived to be recklessly and unlawfully contributing to the growing threat to international peace and security.

This argument may seem rather radical and unlikely from today’s perspective. But in this essay, I will examine how the case of geoengineering may help to illustrate just how some of the threats posed by climate change will create real tension for the jus ad bellum regime. The essay explores the hypothetical situation in which one country moves to unilaterally engage in a geoengineering scheme that many other states think will cause catastrophic harm to the climate and the ecosystem. How would the international community likely respond, and with what implications for international law?

Geoengineering

As most readers will know, the term geoengineering refers to large-scale intervention and manipulation of the environmental systems for purposes of either reducing the pace or countering the effects of climate change. There are many different avenues being explored, ranging from different methods of carbon dioxide removal (CDR), to various forms of solar management regulation (SRM). The latter is a broad category of methods that aim to lower or maintain the temperature of the Earth’s atmosphere by reducing the exposure of the Earth’s surface to the full brunt of energy from the sun.

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

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(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.

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Atmospheric Intervention?

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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.