The Responsibility to Protect in Environmental Emergencies

Abstract

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 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 against a state is ill-suited to evaluation of forceful response to avert an environmental disaster. The legality of a forceful response to environmental harm is more easily justified when the environmental harm is deliberately inflicted by a 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 or a group of nonstate actors on another through pollution, hazardous substances, disease agents, or unleashing of natural resources (for example, destroying a dam) may be deemed an armed against the territorial integrity and political independence of a state, and such actions by 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 responsibility to characterize the transboundary harm as an 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 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 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 sovereignty. …