Responsibility to protect in environmental emergencies.

Author:Malone, Linda A.
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 9:00 a.m., Thursday, March 26, by its moderator, Gwen Young of the Bill & Melinda Gates Foundation, who introduced the panelists: Linda Malone of the College of William & Mary; Gareth Evans, President of the International Crisis Group; and Edward C. Luck, Senior Vice President of the International Peace Institute.

GREEN HELMETS: ECO-INTERVENTION IN THE TWENTY-FIRST CENTURY

UNILATERAL AND MULTILATERAL INTERVENTION

In terms of unilateral or multilateral use of force without United Nations authorization, the twentieth century law of ecological response is primarily law of ecological intervention, not ecological defense or disaster prevention. In Robyn Eckersley's 2008 article, "Ecological Intervention: Prospects and Limits," in Ethics and International Affairs, she posits three different categories of environmental harm: (1) major environmental emergencies with transboundary spillover effects that threaten public safety in the wider region; (2) ecocide or crimes against nature that also involve genocide or serious human rights violations (irrespective of spillover effects); and (3) ecocide or crimes against nature that are confined within the territory of the offending state and that involve no serious human rights violations. The core provision of the United Nations Charter with respect to the unilateral use of force outside the United Nations machinery is Article 51. The Charter's preservation of the right of self defense when there is an "armed attack against a state" is ill-suited to evaluation of forceful response to avert an environmental disaster. The legality of a forceful state response to environmental harm is more easily justified when the environmental harm is deliberately inflicted by a state against another state, or even by a group of nonstate actors, than when it is the result of dereliction of duty on the part of a state. Deliberate damage inflicted by one state or a group of nonstate actors on another state through pollution, hazardous substances, disease agents, or unleashing of natural resources (for example, destroying a dam) may be deemed an armed attack against the territorial integrity and political independence of a state, and such actions by state agents or nonstate actors may constitute genocide, war crimes, crimes against humanity, or ethnic cleansing, as discussed more fully below. If the transboundary environmental emergency is attributable to a state's failure to govern or regulate adequately its industry or resources, however, is there the necessary state responsibility to characterize the transboundary harm as an "armed attack" triggering a right of forceful self-defense? In an unusual twist, it may be easier to hold the nonstate actor "terrorists" liable for an armed attack for the unintended consequences of their criminal acts in such circumstances, under basic principles of accountability for the unintended but foreseeable consequences of intentional criminal behavior.

If the environmental damage inflicted is genocidal in design and intent, or can be characterized as any other serious human rights violation, the law of humanitarian intervention may be utilized to justify force regardless of any transboundary effects. Indeed, if the ecocide qualifies as genocide or a grave breach of the laws of war, other states would have an affirmative obligation to intervene to curtail the human fights violation. Of course, the ambiguity in the legal norm as to what extent or type of other human rights violations would trigger a right of humanitarian intervention is intensified when the state or nonstate actor perpetrator effectuates a human rights violation by inflicting damage on the environment rather than directly on the human population. As the natural disaster in Myanmar illustrates, even if late twentieth-century law had begun to recognize an obligation of assistance to states dealing with natural or, presumably, instigated natural disasters, a concomitant legal obligation to accept assistance had remained mired in traditional notions of state sovereignty. Even more problematic, but not relevant to the analysis at this point on when environmental damage qualifies as an "armed attack" or a human rights violation triggering "humanitarian" intervention, is that the twentieth century law of intervention fails entirely to address Eckersley's third scenario--when massive, severe destruction of an environment or a species, without clear and immediate harm to a human population, might trigger a right of forceful, ecological intervention.

All of the above three scenarios assume actual, immediate environmental harm. If the harm is potential harm, however likely or extensive, legality is dependent upon the highly suspect, and equally ill defined, norms of anticipatory self-defense, necessity, or self-help. At this juncture, the political realities of forceful intervention must also be acknowledged. On a descending scale of likelihood, anticipatory forceful intervention to prevent environmental damage which may result in transboundary harm is most likely against nonstate actors with a state's consent; against nonstate actors without a state's consent; against a deliberate state perpetrator; and extremely unlikely against a merely neglectful or incapable state regulator. The legal parameters of humanitarian intervention are not limited to actual harm and therefore can be inherently anticipatory, although the nonoccurrence of the human fights violations, however likely or serious, certainly militates against forceful intervention as a political matter. Once again, grave breaches and genocide carry their own relatively unique, affirmative responsibility of prevention as well as curtailment. Finally, forceful intervention to prevent potential massive environmental damage or destruction of a species, with no transboundary harm or serious human rights violations, however morally justifiable, has little or no legal predicate even under the most attenuated interpretations of self-help or necessity. The international law of force in the twentieth century is at its most dated state-centric, at its most progressive human-centric, and in no way eco-centric.

THE RESPONSIBILITY TO PROTECT

On September 16, 2005, the United Nations General Assembly adopted by consensus a resolution recognizing the responsibility to protect. (1) The core of the responsibility to protect (hereinafter "R2P") as adopted by both the United Nations General Assembly and Security Council was first embodied in Paragraph 138 of the 2005 World Summit Outcome Declaration:

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. (2) Paragraph 139 continues:

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, beating in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. (2) As an emerging cornerstone of international law for the twenty-first century, each and every term of these critical paragraphs merits careful scrutiny. As one of two fundamental formulations of the responsibility to protect, comparative evaluation of the contending formulations on a legal, political, and ethical level not only yields a better understanding of the ramifications of each formulation, but also a better sense of how the responsibility to protect may and should evolve. This comparison is only the first step in the inevitable determination of when the responsibility to protect triggers the use of military force, and it is the intermediate step in determining the central quest of formulating the parameters of eco-intervention for the twenty-first century.

The original, and broader, formulation of the responsibility to protect was included in the December 2001 report, "The Responsibility to Protect," from the International Commission on Intervention and State Sovereignty (ICISS). In response to the controversial basis for NATO's 1999 intervention in Kosovo, the government of Canada, with a group of major foundations, announced to the General Assembly in September 2000 the establishment of the ICISS to evaluate the legal, moral, operational, and political questions surrounding humanitarian intervention, to culminate in a report back to the Secretary-General with its conclusions. As discussed below, the genesis of the responsibility to protect in the context of humanitarian intervention is essential and cautionary to critiquing its incorporation into a norm for eco-intervention. It is also worth noting that the report was completed just weeks...

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