2020 Articles

Atmospheric Intervention? The Climate Change Crisis and the Jus ad Bellum Regime

Martin, Craig

An increasing number of governments are characterizing climate change as a threat to national security. More specifically, governments are identifying some of the consequences of climate change, such as damage to military and strategic infrastructure caused by extreme weather activity and rising sea level, as constituting direct threats to national security; and they are identifying as indirect threats other consequences of climate change, such as the increased interstate tension and armed conflict likely to result from the shifting availability of water and fertile land, increasing migration flows, and other major climatebased causes of socio-economic and political disruption. In addition, there is the growing awareness that under certain predictive models, based on current projections of greenhouse gas (“GHG”) emissions and consequent temperature rise, climate change may constitute a threat to our civilization, and over the longer term, even humanity itself. As a result, there have been some calls for the U.N. Security Council, the international institution with primary responsibility for addressing international peace and security, to take up climate change as an issue. But as dire as some of the climate change models are, most publics around the world have yet to comprehend the full magnitude of the looming crisis. Thus, even those governments that have expressed grave concern about the looming danger have had difficulty implementing costly mitigation policies. The nature of the threat posed by the crisis has not yet become politically salient, and the international law regimes related to international peace and security have not yet been implicated by calls for action on climate change.

In this article I suggest that this is likely to change, and possibly change quite radically, in the not too distant future. As the consequences of the climate change crisis begin to manifest themselves in ever worsening ways, the relationship between climate change and national security will become much more viscerally understood, not only by governments, but also by the general public in countries around the world. The ignorance, denial, and apathy that has characterized most public responses to climate change will be replaced by fear, a sense of crisis, and escalating demands that governments take urgent action. In the face of massive migration, pandemics, and increasing conflicts over the shifting availability of water and food, tribalism and nationalism will increase. We are already seeing early trends in this direction in response to immigration pressures.6 States will begin to see not only the consequences but also the causes of climate change as a national security threat. That is, they will begin to view those countries that are recklessly contributing to climate change, in flagrant violation of their international climate change law obligations—what we may for short call a “climate rogue state”—as also constituting a very specific threat to national security.

I suggest that as the consequences of the crisis intensify over the coming decades, there will be increasing arguments that the U.N. Security Council should formally declare the conduct of climate rogue states as comprising a threat to international peace and security under Article 39 of the U.N. Charter, and that the Security Council not only provide authorization for collective action such as increasingly punitive economic sanctions, but that it go so far as to authorize the threat or use of force under Article 42 of the Charter. If and when that fails, the pressure will mount for the legitimization of unilateral action against climate rogue states. A road-map for how such claims will likely develop is provided by the arguments advanced over the last two decades for adjusting the jus ad bellum regime to permit the use of force in response to purportedly new and novel threats, such as the development of weapons of mass destruction (“WMD”), the harboring of transnational terrorists, emerging cyber attack capability, and humanitarian crises. We can foresee a day when there will similarly be pressure on the jus ad bellum regime to adapt in ways that would permit collective action in the absence of U.N. Security Council authority—either through the expansion of the right of collective self-defense, or the creation of a new exception to permit collective but unilateral “atmospheric intervention.”