Responsibility to Protect (R2P) Revisited: Towards Climate Change-Related Obligations of States? 3830550316, 9783830550310

Table of contents :
Acknowledgements
Abstract
Table of contents
List of Abbreviations and Acronyms
List of Tables
List of Figures
A. Introduction
B. Human rights dimension of climate change
C. The responsibility to protect
D. The impacts of climate change as potential crimes under R2P
E. Extension of the R2P
F. General Conclusion and Outlook
Appendix
References
Lebenslauf

Citation preview

BOCHUMER SCHRIF TEN

zur FRIEDENSSICHERUNG und zum HUMANITÄREN VÖLKERRECHT

Franziska-Carolin Kring ━

Responsibility to protect (R2P) revisited Towards climate change-related obligations of states?

Responsibility to protect (R2P) revisited

━

BOCHUMER SCHRIF TEN zur FRIEDENSSICHERUNG und zum HUMANITÄREN VÖLKERRECHT Herausgegeben von Hans-Joachim Heintze Pierre Thielbörger Begründet von Prof. Dr. Horst Fischer Prof. Dr. Dr. h.c. mult. Knut Ipsen Prof. Dr. Joachim Wolf

Franziska-Carolin Kring ━

Responsibility to protect (R2P) revisited Towards climate change-related obligations of states?

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtes ist unzulässig und strafbar.

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Acknowledgements At first, writing a PhD thesis seems like an endless journey, and sometimes, this is exactly how it feels. But now, sitting here and writing my foreword, I know that every single step, every fit of rage, every anger, was worth it. In these final days of finishing my thesis, I thought a lot about the amazing people that accompanied me in this long process of researching, drafting, correcting, writing, and ameliorating. My thanks go to everyone who supported me in these four intensive years, who gave me useful tips, and who told me not to give up. I would like first to say a very big thank you to my supervisor Pierre Thielbörger for his support, his ideas, and his help. I also owe special thanks to my amazing colleagues, who have not only been colleagues, but true friends. Robin, Tobi, Katrin and Laura, thank you for your help, for reading the sixth version of my articles, and for always making the workplace a fun place to be. I gratefully acknowledge the funding received towards my PhD from RUB Research School Plus and the Friedrich Ebert Foundation. I also want to thank my ‘inner circle’ who accompanied me since the first semesters, who often took me out of myself, who had time for a glass of wine, and endless talks. I also owe special thanks to Lena and Marlene, who had the patience to read several parts of my thesis and provided me with useful tips. My final words go to my incredible family, without whom I would have never been able to write a dissertation. Mum, Dad and Vivien, thank you for always lending an ear, giving me advice, and just being there. And finally, I want to thank Francesco, who has been by my side throughout my first state examination and this PhD.

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Abstract Climate change constitutes the greatest environmental threat humanity has ever faced and will exert measurable impacts on different scales. Many changes in the world’s climate have already been observed, including sea level rise, glacier retreat, increases in global temperature, and more severe extreme weather events. Over time, climate change will manifest itself in myriad ways, such as negatively affecting human health and exacerbating existing inequalities. Unfortunately, the international community appears incapable of effectively confronting climate change. Therefore, new and innovative approaches are required to cope with this global challenge. The focus of this dissertation is to analyse whether the concept of responsibility to protect (R2P) can be applied to the impacts of climate change. Initially developed to respond to gross human rights abuses within states, the concept gained currency in the first decade of the new millennium. Based on the understanding of sovereignty-as-responsibility, R2P places the responsibility to provide for the security and well-being of citizens on individual states. The residual responsibility of the international community is only activated if states are not able to offer adequate protection to their populations. In this dissertation, two separate approaches are employed to analyse the application of R2P to the issue of climate change: subsumption and extension. Firstly, the dissertation examines whether states that contribute to climate change can be held responsible for one of the crimes under R2P, namely genocide, war crimes, ethnic cleansing, and crimes against humanity. The applicability of the first three crimes can be quickly rejected. The thesis then posits that the emitters of greenhouse gases cannot be tried for crimes against humanity because by affecting only a random assortment of victims, the civilian population does not constitute the ‘primary object’ of their attack. However, using the 2008 cyclone Nargis in Myanmar as a case study, the thesis asserts that states that fail to protect their populations from humanitarian catastrophes linked to climate change might be tried for crimes against humanity. The second section of the thesis is devoted to analysing a potential extension of R2P to the impacts of climate change. The dissertation presents two different scenarios to assess the potential duties of states: extreme humanitarian catastrophes linked to climate change and a general obligation of states to mitigate climate change. It establishes a framework for R2P and its three components, ‘prevent, react, rebuild’ that is applicable to climate change. This analysis reveals that reactions to humanitarian catastrophes linked to climate change perfectly accords with the R2P framework. It also appraises the advantages and disadvantages of construing R2P as an instrument to effectively combat climate change. According to the author, R2P is the most promising approach that currently exists which can guarantee adequate protection to people suffering from humanitarian catastrophes linked to climate change. Such a responsibility can be based on the

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Abstract 

core foundations of R2P: the obligations inherent in the concept of state sovereignty; the responsibility of the Security Council under Article 24 of the UN Charter; and international human rights law, humanitarian law, and national law. On the contrary, a general obligation of the international community to mitigate climate change cannot be derived from the concept of R2P.

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Table of contents Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 List of Abbreviations and Acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 List of Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 List of Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 I. Introductory remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 II. Climate change and displacement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1. Observed effects and drivers of climate change . . . . . . . . . . . . . . . . . . . . . . . . 21 2. Future impacts of climate change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 3. Adaptation and mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 III. Political and legal responses to climate change . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 1. United Nations Framework Convention on Climate Change . . . . . . . . . . . 29 2. Kyoto Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 3. 2015 Paris Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4. Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 IV. Research objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 1. The gap in legal literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 2. Research question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 3. Analytical framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 B. Human rights dimension of climate change . . . . . . . . . . . . . . . . . . . . . 39 I. Climate change effects as human rights violations? . . . . . . . . . . . . . . . . . . . . . . . 39 1. Individual human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 2. Collective human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 3. Human rights violations in a strict legal sense? . . . . . . . . . . . . . . . . . . . . . . . . 45 II. States’ human rights obligations regarding climate change . . . . . . . . . . . . . . . . . . 47 1. Potential scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 a) Extreme humanitarian catastrophes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 aa) States’ obligations towards their own population . . . . . . . . . . . . . . . 49 bb) States’ obligations towards populations of other states . . . . . . . . . . 52 (1) Potential obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 (2) Legal bases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

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Table of contents 

(a) Extraterritorial extension of environmental human rights jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . 53 (b) Obligations under the international duty of cooperation 56 (c) Obligations under international refugee law . . . . . . . . . . . 57 b) Mitigation of climate change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 aa) States’ obligations towards their own populations . . . . . . . . . . . . . . 59 bb) States’ obligations towards populations of other states . . . . . . . . . . 62 (1) Potential obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 (2) Legal bases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 cc) Erga omnes obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 2. Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 C. The responsibility to protect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 I. History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 1. International Commission on Intervention and State Sovereignty . . . . . . 72 2. High-Level Panel on Threats, Challenges, and Change . . . . . . . . . . . . . . . . . 79 3. World Summit Outcome document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 4. Annual reports of the Secretary-General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 5. Security Council resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 a) Resolution 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 b) Resolution 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 6. Responsibility to protect after Libya and Syria: sudden death? . . . . . . . . . 89 II. Theoretical foundations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 1. Obligations inherent in the concept of state sovereignty . . . . . . . . . . . . . . . 95 2. Responsibility of the Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 3. International human rights law, humanitarian law, and national laws . . . . 99 4. Developing practice of states, regional organisations, and the Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 III. Legal status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 1. Legal status of the entire concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 a) Customary international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 aa) General Assembly and Security Council . . . . . . . . . . . . . . . . . . . . . . . 104 bb) Other international institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 cc) Proponents of the responsibility to protect . . . . . . . . . . . . . . . . . . . . . 107 (1) European states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 (a) United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 (b) France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

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(c) Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 (d) Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 (2) African states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 (3) The Americas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 (a) Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 (b) Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 (c) United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 (d) Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 dd) Opponents of the responsibility to protect . . . . . . . . . . . . . . . . . . . . . 128 (1) Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 (2) China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 (3) Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 b) Emerging norm of international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 c) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 2. Legal status of the primary responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 3. Legal status of the secondary responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 D. The impacts of climate change as potential crimes under R2P 139 I. Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 II. Ethnic cleansing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 III. War crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 IV. Crimes against humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 1. Tolerable amount of greenhouse gas emissions . . . . . . . . . . . . . . . . . . . . . . . . 144 a) Punishable act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 aa) Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 bb) Extermination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 cc) Deportation or forcible transfer of populations . . . . . . . . . . . . . . . . . 147 dd) Other inhumane acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 (1) Inhumane act of a similar character . . . . . . . . . . . . . . . . . . . . . . . . 149 (a) Inhumane act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 (b) Of a similar character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 (c) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 (2) Intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 (3) Awareness of the factual circumstances establishing the similar character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 b) Widespread or systematic attack against any civilian population . . . . . 155 aa) Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

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bb) Widespread or systematic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 cc) Directed against any civilian population . . . . . . . . . . . . . . . . . . . . . . . 157 dd) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 c) Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 2. States failing to protect their populations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 a) Cyclone Nargis and the responsibility to protect . . . . . . . . . . . . . . . . . . . . 160 aa) Punishable act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 (1) Myanmar’s blockade of aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 (a) Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 (b) Extermination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 (c) Inhumane act of a similar character . . . . . . . . . . . . . . . . . . . . 164 (2) Embezzlement of aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 (3) Forcible transfer of people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 (4) Failure to warn the population . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 (5) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 bb) Committed as part of an attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 cc) Widespread or systematic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 dd) Directed against any civilian population . . . . . . . . . . . . . . . . . . . . . . . 170 ee) Knowledge of the attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 ff) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 b) Responsibility to protect people from climate change . . . . . . . . . . . . . . . 171 V. Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 E. Extension of the R2P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 I. Scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 1. Extreme humanitarian catastrophes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 a) Type and scale of human suffering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 b) Actors involved and their potential responsibilities . . . . . . . . . . . . . . . . . 178 aa) Affected states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 (1) Responsibility to prevent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 (2) Responsibility to react . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 (3) Responsibility to rebuild . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 bb) International community and the United Nations . . . . . . . . . . . . . . 185 (1) Responsibility to prevent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 (2) Responsibility to react . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 (3) Responsibility to rebuild . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 cc) Non-governmental organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 (1) Responsibility to prevent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

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(2) Responsibility to react . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 (3) Responsibility to rebuild . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 c) Potential consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 d) Potential legal bases for external intervention . . . . . . . . . . . . . . . . . . . . . . 195 aa) UN Security Council resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 bb) Self-defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 cc) Draft Articles on the Protection of Persons in the Event of Disasters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 dd) Customary international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 e) Suitability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 f) Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 2. Mitigation of climate change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 a) Type and scale of human suffering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 b) Actors involved and their potential responsibilities . . . . . . . . . . . . . . . . . 203 aa) Individual states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 bb) International community and United Nations . . . . . . . . . . . . . . . . . . 205 cc) Individuals and companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 dd) Non-governmental organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 c) Potential consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 d) Potential legal bases for external intervention . . . . . . . . . . . . . . . . . . . . . . 209 aa) UN Security Council resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 bb) Self-defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 e) Suitability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 f) Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 3. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 II. Theoretical foundations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 1. Extreme humanitarian catastrophes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 a) Obligations inherent in the concept of sovereignty . . . . . . . . . . . . . . . . . . 213 aa) Responsibility of affected states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 bb) Responsibility of the international community . . . . . . . . . . . . . . . . . 214 b) Responsibility of the Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 c) International human rights law, humanitarian law, and national law . . 220 aa) Responsibility of affected states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 bb) Responsibility of the international community . . . . . . . . . . . . . . . . . 220 d) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 2. Mitigation of climate change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 a) Obligations inherent in the concept of sovereignty . . . . . . . . . . . . . . . . . . 222 aa) Responsibility of individual states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 bb) Responsibility of the international community . . . . . . . . . . . . . . . . . 222

13

Table of contents 

b) Responsibility of the Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 c) International human rights law, humanitarian law, and national law . . 226 aa) Responsibility of individual states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 bb) Responsibility of the international community . . . . . . . . . . . . . . . . . 227 d) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 3. Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 III. Guidelines for the application of an extended R2P . . . . . . . . . . . . . . . . . . . . . . . 229 1. Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 2. Addressees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 3. Components . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 4. Application in practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 IV. Challenges and opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 1. First challenge: harm to doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 2. Second challenge: risk of abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 3. Third challenge: infeasibility for disaster relief . . . . . . . . . . . . . . . . . . . . . . . . . 238 4. Fourth challenge: absence of political support . . . . . . . . . . . . . . . . . . . . . . . . 239 5. Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 F. General Conclusion and Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Lebenslauf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

14

List of Abbreviations and Acronyms ACORD ADRDM AU BRICS CCA CCM CDM CEDAW CESCR CO2 COP CPPCG CPRR CRC CRPD CSPR DRM DRR EU ECHR ECtHR ECOWAS GHG GtCO2-eq IACHR IACtHR ICCPR ICERD ICESCR ICISS ICJ ICRC ICTY

Agency for Cooperation and Research in Development American Declaration of the Rights and Duties of Man African Union Brazil, Russia, India, China, and South Africa Climate Change Adaptation Climate Change Mitigation Clean Development Mechanism Convention on the Elimination of all Forms of Discrimination against Women Committee on Economic, Social and Cultural Rights Carbon dioxide Conference of the Parties Convention on the Prevention and Punishment of the Crime of Genocide Community Peace Recovery and Reconciliation Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities Community Social Peace and Recovery Disaster Risk Management Disaster Risk Reduction European Union European Convention for the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights Economic Community of West African States Greenhouse gas Gigatons of carbon dioxide equivalent Inter-American Commission on Human Rights Inter-American Court of Human Rights International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Commission on Intervention and State Sovereignty International Court of Justice International Committee of the Red Cross International Tribunal for the Former Yugoslavia

15

List of Abbreviations and Acronyms 

IDL IDRL IFRC IHL ILC IPCC IRL IS JI MPEPIL NATO NDC NGO NIAC OAU OCHA OHCHR OECD P5 PCF POC PSNP R2P RCP RFC RMI RP RwP SIDS UDHR UK UN UNDP UNESCO UNFCCC UNHCR UNHRC UNTS US VCLT

16

International Disaster Law International Disaster Response Law International Federation of Red Cross and Red Crescent Societies International Humanitarian Law International Law Commission Intergovernmental Panel on Climate Change International Refugee Law Islamic State Joint Implementation Max Planck Encyclopedia of Public International Law North Atlantic Treaty Organisation Nationally Determined Contribution Non-Governmental Organisation Non-International Armed Conflict Organisation of African Unity United Nations Office for the Coordination of Humanitarian Affairs Office of the United Nations High Commissioner for Human Rights Organisation for Economic Co-operation and Development Five permanent members of the Security Council Product Carbon Footprint Protection of Civilians Productive Safety Net Program Responsibility to Protect Representative Concentration Pathway Reason for Concern Republic of the Marshall Islands Responsible Protection Responsibility while Protecting Small Island Development State Universal Declaration of Human Rights United Kingdom United Nations United Nations Development Programme United Nations Educational, Scientific and Cultural Organisation United Nations Framework Convention on Climate Change United Nations High Commissioner for Refugees United Nations Human Rights Council United Nations Treaty Series United States of America Vienna Convention on the Law of Treaties

List of Tables 

List of Tables Table 1: Results of the 2006 Canadian federal election . . . . . . . . . . . . . . . . . . . . . . . . 255 Table 2: Results of the 2008 Canadian federal election . . . . . . . . . . . . . . . . . . . . . . . . 255 Table 3: Results of the 2011 Canadian federal election . . . . . . . . . . . . . . . . . . . . . . . . 256

List of Figures Figure 1: Number of deaths estimated from a combined climate-carbon crisis

256

17

A. Introduction I.

Introductory remarks

‘If climate change makes our country uninhabitable, we will march with our wet feet into your living rooms-Atiq Rahman.’1 As early as 1995, Atiq Rahman, a Bangladeshi dignitary, warned of the impending danger of climate-induced migration at the first United Nations (UN) Climate Change Conference in Berlin.2 As the latest report of the Intergovernmental Panel on Climate Change (IPCC) indicates, global warming is likely to lead to increased displacement of human populations from their homes.3 In June 2014, New Zealand granted asylum to a family from the Polynesian island nation of Tuvalu.4 Claiming to be threatened by climate change, Sigeo Alasana and his family left the island in 2007 for New Zealand. After nearly five years of legal struggle, the New Zealand Immigration and Protection Tribunal finally granted residency to the family. Although the applicants did not receive refugee status under the 1951 Refugee Convention,5 the tribunal did consider the humanitarian impacts of climate change in its verdict. This judgement can be seen as a landmark decision because it emphasises that the effects of global warming on human populations could play a major role in the future of immigration legal processes. It also reveals further threats to people around the world exist, although natural catastrophes and climate change do not dominate the public discourse in the way that terrorism or armed conflict do.

1 2 3

4 5

Atiq Rahman, Speech at the First UN Climate Change Conference (28 March – 7 April 1995), quoted in Tom Athanasiou and Paul Baer, Dead Heat: Global Justice and Climate Change, New York (SSP 2002), 23. Parts of this chapter have been published in Franziska Kring, ‘Responsibility to Protect Revisited – A Promising Approach to Tackle Climate Change?’ in Vasilka Sancin (ed), Are we “manifestly failing” R2P? (University of Ljubljana 2017), 261–276. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (The Core Writing Team, Rajendra Kumar Pachauri, and Leo Meyer, CUP 2014), 40, 73. Compare also Angela Williams, ‘Turning the Tide: Recognizing Climate Change Refugees in International Law’ (2008) 30(4) Law and Policy 502. Rick Noack, ‘Has the Era of the ‘Climate Change Refugee’ Begun?’ Washington Post (7 August 2014) accessed 1 December 2019. International Convention Relating to the Status of Refugees’ (28 July 1951), 189 UNTS 150.

19

A. Introduction

Climate change is an undeniable reality.6 It does not only have direct effects on the global ecosystem but is also known to increase the likelihood of armed conflict. The so-called neo-Malthusian hypothesis states that environmental scarcity increases the frequency and severity of mass atrocities.7 Growing populations in developing countries and relative affluence in developed countries leads to rising pressure on natural resources such as land and water, thereby increasing the likelihood of distributional conflicts.8 However, because legitimate legal and political institutions are responsible for resolving these conflicts in developed countries, they rarely lead to violence.9 Developing countries often lack these institutions, which leads people to try to resolve problems themselves.10 Against the background of future climate change, the number and severity of environmental conflicts in developing countries will inevitably increase as food systems and rural livelihoods are further strained.11 The high dependence on agriculture and limited adaptation possibilities make the world’s least developed and poorest countries particularly susceptible to climate change. In light of these facts, the international community’s12 inertia to effectively combat climate change calls for reforms of the security system as well as new and innovative 6

The Intergovernmental Panel on Climate Change (IPCC) recently stated that global warming is ‘unequivocal’. See Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 40. 7 Cullen Hendrix, ‘Putting Environmental Stress (Back) on the Mass Atrocities Agenda’ [2016] The Stanley Foundation Policy Analysis Brief 1, 5; Simon Adams, ‘From Global Warming to Genocide Warning: Climate Change and Mass Atrocities’ (28 November 2016) accessed 1 December 2019. 8 Hendrix (n. 7), 6. 9 ibid. 10 ibid. 11 Tim Wheeler and Joachim von Braun, ‘Climate Change Impacts on Global Food Security’ [2013] Science 508. 12 This notion of ‘International community’ is rather vague and requires clarification. Compare Santiago Villalpando, L’émergence de la Communauté Internationale dans la Responsabilité des États (Presses Universitaires de France 2005), 10–15; Raphaël van Steenberghe, ‘Non-State Actors’ in Gentian Zyberi and Kevin T Mason (eds), An Institutional Approach to the Responsibility to Protect (CUP 2013), 48. Even in international law, the term lacks a precise definition; it is unclear whether the notion of ‘international community’ is limited to states, or whether other subjects of international law, such as NGOs, might also be included. Compare, in the sense of the first interpretation, Vienna Convention on the Law of Treaties (23 May 1969), UN Doc. A/CONF.39/27, 1155 UNTS 331, Article 53, referring to ‘(…) the international community of states as a whole’. On the other hand, in Article 25 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, the ILC does not limit the ‘international community’ to states. See Report of the International Law Commission on the Work of its Fifty-Third Session (23 April – 1 June and 2 July 2001), UN Doc. A/56/10, Commentary to Article 25, para. 18: ‘As a matter of terminology, it is sufficient to use the phrase “international community as a whole” rather than “international community of states as a whole”, which is used in the specific context of Article 53 of the Vienna Convention on the Law of Treaties.’ Compare also van Steen-

20

II.  Climate change and displacement

approaches to manage this global problem. Public awareness of the threats posed by climate change should be increased to perceive the problem as a real and present danger rather than a distant threat. Therefore, this dissertation analyses whether the concept of Responsibility to Protect (R2P), initially developed in 2001 by the International Commission of Intervention and State Sovereignty (ICISS),13 may be interpreted as encompassing an obligation of states to fight against climate change and to assist states affected by climate change-related natural disasters14.

II.

Climate change and displacement

Climate change15 constitutes one of the greatest emerging humanitarian challenges of the 21st century and affects every state in the world.

1.

Observed effects and drivers of climate change

‘(…) [W]hat the people of Nunavik describe isn’t just climate change. Change can be adapted to, accommodated. What they describe is climatic disruption.’16 As this description of life for the native Inuit peoples living in the Artic regions indicates, the world’s climate is undoubtedly and irreversibly changing.17 With high confidence, the IPCC concluded that the period between 1983 and 2012 was very likely

13 14

15

16 17

berghe (n. 12), 48. In the R2P framework developed in this dissertation, the notion of ‘international community’ solely encompasses states because responsibilities of NGOs and other subjects are dealt with separately. International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (December 2001) accessed 1 December 2019. Similar to the desk study on international disaster response law published by the International Federation of Red Cross and Red Crescent Societies (IFRC), this thesis employs a broad classification/ definition of disaster, encompassing operations in both sudden-onset events (such as earthquakes, typhoons, fires, and volatile diseases) and slow-onset events (such as droughts, creeping floods, and slow-spreading disease), as well as natural and man-made disasters. Compare International Federation of Red Cross and Red Crescent Societies, ‘Law and Legal Issues in International Disaster Response: a Desk Study’ (2007) accessed 1 December 2019, 23. According to Article 1(2) of the United Nations Framework Convention on Climate Change (UNFCCC), climate change is defined as ‘a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.’ See United Nations Framework Convention on Climate Change (9 May 1992), 1771 UNTS 107. Clare Kendall, ‘Life on the Edge of a Warming World’ The Ecologist (1 June 2006) accessed 1 December 2019. Committee on Ecological Impacts of Climate Change, National Research Council, Ecological Impacts of Climate Change (The National Academies Press 2008), 1.

21

A. Introduction

the warmest 30-year period of the last 800 years in the northern hemisphere.18 There is also high confidence that glaciers have continued to shrink and have thus contributed to rising sea levels in the 20th century.19 Since 1950, the occurrence of extreme cold temperatures has declined, whereas extreme warm periods have become more frequent and more severe.20 Furthermore, a trend of increased frequency of heavy precipitation events has been observed in a number of regions.21 Forced displacement is one of the most visible impacts of climate change. Droughts, floods, rising sea levels, cyclones, and other extreme weather events caused by climate change are forcing people to flee their homes.22 The UN High Commissioner for Refugees (UNHCR) estimated in 2016 that in each year since 2008, an annual average of 21.5 million people have been forcibly displaced due to natural phenomena.23 The chief cause of climate change is the emission of GHGs that deplete the ozone layer.24 Concentrations of carbon dioxide, methane, and nitrous oxide in the atmosphere are the highest they have been in the past 800,000 years.25 About 78 % of the increase in atmospheric carbon dioxide (CO2) concentration between 1970 and 2010 is linked to anthropogenic causes, such as fossil fuel combustion and industrial processes,26 which indicates that global warming since the mid-20th century has predominantly resulted 18

19 20 21 22 23 24 25 26

22

The IPCC uses the following terms to describe the available evidence: limited, medium, or robust; and for the degree of agreement: low, medium, or high. A level of confidence is expressed using five qualifiers: very low, low, medium, high, and very high, and typeset in italics, e. g., medium confidence. In its reports, the IPCC uses the following terms to indicate the assessed likelihood of an outcome or a result: virtually certain (99–100 % probability), very likely (90–100 %), likely (66–100 %), about as likely as not (33–66 %), unlikely (0–33 %), very unlikely (0–10 %), and exceptionally unlikely (0– 1 %). Additional terms (extremely likely: 95–100 %, more likely than not: > 50–100 %, and extremely unlikely: 0–5 %) have also been used when appropriate. See Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 40. ibid., 42. Gerald A Meehl and others, ‘Trends in Extreme Weather and Climate Events: Issues Related to Modeling Extremes in Projections of Future Climate Change’ (2000) 81(3) BAMS 427, 434. Committee on Ecological Impacts of Climate Change, National Research Council (n. 17), 1. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 51–53. UN High Commissioner for Refugees, ‘Frequently Asked Questions on Climate Change and Disaster Displacement’ (6 November 2016) accessed 1 December 2019. Thomas J Crowley, ‘Causes of Climate Change Over the Past 1000 Years’ (2000) 289(5477) Science 270, 276. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 44. ibid., 46.

II.  Climate change and displacement

from human activities.27 Notably, population growth and the expansion of industrialised economic activities have increased the consumption of fossil fuels.28 Although increasingly more countries are working on climate change mitigation (CCM) policies, annual GHG emissions grew on average by 1.0 gigatons of carbon dioxide equivalent [GtCO2-eq (2.2 %)] per year between 2000 and 2010, relative to 0.4 GtCO2-eq (1.3 %) per year between 1970 and 2000. Respective data demonstrates that developed countries are predominantly responsible for this increase.29 To prevent severe and irreversible repercussions of climate change on people and ecosystems, a substantial and sustained reduction in GHG emissions is required.30

2.

Future impacts of climate change

Climate change may affect people on all continents in numerous ways and exerts a measurable impact on different scales.31 It will both aggravate existing risks and cause new risks for natural and human systems.32 Although many lines of scientific evidence conclude that the Earth’s climate is unequivocally warming,33 scientific facts on climate change are far from uncontested. There is still a general lack of knowledge about the 27 28 29

30

31

32 33

Committee on Ecological Impacts of Climate Change, National Research Council (n. 17), 1. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 46. The United States (27 %), the European Union (25 %) and the Russian Federation (8 %) are responsible for 60 % of global GHG emissions between 1850 and 2011. See Mengpin Ge, Johannes Friedrich and Thomas Damassa, ‘6 Graphs Explain the World’s Top 10 Emitters’ (25 November 2014) accessed 1 December 2019. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 56. H. Damon Matthews and Ken Caldeira even go so far as to say that the humaninduced net addition of CO2 to the atmosphere must be decreased to nearly zero in order to achieve atmospheric carbon dioxide levels that lead to climate stabilisation. Compare H. Damon Matthews and Ken Caldeira, ‘Stabilizing Climate Requires Near-Zero Emissions’ (2008) 35(4) Geophysical Research Letters 1. In order to assess the future risks and impacts of climate change, the IPCC uses ‘Representative Concentration Pathways’ (RCPs) that describe four different 21st century pathways of GHG emissions and atmospheric concentrations, air pollutant emissions and land use. The RCPs encompass a stringent mitigation scenario (RCP2.6), two intermediate scenarios (RCP4.5 and RCP6.0), and one scenario with very high GHG emissions (RCP8.5). Scenarios without additional efforts to limit emissions (‘baseline scenarios’) lead to pathways ranging between RCP6.0 and RCP8.5. RCP2.6 represents a scenario aiming to keep global warming likely below 2 °C above pre-industrial temperatures. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 64. The IPCC recently stated that global warming is ‘unequivocal’. See ibid., 40.

23

A. Introduction

issue that will not disappear in the near future.34 Therefore, the following section is devoted to briefly summarising several projections of future climate change. According to the IPCC, there is robust evidence and high agreement among climate scientists that ‘climate change will reduce renewable surface water and groundwater resources in most dry subtropical regions’ over the 21st century.35 With very high confidence, the IPCC projects that coastal systems and low-lying areas will suffer from submergence, coastal flooding, and coastal erosion as a result of rising sea levels.36 There is also high confidence that climate change will negatively impact all four elements of food security: food production,37 access, use, and price stability. Production of wheat, rice, and maize in tropical and temperate regions will be negatively affected by climate change unless the increase in local temperatures is held below 2 °C above late 20th century levels. By slowing down economic growth, hampering poverty reduction, and reinforcing and exacerbating poverty, climate change may also stress the world’s economic and social systems.38 Increased poverty, water scarcity, and economic shocks will, with a medium level of confidence, lead to a greater risk of armed conflict.39 Furthermore, because of

34 35 36

37 38

39

24

Jonathan Verschuuren, ‘Introduction’ in Jonathan Verschuuren (ed), Research Handbook on Climate Change Adaptation Law (EEP 2013), 10. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 69. Intergovernmental Panel on Climate Change (ed), Summary for Policymakers. Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Christopher B. Field, Vicente R. Barros, David J. Dokken, Katharine J. Mach, Michael D. Mastrandrea, T. Eren Bilir, Monalisa Chatterjee, Kristie L. Ebi, Yuka Otsuki Estrada, Robert C. Genova, Betelhem Girma, Eric S. Kissel, Andrew N. Levy, Sandy MacCracken, and Mastrandrea, Patricia R. and White, Leslie L. CUP 2014), 17. Compare Cynthia Rosenzweig and others, ‘Climate Change and Extreme Weather Events – Implications for Food Production, Plant Diseases and Pests’ [2001] NASA Publications, accessed 1 December 2019, 102. Intergovernmental Panel on Climate Change (ed), Summary for Policymakers. Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 36), 20; Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (CUP 2004), 22. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 73.

II.  Climate change and displacement

rising sea levels, desertification, and dwindling freshwater resources, up to 50 million people are estimated to be forced to flee their homes by 2020.40 Human health will also be threatened by a changing climate. Until the middle of the century, climate change is, with very high confidence, expected to intensify existing health problems.41 With a high level of confidence, the IPCC states that climate-related illnesses in many regions will increase throughout the 21st century.42 More severe heat waves and fires will pose significant risks to human health and security. Particularly in poor countries, reduced food production can cause hunger and malnutrition. The rise in temperatures could produce higher risks posed by vector-borne diseases like malaria and dengue fever, including the extension of their geographical ranges.43 The impacts of climate change on human health are not well-quantified relative to other climate-related effects. Nevertheless, global warming has, with medium confidence, caused an increase in heat-related mortality in some regions of the world.44 Scientists forecast that the impacts of climate change will last for centuries, even if atmospheric CO2 levels are stabilised.45 The IPCC determined with near certainty that the world face more frequent heat and fewer extreme cold temperatures over most land areas.46 Global sea levels are expected to rise unabated and by much greater increases when compared to temperature.47 The impacts of climate change will be unevenly distributed across the world. Populations in developing countries are much more vulnerable than people in industrialised

David Adam, ‘50 m Environmental Refugees by End of Decade, UN Warns’ The Guardian (12 October 2005) accessed 1 December 2019. 41 Intergovernmental Panel on Climate Change (ed), Summary for Policymakers. Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 36), 19. 42 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 69. 43 Yamin and Depledge (n. 38), 22. 44 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 51. 45 Matthews and Caldeira (n. 30), 1. 46 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 60. 47 Gerald A Meehl and others, ‘How Much More Global Warming and Sea Level Rise?’ (2005) 307(5716) Science 1769, 1772. 40

25

A. Introduction

states.48 In this regard, global warming further aggravates existing inequalities between groups of people and between regions.49 In sum, climate change is very likely to exert ‘severe, pervasive, and irreversible’50 impacts on people and ecosystems across the world and may cause permanent changes to all components of the climate system.51 To avoid its worst effects, substantial climate change adaptation (CCA) and mitigation strategies are required.

3.

Adaptation and mitigation

Two separate but related52 approaches can be identified to respond to the threats posed by climate change: adaptation and mitigation.53 Although CCA has been an important policy option during the first global discussions on climate change in the 1980 s, the vast majority of all climate change initiatives of the past two decades have dealt with CCM.54 Mitigation aims to limit future climate change by lowering emissions and increasing GHG sinks.55 These cuts in emissions may be achieved through various technological, behavioural, and policy changes.56 Reducing the atmospheric concentrations of CO2 and other GHGs to zero requires full decarbonisation of the energy sector.57 Carbonneutral energy could be produced through the use of renewable sources such as wind, solar, and hydropower.58 To keep global warming below 2 °C relative to pre-industrial levels, an increase of 300–400 % in the share of the zero- and low-carbon energy supply

48 49 50 51 52 53 54 55 56 57 58

26

M. M Q Mirza, ‘Climate Change and Extreme Weather Events: Can Developing Countries Adapt?’ (2003) 3(3) Climate Policy 233, 234. ibid., 233 et seq. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 56. ibid., 77. Verschuuren (n. 34), 8. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 76. Roger Pielke and others, ‘Climate Change 2007: Lifting the Taboo on Adaptation’ (2007) 445(7128) Nature 597. Yamin and Depledge (n. 38), 76. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 81. ibid., 99. Marianne Fay and others, Decarbonizing Development: Three Steps to a Zero-Carbon Future (World Bank 2015), 29 f.

II.  Climate change and displacement

from renewable sources is required by the year 2050.59 Demand-side management is essential for mitigating the adverse effects of climate change. More efficient energy use in households, the use of public transportation, and food waste reduction may also have positive effects in this regard.60 Because some amount of climate change is now unavoidable, adaptation measures have been placed again on the agenda in the last few years.61 Adaptation intends to reduce society’s vulnerability to the adverse effects of global warming.62 Similar to the regional vulnerability to climate change, adaptive capacities are not evenly distributed geographically. Developing countries will suffer the most from climate change and will experience its effects far earlier than developed countries.63 This is particularly because they generally lack the effective financial, technological, and institutional means of averting the most dangerous effects of climate change.64 Thus, developed nations must support less developed countries in their attempts to enhance their adaptive capacities. This can, inter alia, be achieved through human development, poverty reduction, and reforms in disaster risk and ecosystem management.65 Potential measures may include easier access to education and improvements in basic public health, the establishment of early warning systems, flood and cyclone shelters, and enhanced drainage, financial inducements, the establishment of disaster contingency funds, laws which support disaster risk reduction (DRR), and other national policies and programs.66 Despite the challenges of comparing the costs and benefits of investments in DRR with the costs of disasters,67 several studies have determined that the benefits of investment Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 82. 60 ibid. 61 Pielke and others (n. 54), 597. 62 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 96. 63 Mirza (n. 48), 233. 64 Daniel H Cole, ‘Climate Change, Adaptation, and Development’ (2007) 26 UCLA Journal of Environmental Law and Policy 1, 5. 65 IPCC Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 96. 66 ibid. 67 These obstacles are particularly linked to a lack of reliable data, and specific circumstances in each individual case. See Francis Vorhies, ‘The Economics of Investing in Disaster Risk Reduction: Working Paper Based on a Review of the Current Literature Commissioned by the Secretariat to the UN International Strategy for Disaster Reduction (UNISDR) Geneva’ (31 December 2012) accessed 1 December 2019, 19. 59

27

A. Introduction

in disaster prevention and preparedness measures far outweigh the potential costs associated with recovering from disasters.68 In terms of the healthcare sector, a recent report released by the NGO ‘Health Care Without Harm’ clearly indicates that effective risk management and investments in climate change-resilient health care facilities pay off in less than two years due to the facilities’ ability to stay operational during extreme weather events.69 Disaster preparedness enables states to act early when droughts or flooding occur, thereby paying 40 % less than normal disaster relief efforts.70 Furthermore, investing now in climate resilience can help to reduce people’s willingness to flee to other states because their homes would then be more resilient to the impacts of climate change. Both CCA and CCM measures are essential parts of the international climate agenda and can be ‘mutually reinforcing’.71 Examples of measures entailing mutual benefits for people and the environment include energy efficiency upgrades that promote both mitigation (by reducing energy demand) and adaptation (by compensating stress on electrical infrastructure caused by projected warming)72 and water recycling that leads to decreases in energy demand while adapting to projected water scarcity.73 Thus, CCA and CCM should be considered as parts of a single strategy which contributes to sustainable development and successfully addressing the challenges posed by climate change.74 As most GHGs accumulate and mix uniformly throughout the atmosphere, and nations emitting GHGs are affected by the emissions of other nations, climate change emerges as a collective problem on a global scale.75 Therefore, a global response based on international cooperation is necessary. 68 See, inter alia, Thomas Tanner and others, ‘Why All Development Finance Should Be Risk-Informed’ ( July 2015) accessed 1 December 2019, 1; Annaka Peterson, ‘Four Arguments for Climate Finance’ (2 August 2017) accessed 1 December 2019; Health Care Without Harm, ‘Safe Haven in the Storm: Protecting Lives and Margins with Climate-Smart Health Care’ ( January 2018) accessed 1 December 2019. 69 ibid., 18–19. 70 Peterson (n. 68). 71 Rowena Maguire, ‘Foundations of International Climate Law: Objectives, Principles and Methods’ in Erkki J Hollo, Kati Kulovesi and Michael Mehling (eds), Climate Change and the Law (Springer 2013), 84. 72 Edna Sussman, ‘Climate Change Adaptation: Fostering Progress through Law and Regulation’ (2010) 18(55) NYUELJ 55, 57. 73 ibid. 74 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 94. 75 ibid., 76.

28

III.  Political and legal responses to climate change

III.

Political and legal responses to climate change

The international community has devoted a number of international conferences to the challenges posed by climate change. Recent climate negotiations have fostered highly divisive debates because states could not agree on binding commitments to cut their emissions. Therefore, international climate talks often resulted in vague agreements that represent the ‘lowest common denominator’ states pledged to adhere to.76 The most important international climate agreements are the United Nations Framework Convention on Climate Change (UNFCCC) and its additional Kyoto Protocol, as well as the 2015 Paris Agreement.

1.

United Nations Framework Convention on Climate Change

The UNFCCC, signed by more than 150 states at the 1992 UN Conference on Environment and Development in Rio de Janeiro (the first ‘Earth Summit’), was the first important milestone in the global battle against climate change. It was enacted on March 21st, 1994. Because 196 states and one regional organisation, the European Union (EU) are parties to the UNFCCC,77 the convention enjoys nearly universal membership and thereby constitutes the ‘main multilateral forum focused on climate change’.78 According to its Article 2, the main objective of the convention is to stabilise the atmospheric concentrations of GHGs at levels which ‘prevent dangerous anthropogenic interference with the climate system’. In pursuing this goal, the UNFCCC does not impose substantive emissions reduction targets on states, but rather establishes a general framework for international action on climate change. Therefore, the UNFCCC is referred to as the ‘constitution for the emerging international climate change regime’.79 Recognising the difficulties states experience in adopting global environmental treaties, this incremental practice is widely used in international politics. States first establish a general convention that covers the institutional and procedural framework, and then endeavour to build consensus amongst themselves before adopting additional protocols with substantive obligations.80 76 77 78 79 80

Anilla Cherian, Energy and Global Climate Change: Bridging the Sustainable Development Divide (Wiley 2015), 28. See UNFCCC, ‘Status of Ratification of the Convention’ accessed 1 December 2019. Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 102. Daniel M Bodansky, ‘The Emerging Climate Change Regime’ (1995) 20 Annu Rev Energy Env 425, 426. ibid., 430.

29

A. Introduction

Article 3 of the UNFCCC enumerates its guiding principles that reflect more general principles of international law.81 According to Article 3(1), the convention is based on the principles of equity and common but differentiated responsibilities. The latter concept was brought to life through the Rio Declaration on Environment and Development.82 Acknowledging the historical responsibility of developed countries for climate change, common but differentiated responsibilities imposes the main duty to take action on the global north.83 Article 3(5) emphasises the need for cooperation to successfully address climate change.84 The principle of cooperation, incorporated into international environmental law through the principle of ‘good-neighbourliness’ enshrined in Article 74 of the UN Charter,85 is an important principle of international law. It is reflected in many sections of the UNFCCC, emphasising its crucial importance in confronting climate change.86 These principles are not solely applicable to the UNFCCC, but also to the Kyoto Protocol and all other instruments of the international climate regime that were established to achieve the objective of the convention.87 They establish the ‘general framework for the global climate change regime’ and serve as a starting point for future discussions and negotiations.88 The UNFCCC does not include any clauses referring to people displaced or otherwise affected by climate change, reflecting that the parties to the convention did not recognise the impending danger of climate-induced forced displacement at the time of its drafting. In sum, the UNFCCC constitutes a ‘framework instrument’ which establishes a ‘longterm, evolutionary process to address the climate change problem’.89 Considering the general character of its obligations, the UNFCCC necessitates substantive commitments on the part of the state parties.

81

Especially the principle of equity, the principle of common but differentiated responsibilities and the precautionary principle are important principles of international environmental law. Compare ibid., 435. 82 Rio Declaration on Environment and Development (14 June 1992), UN Doc. A/CONF.151/26 (vol. I), 31 ILM 874, Principle 7. 83 Kati Kulovesi and María Gutiérrez, ‘Climate Change Negotiations Update: Process and Prospects for a Copenhagen Agreed Outcome in December 2009’ (2009) 18(3) RECIEL 229, 236. 84 Compare also UN Environment Programme (n. 81), Principle 27. 85 Charter of the United Nations, 1 UNTS XVI (1945). 86 See, inter alia, paragraph 6 of the preamble to the UNFCCC: ‘Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response […]’. Compare Maguire (n. 71), 95. 87 ibid., 91. 88 Bodansky, ‘The Emerging Climate Change Regime’ (n. 79), 435. 89 ibid., 429.

30

III.  Political and legal responses to climate change

2.

Kyoto Protocol

The Kyoto Protocol constitutes the first step towards implementing the UNFCCC through the establishment of legally binding emissions reduction targets on industrialised countries listed in the UNFCCC’s Annex I. Similar to the UNFCCC, the Kyoto Protocol does not refer to climate-induced forced displacement. The protocol was adopted in Kyoto, Japan, on December 11th, 1997, but did not take effect until 2005 due to the strict requirements of Article 25(1) of the protocol. This provision delayed the entry into force of the protocol until its ratification by at least 55 of the UN member states which together were responsible for at least 55 % of total GHG emissions in 1990. The Russian Federation ratified the protocol in November 2004, finally allowing Kyoto to take effect. Similar to the UNFCCC, the Kyoto Protocol is based on the principle of common but differentiated responsibilities but is burdened by the fact that only developed countries have reduction targets under the protocol. However, this burden-sharing agreement was a noteworthy achievement which clears the way for the creation of individual state commitments in international environmental cooperation.90 Article 3(1) of the Kyoto Protocol defines the first commitment period as 2008–2012, in which industrialised countries are required to reduce their emissions by at least 5 % below 1990 levels. The emissions targets for each Annex I country are listed in Annex B of the Protocol. Differences in the parties’ individual reduction targets once again reveal the principle of common but differentiated responsibilities. At the 18th Conference of the Parties to the UNFCCC (COP) in December 2012, Annex I states parties agreed to further commitments in a second commitment period between January 2013 and December 2020. Some industrialised nations have raised serious concerns with regard to the Kyoto Protocol’s effectiveness.91 On the one hand, they claim that it is impossible to eliminate the threat posed by global warming by only reducing industrialised countries’ emissions.92 On the other hand, they fear economic losses compared to developing countries that are not subject to similar reductions.93 These claims cannot be offhandedly dismissed, particularly considering that four of the 10 largest CO2 emitters in 2016 in absolute terms have been developing countries.94 At the time of the Rio Conference in 1992, at 90

Tuula Honkonen, ‘The Principle of Common but Differentiated Responsibility in Post-2012 Climate Negotiations’ (2009) 18(3) RECIEL 257, 259. 91 Clare Breidenich and others, ‘The Kyoto Protocol to the United Nations Framework Convention on Climate Change’ (1998) 92(2) AJIL 315, 326. 92 ibid. 93 ibid. 94 These four states include China (28.21 % of total emissions), India (6.24 %), Iran (1.72 %) and Saudi Arabia (1.56 %). Thus, they are responsible for 37.73 % of global emissions. See Statista, ‘Largest Producers of CO2 Emissions Worldwide in 2016, Based on their Share of Global CO2 Emissions’ (2017)

31

A. Introduction

least two developing countries were among the countries with the highest emissions.95 Therefore, when drafting the Kyoto Protocol, states were already aware that its focus on developed countries would limit its effectiveness. Developing countries then argued that an important part of their population is still in poverty, and that they are only important emitters in absolute terms.96 Developing countries’ emissions are significantly lower in terms of emissions per capita (per person). Although this claim holds true, it must be noted that emission targets chiefly aim to protect and preserve life on earth rather than at punishing individual states. Therefore, it makes no difference whether the per capita emissions are higher or lower than absolute emissions because only the total GHG emissions are ultimately relevant. However, it must be recognised that developed countries will have to invest more to reach a carbon-neutral state future, but given their financial capabilities, commitments under the Kyoto Protocol are a burden they need to carry. The Kyoto Protocol also provides for an enforcement mechanism to address cases of non-compliance by a member state. The Compliance Committee is composed of the facilitative branch which assists states in their efforts to comply with the protocol97 and the enforcement branch to impose consequences on states found to be in violation of their obligations under the protocol.98 For every tonne that states emitted over the set targets, the assigned emissions of the subsequent compliance period will be lowered by 1.3 tonnes.99 For several reasons, this mechanism lacks efficiency. First of all, states can generally move from one commitment period to the next one without ever meeting its reduction targets because these targets are just subsequently lowered. Furthermore, states themselves negotiate their assigned emissions so that they can determine higher targets for the next period. It must also be noted that some countries withdrew from the protocol entirely (for example Canada) or from the second commitment period (for example Russia). Therefore, new regulations and mechanisms are required in to ensure compliance with the provisions of the protocol.

95 96 97 98 99

32

accessed 1 December 2019. These countries were China and India. See The Guardian, ‘World Carbon Emissions: the League Table of Every Country’ (21 June 2012) accessed 1 December 2019. Compare Celine Germon Duret, ‘Paris Agreement: Success or Failure, and What Next?’ (24 August 2017) accessed 1 December 2019. Yamin and Depledge (n. 38), 392. UNFCCC, Conference of the Parties, ‘Report of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol on its first Session, held at Montreal from November 28 to December 10, 2005, Addendum’ (30 March 2006), UN Doc. FCCC/KP/CMP/2005/8/Add.3. Yamin and Depledge (n. 38), 394; Meinhard Doelle, ‘Compliance and Enforcement in the Climate Change Regime’ in Erkki J Hollo, Kati Kulovesi and Michael Mehling (eds), Climate Change and the Law (Springer 2013), 168.

III.  Political and legal responses to climate change

3.

2015 Paris Agreement

At the 2015 UN Climate Change Conference, held in Paris from November 30th to December 11th, 2015, 195 countries adopted the first universal, legally-binding global climate treaty that took effect on November 4th, 2016.100 Industrialised states and developing countries agreed to keep global average temperature increase to well below 2 °C above pre-industrial levels, and accepted the ambitious aim to limit the increase to 1.5 °C.101 To achieve this goal, global concentrations of CO2 must reach their peak as soon as possible, and states are required to reduce their emissions thereafter in accordance with the best available science.102 Derived from the principle of common but differentiated responsibilities, developed nations should, under Article 4, take the lead in combatting climate change, whereas developing countries are only required to gradually reduce emissions. Nevertheless, each state party is obliged to develop long-term GHG emission reduction strategies. The agreement further provides for cooperative mechanisms on CCM and CCA (Articles 6 and 7), financial assistance to developing countries (Article 9), a framework for fostering technological development [Article 10(4)], as well as compliance assurance mechanisms (Article 15). State parties are further required to submit regular reports on their annual emissions, progress made in achieving their reduction targets, as well climate change impacts and adaptations under Articles 13(7) and (8). A reference to climate migration can only be found in the preamble of the agreement, which highlights that states recognised the danger of migration or forced displacement caused by climate change but did not agree on substantive commitments in this regard. Although small island developing states (SIDS) that are particularly vulnerable and are referred to several times, cases of people being displaced due to the risk of submergence of their home islands is not adequately addressed. As a matter of fact, adaptation and mitigation strategies also contribute to fostering resilience against climate change. However, if an entire island state is under threat of disappearing, the international community must think of supporting relocation measures in those states. All in all, the Paris Agreement may only be claimed as a success in some regards. It is surely a diplomatic success, given that representatives of 196 UNFCCC parties agreed on measures to cut their GHG emissions. Furthermore, its language is unambiguous and clear, referring to ‘the least developed countries’ and ‘Small Island developing states’ 100 UNFCCC, Conference of the Parties, ‘Adoption of Paris Agreement’ (12 December 2015), UN Doc. FCCC/CP/2015/L.9, Annex. 101 Oliver Milman, ‘Planet has just 5 % Chance of Reaching Paris Climate Goal, Study Says’ The Guardian (31 July 2017) accessed 1 December 2019. 102 UNFCCC, Conference of the Parties, ‘Adoption of Paris Agreement’ (n. 100), Article 4(1).

33

A. Introduction

that are ‘particularly vulnerable to the adverse effects of climate change’.103 However, the agreement falls short of proposing concrete measures that states must undertake, apart from reducing their GHG emissions. Rather, states are rather free to promote their own adaptation and mitigation policies.

4. Remarks This chapter has demonstrated that there have been several attempts to address the threat of climate change both politically and legally. However, it is also clear that each approach has its own advantages, disadvantages, and shortcomings. Firstly, the UNFCCC and its additional Kyoto Protocol were intended to oblige states to reduce their CO2 emissions and thereby limit global temperature rise to 2 °C above pre-industrial levels. Because developing states refused to accept legally binding reduction targets, the Kyoto Protocol only nominally calls for industrialised countries to cut their emissions. The Kyoto Protocol also lacks efficiency since four of the ten largest CO2 emitters are developing countries. To make matters worse, since the two largest producers of CO2, namely the United States (US) and China, either have not ratified the protocol (the US) or are not considered to be an Annex I country (China), even full implementation of the Kyoto Protocol without additional measures would contribute little to the overall reduction of atmospheric CO2 after a few decades. The 2015 Paris Agreement is surely a diplomatic and political success. It addresses developed and developing countries and determines the goal of limiting global temperature increase to well below 2 °C above pre-industrial levels. However, it does not enumerate concrete steps to be taken by states to achieve this goal. Action on climate change does not only entail mitigating and adapting to its impacts, but it should rather encompass a responsibility of states to assist states affected by disasters linked to climate change. Furthermore, it does not impose sanctions on states that leave the agreement. Even before reaching the six-month mark of his presidency, US President Donald Trump announced that the US would withdraw from the agreement.104 This does not only limit the agreement’s effectiveness, given that the second largest GHG emitter no longer agrees to cut its emissions. It also sends a counterproductive message to other states about neglecting the necessity to engage in action against climate change. However, at the time of writing, the US has been the only state to leave the agreement, so President Trump did not cause a wave of withdrawals. Nevertheless, refusing to take part in the global battle against climate change should be sanctioned. 103 ibid., Article 9(4). 104 Michael D Shear, ‘Trump Will Withdraw U. S. From Paris Climate Agreement’ New York Times (1 June 2017) accessed 1 December 2019.

34

IV.  Research objective

In sum, states should thoroughly consider new global solutions for effectively fighting against climate change. If the international community acts sufficiently early, some of the most horrendous consequences of climate change could be prevented.

IV.

Research objective

It has become apparent that climate change constitutes a global challenge that needs to be addressed by all states. Therefore, this dissertation intends to present an entirely new and innovative approach to confronting the threats posed by climate change, particularly in terms of natural disasters: The Responsibility to Protect (R2P). R2P was initially developed to address the international community’s responsibility to protect civilians in the context of humanitarian emergencies and the sovereignty of states.105 The UN General Assembly in 2005 then limited R2P’s scope to genocide, war crimes, ethnic cleansing, and crimes against humanity.106 So far, the application of R2P to the issue of climate change has not been subject to an exhaustive and coherent analysis, and that is exactly what this PhD thesis is meant to provide.

1.

The gap in legal literature

The legal challenges posed by climate change and the application of R2P to natural disasters have already been analysed in some legal scholarship. However, I argue that the existing approaches are incomplete and a substantial analysis of R2P’s applicability would enhance political and legal debate on climate change. Although climate change has partly been claimed to be a security issue,107 international legal literature lacks a detailed analysis of potential steps in which the international community can overcome this global challenge. The threats posed by climate change are inadequately recognised and existing approaches lack the necessary implementation and enforcement at the regional and the global levels. The existing literature has hastily denied R2P’s applicability to crises other than genocide, war crimes, ethnic cleansing, and crimes against humanity without closer examination. Extending the scope of R2P to include natural disasters has already been dis105 International Commission on Intervention and State Sovereignty (n. 13), para. 1.7; Hans-Georg Dederer, ‘‘Responsibility to Protect’ and ‘Functional Sovereignty’’ in Peter Hilpold (ed), The Responsibility to Protect (R2P) – A new Paradigm of International Law? (Koninklijke Brill NV 2015), 158. 106 ‘2005 World Summit Outcome’ (24 October 2005), UN Doc. A/RES/60/1, para. 4.19. 107 For example, the UN Human Rights Council (UNHRC) stated in 2008 that ‘climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights’. Speaking at a Security Council debate on the security implications of climate change, former Secretary-General Ban Ki-moon also considered climate change a threat to international peace and security, See Human Rights and Climate Change (28 March 2008), UN Doc. A/HRC/RES/7/23, preamble.

35

A. Introduction

cussed in relation to the 2008 cyclone in Myanmar.108 In this context, most states denied R2P’s applicability. However, as this introductory chapter has explicated, the negative impacts of climate change, particularly extreme weather events, are becoming more frequent and more severe and the international community is in urgent need of new conceptual approaches to cope with this global challenge. The historic Paris Agreement has demonstrated that most states are now ready to engage more in international action against climate change. Therefore, it is time to rethink existing concepts and to analyse their applicability to the issue of climate change, to guarantee effective protection of people and the planet. Previous debates on the extension of R2P to natural disasters have too often reduced the concept to a pretext for humanitarian intervention; indeed, it does not appear feasible to protect people affected by natural disasters by military intervention.109 However, this dissertation reveals that R2P could entail a vast range of measures falling short of the use of force. The theoretical foundations of R2P, most importantly the understanding of sovereignty-as-responsibility, the responsibility of the Security Council under Article 24 of the UN Charter for the maintenance of international peace and security, and specific legal obligations under international human rights law, international humanitarian law (IHL), and national law,110 might also be interpreted as encompassing a responsibility of states to help states affected by humanitarian catastrophes linked to climate change. Therefore, this dissertation provides a substantive analysis on the application of R2P to climate change and will therefore substantially add to existing debates on global warming and on the future of the R2P concept.

2.

Research question

The overall subject of this thesis is to examine whether and how the concept of R2P could be effectively applied to the impacts of climate change. To answer this question, a number of subsidiary questions need to be addressed: 1. What are the advantages and disadvantages of existing approaches to confronting climate change? 2. Do the impacts of climate change qualify as crimes under R2P?

108 See below, section D. IV. 2. a), p. 160–170. 109 Compare Ramesh Thakur, ‘Should the UN Invoke the ‘Responsibility to Protect’?’ The Globe and Mail (8 May 2008, updated 27 April 2018) accessed 1 December 2019. 110 International Commission on Intervention and State Sovereignty (n. 13), Synopsis, XI.

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IV.  Research objective

3. If not, can R2P be extended to climate change? a) In situations of extreme humanitarian catastrophes linked to climate change? b) As a general call for states to mitigate climate change? 3. What are the theoretical foundations of an extended R2P? 4. What are potential guidelines for the application of an extended R2P? 5. What are the challenges and opportunities of this approach? After exploring these aspects, the dissertation develops an innovative framework for R2P-based action on climate change. The holistic concept of R2P and its components ‘prevent, react, rebuild’ constitute a suitable means to include the responsibilities of the international community with regard to climate change.

3.

Analytical framework

This multidisciplinary thesis combines legal, philosophical, and ecological perspectives to answer the research questions outlined above. To analyse whether R2P may be determined to be an effective response to the challenges posed by climate change, understanding the basic science and strategies on climate change is indispensable. Therefore, this introductory chapter has outlined the observed effects and future impacts of climate change, as well as potential adaptation and mitigation strategies. The next section then elucidated the already existing political and legal responses to climate change, most importantly the UNFCCC and its additional Kyoto Protocol, and the 2015 Paris Agreement. Chapter B concerns the human rights dimension of climate change and analyses ­whether the effects of climate change constitute violations of human rights. Furthermore, the chapter aims to determine whether states are obligated under human rights law to take measures against anthropogenic climate change. The chapter also refers to International Refugee Law (IRL) as a potential basis for climate change-related obligations of states. When analysing potential climate change-related obligations of states arising from human rights law or R2P, this dissertation distinguishes between two different scenarios: humanitarian catastrophes linked to climate change, and a general obligation of states to take long-term mitigation action; this is elaborated upon in further chapters. Chapter C then introduces the concept of R2P, its history, theoretical foundations, and its legal status. R2P is applicable to the most horrendous violations of human rights. During the 2005 World Summit, the High-Level Plenary Meeting of the 60th session of the UN General Assembly, states affirmed that the scope of R2P encompasses genocide, war crimes, ethnic cleansing, and crimes against humanity.

37

A. Introduction

Therefore, an initial analysis in chapter D explored whether the impacts of climate change could amount to one of these crimes. In this regard, there are two potential reasons for the evocation of R2P: states that emit GHGs or fail to adopt CCA or CCM policies, and states that fail to protect their populations from natural disasters linked to climate change. Given that it is problematic to identify a particular natural phenomenon as a direct consequence of climate change, it is difficult to advance the argument that serious crimes are being committed. The final chapter E examines a potential extension of R2P to the devastating effects of climate change on human beings. This chapter analyses the two scenarios outlined above (humanitarian catastrophes linked to climate change, and a general obligation of states to engage in CCM) and outlines the factual and legal consequences arising from such applications. The suitability of applying R2P to these scenarios is then assessed based on three criteria: the type and scale of human suffering, relevant actors and their responsibilities, and the legal bases for external intervention. This last category is necessary, because I argue that R2P itself does not serve as legal basis for external intervention. The second part of this chapter is devoted to outlining potential theoretical foundations of R2P when applied to the impacts of climate change. In this regard, several approaches are evaluated: the notion of sovereignty-as-responsibility, the duty of the UN Security Council (UNSC) for the maintenance of international peace and security, special legal obligations required by human rights, IHL, and national law, and the developing practice of states, regional organisations, and the Security Council (the core foundations of R2P enumerated by the ICISS). The analysis of challenges that arise with such an extension forms the final part of this section.

38

B.

Human rights dimension of climate change

Having analysed the basic science and existing political and legal responses to climate change, the following section shifts to the human rights dimension of climate change. It primarily addresses the question of whether the effects of anthropogenic climate change violate international human rights law, and whether the latter provides an adequate legal framework which obligates states to offer protection to people suffering from the threats posed by climate change.

I.

Climate change effects as human rights violations?

In 1948, the Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly.111 However, because General Assembly resolutions are not legally binding on member states,112 an international system of legally binding human rights protection had not been established until 1966 with the advent of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESCR). These documents constitute binding provisions between all signatory parties.113 A human rights-based approach to climate change can be traced to earlier discussions on the connection between human rights and the environment,114 culminating in efforts to recognise a human right to a healthy environment.115 More recently, an international 111 Universal Declaration of Human Rights (10 December 1948), UN Doc. A/RES/217 (III). 112 Volker Epping, ‘§ 6. Internationale Organisationen’ in Knut Ipsen (ed), Völkerrecht (6th edn. C. H. Beck 2014), para. 142; Stefan Talmon, ‘The Legalizing and Legitimizing Function of UN General Assembly Resolutions’ (18 July 2014) accessed 1 December 2019; Andreas von Arnauld, Völkerrecht (3rd edn, C. F. Müller 2016), para. 276; Malcolm N Shaw, International Law (8th edn, CUP 2017), 85. 113 As of 1 December 2019, 170 states are party to the ICESCR, and 174 to the ICCPR. See UN Treaty Collection, ‘3. International Covenant on Economic, Social and Cultural Rights’ accessed 1 December 2019; UN Treaty Collection, ‘4. International Covenant on Civil and Political Rights’ accessed 1 December 2019. 114 As early as in 1972 at the UN Conference on the Human Environment in Stockholm, States already discussed on the link between human rights and the environment. See Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) (15 December 1972), UN Doc. A/RES/2994. 115 Compare, inter alia, Lynn Berat, ‘Defending the Right to a Healthy Environment: Toward a Crime of Geocide in International Law’ (1993) 11(2) BUInt’lLJ 327; Sueli Giorgetta, ‘The Right to a Healthy Environment, Human Rights and Sustainable Development’ (2002) 2(2) International Environmental Agreements: Politics, Law and Economics 171. However, as of December 2019, a global right to a healthy environment has not yet been recognised.

39

B.  Human rights dimension of climate change

debate has developed on how the effects of climate change directly influence people’s exercising of human rights. Public interest in this debate was raised in 2005 when Sheila Watt-Cloutier, the elected chair of the Inuit Circumpolar Conference, submitted a petition to the Inter-American Commission on Human Rights (IACHR) which blames the US for violating the Inuit people’s human rights by contributing to global warming through its GHG emissions.116 The petition claims the violation of several human rights guaranteed under the American Declaration of the Rights and Duties of Man (ADRDM),117 and all major international human rights instruments.118 These human rights include the right to life, liberty and security (Article I ADRDM) endangered by extreme weather events and changes in ice and snow,119 the right to the preservation of health (Article XI ADRDM) threatened by disappearing sea-ice, the appearance of new diseases and the decrease of water quality and availability,120 as well as the right to residence and movement and inviolability of the home (Articles VIII, IX ADRDM) imperilled by coastal erosion and melting permafrost that damages Inuit homes and community structures.121 Although the petition was rejected by the IACHR,122 it succeeded in raising awareness of the severe effects of climate change on the Inuit.123 In 2007, the government of the Maldives published its ‘Male’ Declaration on the Human Dimension of Global Climate Change’.124 This requested, inter alia, the Office of the UN High Commissioner for Human Rights (OHCHR) to conduct an analytical study on the 116 The petition is supported by testimony from 63 named Inuit from northern Canada and Alaska. See Sheila Watt-Cloutier, ‘Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming caused by Acts and Omissions of the United States’ (7 December 2005) accessed 1 December 2019. 117 American Declaration of the Rights and Duties of Man (2 May 1948), OEA/Ser.L.V/II.82 doc.6 rev.1. 118 Universal Declaration of Human Rights (n. 111); European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (4 November 1950), UNTS 213, 222; International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171; American Convention on Human Rights, “Pact of San Jose”, Costa Rica 22 November 1969; African Charter on Human and Peoples’ Rights (27 June 1981), OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982). 119 Watt-Cloutier (n. 116), 90. 120 ibid., 87. 121 ibid., 95. 122 Ariel E Dulitzky, ‘Letter from Ariel E. Dulitzky, Assistant Executive Secretary, Inter-American Commission on Human Rights, to Paul Crowley, Legal Representative of the Petitioners’ (16 November 2006) accessed 1 December 2019. 123 John H Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 HarvEnvtlLRev 477, 482. 124 Government of the Maldives, ‘Male’ Declaration on the Human Dimension of Global Climate Change’ (14 November 2007) accessed 1 December 2019.

40

I.  Climate change effects as human rights violations?

effects of climate change on human rights and the UN Human Rights Council (UNHRC) to launch a debate devoted to this issue in March 2009.125 In 2008, the UNHRC clearly stated that ‘climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights’,126 but did not substantially elaborate on human rights that might be violated. The first substantive analysis of the relationship between climate change and human rights by an international human rights body was provided by the OHCHR in 2009.127 Based on the scientific findings of the IPCC’s 4th Assessment Report, the OHCHR examined the effects that climate change might have on the realisation of human rights.128 The adverse effects of global warming, particularly the rise in global temperature, the shrinking of glaciers, the sea level rise, and the increased frequency and intensity of extreme weather events such as cyclones, floods, droughts and heatwaves129 clearly jeopardise a broad range of human rights.130 The OHCHR identified six rights that relate most directly to the climate change effects determined by the IPCC, namely the right to life, the right to adequate food, the right to water, the right to health, the right to adequate housing as well as the right to self-determination.131 In this regard, the dissertation distinguishes between the bearers of these human rights, namely individual and collective human rights.

1.

Individual human rights

The right to life, often referred to as the ‘supreme right’ that does not allow any exceptions ‘even in time of public emergency’,132 is explicitly guaranteed under the ICCPR and the Convention on the Rights of the Child (CRC).133 The right to life could be 125 126 127 128 129 130

131 132 133

ibid., para. 4–5. UN Human Rights Council, ‘Human Rights and Climate Change’ (n. 106), preamble. Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (n. 123), 477. Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (15 January 2009), UN Doc. A/HRC/10/61. For a detailed analysis of the effects of climate change, see chapter A, I. and II. Simon Caney, ‘Human Rights, Climate Change, and Discounting’ in Karen O’Brien, Asunción L St. Clair and Berit Kristoffersen (eds), Climate Change, Ethics & Human Security (CUP 2010), 114; Mariya Gromilova and Nicola Jägers, ‘Climate Change Induced Displacement and International Law’ in Jonathan Verschuuren (ed), Research Handbook on Climate Change Adaptation Law (EEP 2013), 90. Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 21–41. General Comment No. 6: The Right to Life (30 April 1982), para. 1; General Comment No. 14: Article 6 (Right to Life) Nuclear Weapons and the Right to Life (9 November 1984), para. 1. International Covenant on Civil and Political Rights (n. 118), Article 6; International Convention on the Rights of the Child (20 November 1989), 1577 UNTS 3, Article 6.

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B.  Human rights dimension of climate change

affected both directly and indirectly by climate change. Direct threats to human life include inundations resulting from rising sea levels and extreme weather events such as cyclones, floods and droughts. The right to life is indirectly compromised by rising temperatures that lead to water scarcity, reduced food production and malnutrition, and vector- and water-borne diseases.134 The ICESCR, the CRC, the Convention on the Rights of Persons with Disabilities (CRPD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) all protect the right to food, either explicitly or as a component of the right to an adequate standard of living.135 The right to food safeguards people’s right to physical and economic access to adequate food or means for its procurement.136 This right is jeopardised in numerous ways. As noted above, rising temperatures can lead to water scarcity, decreased crop productivity, and malnutrition. Furthermore, the occurrence of extreme weather events can damage crops. Because people in poor and developing countries are heavily dependent on agriculture, this poses significant threats to the right to food. The right to water is implied in the right to an adequate standard of living as enshrined in Article 11 of the ICESCR, Article 14 of the CEDAW, and Article 28 of the CRPD.137 It provides for everyone’s right to ‘sufficient, safe, acceptable, physically accessible, and affordable water for personal and domestic uses’.138 The right to water is threatened by the shrinking of glaciers that reduce water availability and by weather extremes that might impact water supply and quality.139 Article 12 of the ICESCR guarantees the right of the highest attainable standard of physical and mental health to everyone.140 The right to health includes the availability 134 Compare also Caney (n. 130), 115. 135 International Convention on the Elimination of All Forms of Racial Discrimination (7 March 1966), 660 UNTS 195, Article 5(e); International Covenant on Economic, Social and Cultural Rights (16 December 1966), 993 UNTS 3, Article 11; International Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979), 1249 UNTS 13, Article 14, para. 2(h); International Convention on the Rights of the Child (n. 133), Article 24(c); Convention on the Rights of Persons with Disabilities (13 December 2006), 2515 UNTS 3, Articles 25(f), 28. 136 General Comment No. 12: The Right to Adequate Food (12 May 1999), para. 6. 137 For a detailed analysis of the history and the scope of the right to water see Pierre Thielbörger, The Right(s) to Water: The Multi-Level Governance of a Unique Human Right (Springer 2014). 138 General Comment No. 15: The Right to Water (20 January 2003), para. 2. 139 Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 29. 140 The right to health is also protected under other core international human rights treaties, including Articles 12 and 14, para. 2(b) of the CEDAW; Article 5(e)(iv) of the ICERD; Article 24 of the CRC; and Articles 16, para. 4, 22, para. 2, and 25 of the CRPD.

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I.  Climate change effects as human rights violations?

and accessibility of functioning health-care facilities, goods, and services, as well as the cultural appropriateness and quality of health facilities.141 Similar to the right to life, the right to health could be affected by malnutrition caused by decreased food production due to rising temperatures, water scarcity, and extreme weather events that not only directly endanger human health, but also increase the spread of infectious diseases.142 The right to adequate housing is most importantly143 enshrined in the ICESCR as a component of the right to an adequate standard of living, as well as in several other human rights treaties.144 As a matter of fact, it ensures all people legal protection against forced eviction.145 Furthermore, its positive dimension guarantees the availability of services, materials, facilities, and infrastructure, as well as the affordability of housing-related costs and habitability. The accessibility of employment options, health-care services, educational institutions and other social facilities are also included in the ICESCR.146 Forced relocation of people due to submergence, flooding, and erosion of coastal systems and low-lying areas as a result of rising sea levels threaten the enjoyment of the right to adequate housing.147

2.

Collective human rights

The adverse effects of climate change do not solely threaten individual rights, but rather affect entire peoples. It is now well recognised that groups of people also qualify as bearers of human rights, the so-called collective or group rights. It is with reference to the holder of the right that most authors define group rights as opposed to individual rights.148 As to constitute a suitable holder of a right, a group of persons must possess 141 General Comment No. 14: The Right to the Highest Attainable Standard of Health (11 August 2000), para. 12. 142 Anthony J McMichael, ‘Extreme Weather Events and Infectious Disease Outbreaks’ (2015) 6(6) Virulence 539, 215. 143 General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant) (13 December 1991), para. 3. 144 Universal Declaration of Human Rights (n. 111), Article 25, para. 1; International Convention on the Elimination of All Forms of Racial Discrimination (n. 135), Article 5 (e) (iii); International Covenant on Economic, Social and Cultural Rights (n. 135), Article 11, para. 1; International Convention on the Elimination of All Forms of Discrimination against Women (n. 135), Article 14, para. 2(h); International Convention on the Rights of the Child’ (n. 133), Article 27, para. 3; Convention on the Rights of Persons with Disabilities (n. 135), Articles 9, para. 1(a) and 28, paras. 1 and 2(d). 145 General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant) (n. 1423, para. 8. 146 ibid. 147 Intergovernmental Panel on Climate Change (ed), Summary for Policymakers. Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 36), 17. 148 Nicola Wenzel, ‘Group Rights’ (2011), MPEPIL accessed 1 December 2019.

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B.  Human rights dimension of climate change

‘a certain organizational structure’.149 The first and most important group to qualify as bearers of human rights are peoples.150 The right to self-determination of peoples can be said to constitute the most well-known example of a group right.151 Corresponding to the OHCHR report, this dissertation equally focuses on the right to self-determination as to represent the collective human rights dimension of climate change. The right to self-determination is a core principle of international law and is further considered to be a rule of customary international law.152 Enshrined in common Article 1, paragraph 1 of the ICCPR and the ICESCR, the right provides for all people the entitlement to ‘freely determine [his] political status and [to] freely pursue [his] economic, social and cultural development’.153 As the realisation of the right to selfdetermination is ‘an essential condition for the effective guarantee of individual human rights’, this provision is placed before all other rights in the ICCPR and the ICESCR.154 Although there remain uncertainties as to the scope, the exercise, and potential violations of the right to self-determination,155 it is clearly jeopardised by the impacts of climate change outlined above. Rising sea levels and extreme weather events could force people and communities to leave their homes and lead to the eventual disappearance of low-lying islands.156 If entire states disappear, people of these states become stateless and are therefore deprived of their rights to self-determination. In sum, people are no longer able to freely choose their places of residence because of outside influences and the impacts of climate change.

149 ibid. 150 ibid. 151 ibid. 152 Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 39; Matthias Herdegen, Völkerrecht (16th edn, C. H. Beck 2017), § 36, para. 3, 272. 153 The right to self-determination is further enshrined in Articles 1 and 55 of the UN Charter. 154 General Comment No. 12: Article 1 (The Right to Self-determination of Peoples) (13 March 1984), para. 1. 155 Daniel Thürer and Thomas Burri, ‘Self-Determination‘ (2008) MPEPIL accessed 1 December 2019. For reasons of space, these aspects cannot be discussed in more detail here. For an in-depth analysis of the relationship between climate change and the right to self-determination, refer to Amy Maguire and Jeffrey McGee, ‘A Universal Human Right to Shape Responses to a Global Problem? The Role of Self-Determination in Guiding the International Legal Response to Climate Change’ (2017) 26(1) RECIEL 54. 156 Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 40.

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I.  Climate change effects as human rights violations?

3.

Human rights violations in a strict legal sense?

In summary, it is beyond any doubt that climate change has adverse effects on the realisation of a broad range of human rights.157 However, it is a separate question whether the impacts of climate change could be qualified as human rights violations in a strict legal sense. As the OHCHR report argues, some difficulties arise in this regard.158 Firstly, qualifying the consequences of climate change as human rights violations requires a causal link between the climatic impact and the violation. Because a multitude of state and non-state actors are contributing to global warming by emitting GHGs, it is difficult to indicate one directly responsible state to blame.159 According to John H. Knox, who was later appointed the first UN Independent Expert on Human Rights and the Environment, this obstacle can be overcome by determining the largest emitters because all GHGs are contributing to climate change.160 Therefore, the states’ shares of global emissions could determine their degree of responsibility, so that some states are more responsible for climate change than others.161 Therefore, responsibility for climate change is shared between these states and non-state actors and, to a lesser degree, other states. The five largest producers of CO2 worldwide together contributed to 58.64 % of total emissions in 2016,162 emphasising that those states bear the primary responsibility for climate change.163 But there are two main objections to allocating the states’ responsibility based on their shares of global emissions. On the one hand, this approach would ignore varying per capita emissions in each country. On the other hand, the ­largest emitters are among the most powerful states in the world. Therefore, accusing them of committing human rights violations would influence their will to sup157 International Council on Human Rights Policy, ‘Climate Change and Human Rights: A Rough Guide’ (2008) accessed 1 December 2019, 3; Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 69; Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ (2009) 33 HarvEnvtlLRev 439, 447. 158 Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 70. 159 Eric A Posner, ‘Climate Change and International Human Rights Litigation: A Critical Appraisal’ (2007) 155 UPaLRev 1925, 1927; Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 20; Gromilova and Jägers (n. 130), 91. 160 Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (n. 123), 489. 161 ibid. 162 As noted above, those are China (28.21 % of total emissions), the US (15.99 %), India (6.24 %), Russia (4.53 %), and Japan (3.67 %). See Statista (n. 94). 163 Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (n. 123), 489.

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B.  Human rights dimension of climate change

port an effective international climate agreement.164 However, both assertions do not detract from climate change being a gross violation of human rights. As noted above, although there exist huge differences between total and per capita emissions in some states (in China, for example), the overall amount of GHGs depletes the ozone layer and therefore threatens nature and life on Earth. Thus, it is each country’s global share of GHG emissions that counts rather than emissions of each person. As a matter of fact, the world’s biggest emitters, including the US, China, and Russia, all of which are permanent members of the Security Council, belong to the most powerful countries in the world. These three states together amounted to nearly 50 % of global emissions in 2016.165 However, the mere fact that these countries have far more power than others should not hinder claming them for violations of human rights. On the contrary, it is important to honestly represent grievances to effect a change in international politics. Furthermore, a president like Donald Trump is evidently not concerned with climate change or threatening human rights, so accusing him of contributing to climate change would not affect his participation in climate agreements. The second difficulty concerns the fact that global warming is often not the only cause of climate-related-disasters, such as hurricanes or environmental degradation.166 It is impossible to clearly determine the degree to which global warming has contributed to a specific natural phenomenon. This claim cannot be easily dismissed, because these events result from a complex interplay of anthropogenic and natural factors and cannot be attributed to anthropogenic climate change alone. Therefore, one cannot establish a causal link between the emission of GHGs and a concrete violation of rights of people, although anthropogenic global warming undoubtedly contributes to severe natural disasters that in turn threaten the lives of people. Thirdly, compensation under international human rights law is limited to those that have suffered from violations of human rights, whereas the debate around climate change is currently principally limited to projections of future harm.167 Although international human rights law undoubtedly also contains a preventative dimension, people who claim to be victims of a violation must prove that a concrete act or omission of a state has actually occurred or is imminent to be compensated. It is simply not sufficient to present a vague threat linked with global climate change.

164 ibid., 489–490. 165 See Statista (n. 94). 166 Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 70. 167 ibid.

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II.  States’ human rights obligations regarding climate change

Consequently, the OHCHR report refuses to qualify climate change effects as human rights violations. Nevertheless, this refusal does not implicate that states do not have any human rights obligations with regard to climate change.168 Although this assumption at first appears contradictory, it is deeply well embedded in international human rights law.169 The European Court of Human Rights (ECtHR) recently accepted several cases concerning the link between human rights and the environment.170 In Budayeva v. Russia, the ECtHR adjudicated whether the failure of the Russian authorities to warn the population of Tyrnauz of a large-scale mudslide, and failure to implement evacuation and emergency relief policies, violated the rights of the applicants living in the town. Beginning on July 18th, 2000, a series of mudslides devastated the city, which led to at least eight deaths, the destruction of homes and possessions, and the deterioration of the living conditions and health of the applicants. In its ruling, the court made reference to Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which requires states ‘to take appropriate steps to safeguard the lives of those within their jurisdiction’.171 This provision entails an obligation for states to establish an effective framework to prevent threats to the right to life of people.172 Because the authorities failed to discharge the positive obligation to establish such a legislative and administrative framework, Russia was ruled to be in violation of Article 2 of the ECHR.173 Therefore, the failure of a state to protect its people from the effects of natural disasters in general can be qualified as a human rights violation.

II.

States’ human rights obligations regarding climate change

A separate question is whether states have duties under human rights law with respect to climate change.174 In this regard, it is necessary to distinguish between the obligations of states towards their own population, potential duties towards populations of other states, and erga omnes obligations owed to all people.

168 ibid., para. 71. 169 Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (n. 123), 491. 170 See, inter alia, López Ostra v Spain ( Judgement) (1994), 20 EHRR 277; Hatton and Others v United Kingdom ( Judgement) (2003), 37 EHRR 28, which deals with the question of whether the failure of government authorities to act to prevent environmental pollution or noise nuisance constitutes a violation of Article 8 ECHR; Budayeva and Others v Russia ( Judgement) (2008) App nos 15339/02, 21166/02, 20058/02, 11673/02, and 15343/02. 171 ibid., para. 128–129. 172 ibid. 173 ibid., para. 159–60. 174 Compare also Caney (n. 130), 115.

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B.  Human rights dimension of climate change

1.

Potential scenarios

As noted above, this dissertation distinguishes between two scenarios in which obligations of states could arise: humanitarian catastrophes linked to climate change, and a general obligation of states to take long-term mitigation action. a)

Extreme humanitarian catastrophes

Extreme humanitarian catastrophes constitute the first scenario. Climate change is likely to aggravate existing humanitarian catastrophes and to cause new ones.175 The situation in East Africa is one of the most visible examples of how climate change can negatively affect people’s lives and livelihoods. In East Africa, climate change causes and aggravates droughts, poverty, chronic malnutrition, weak governance, and conflicts, and has left 11 million people ‘on the brink of starvation’.176 Pastoralists are being particularly threatened by the impacts of climate change, given that their livestock often not only serve the purpose of securing their means of economic subsistence, but are also a vital food source for families.177 In spring 2017, spokespersons of the UN have declared that ‘the worst humanitarian crisis in 60 years’ is occurring in East Africa, resulting from civil conflict, drought, economic disruption, and famine.178 Therefore, the case of East Africa is a perfect illustration of the deadly consequences of climate change, particularly when compounded by precarious social and political conditions. Sinking islands could also produce and amplify humanitarian catastrophes. A study published in 2016 clearly indicates that the disappearance of islands no longer constitutes a distant threat, but a present reality.179 According to the report, five of the Solomon Islands have completely eroded away in the last seven decades, and another six have lost more than 20 % of their surface area.180 However, the report also emphasised that the erosion of islands does not solely result from sea level rise driven by climate change. A higher than average global rate of sea-level rise and stronger trade winds, driven by both

175 A catastrophe is commonly referred to as ‘[a]n event causing great and usually sudden damage or suffering; a disaster.’ See Oxford Dictionary, ‘Definition of Catastrophe in English’ accessed 1 December 2019. 176 Compare Tracy Carty, ‘How Climate Change Is Deepening the Humanitarian Disaster in East Africa’ Huffington Post (5 April 2017) accessed 1 December 2019. 177 ibid. 178 Diego Lynch, ‘Climate Change, Economics Contribute to Worst Humanitarian Crisis in 60 Years’ (7 May 2017) accessed 1 December 2019. 179 Simon Albert and others, ‘Interactions between Sea-Level Rise and Wave Exposure on Reef Island Dynamics in the Solomon Islands’ (2016) 11(5) ERL. 180 ibid., 2.

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global warming and natural cycles, are also important factors.181 An inadequate infrastructure caused by ‘extreme events, human armouring of shorelines (e. g. seawalls) or inappropriate planning and development’, further aggravates the situation.182 By interacting ‘synergistically with localised sea-level rise’, wave energy can exacerbate coastal erosion and may therefore be a primary source of the coastal recession in the Solomon Islands.183 Flooding that results from high sea levels has led to the relocation of populations on an ad hoc basis.184 Gradual climate change will accelerate rates of sea-level rise, posing significant problems for coastal communities.185 Therefore, sinking islands also reveal the dangers associated with global climate change. aa)

States’ obligations towards their own population

As enshrined in several international treaties, states have a number of duties to protect their own people from humanitarian catastrophes.186 Human rights generally impose three levels of obligations on state parties: the obligations to respect, protect, and fulfil.187 The duty to respect requires states not to act in ways that deprive individuals of their rights and is therefore considered to be a negative duty to refrain from a particular type of action.188 In terms of climate change, it imposes on governments the responsibility to avoid or at least to reduce activities directly contributing to climate change, such as GHG emissions from government facilities and military activities.189 As noted above, these emissions in turn deplete the ozone layer and contribute to the negative consequences of anthropogenic climate change, particularly extreme weather events.

181 ibid., 6. 182 ibid., 1; Ron K Hoeke and others, ‘Widespread Inundation of Pacific Islands Triggered by DistantSource Wind-Waves’ (2013) 108 Global and Planetary Change 128. 183 Curt D Storlazzi, Edwin P L Elias and Paul Berkowitz, ‘Many Atolls May be Uninhabitable within Decades Due to Climate Change’ (2015) 5 Scientific reports, 1; Albert and others (n. 179), 7. 184 ibid. 185 Hoeke and others (n. 182), 128. 186 Notably, the ICCPR and the ICESCR enshrine protection duties for states. See International Covenant on Civil and Political Rights (n. 118); International Covenant on Economic, Social and Cultural Rights (n. 135). 187 See, inter alia, General Comment No. 12: The Right to Adequate Food (n. 136), para. 15; General Comment No. 14: The Right to the Highest Attainable Standard of Health (n. 141), para. 33; General Comment No. 15: The Right to Water (n. 138), para. 20; John H Knox, ‘Climate Change and Human Rights Law’ (2009) 50 VaJIntlL 163, 179–180. 188 Daniel M Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’ (2010) 38(3) GaJIntl&CompL 511, 519. 189 ibid., 519–520.

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The obligation of states to protect people from humanitarian catastrophes (obligation to protect), by contrast, is a positive duty.190 It could include a duty to initiate adaptation measures which reduce the vulnerability to climate change.191 An individual’s right to life is at the core of modern human rights law.192 The ICCPR upholds the inherent right of every person to life.193 In combination with their duty to respect these rights enshrined in the ICCPR, which is laid down in Article 2(1), states are obliged to protect the lives of their populations. Because humanitarian catastrophes resulting from climate change constitute a potential danger to the citizens of a state, states bear the obligation to protect their people. Furthermore, if a state is affected by such a catastrophe, states are obliged to provide aid to their populations. This positive dimension of the right to life has also been endorsed by the UN Human Rights Committee in its General Comment on Article 6 of the ICCPR, which states that ‘[t]he expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that states adopt positive measures.’194 The ICESCR complements the protection offered by its twin covenant in so far as it establishes ‘the legal space for individuals to demand the full range of humanitarian aid.’195 The right to an adequate standard of living, including adequate food, clothing, housing, and the right to health are crucial in this regard.196 Furthermore, the ICESCR entails an obligation for states to take steps towards the full realisation of the rights recognised in covenant.197 Accordingly, the duty to fulfil requires states to establish an appropriate framework for the full realisation of human rights by adopting legislative, administrative, budgetary, judicial, promotional and other measures.198 This includes ‘national policies aimed at reducing and eliminating pollution of air, water and soil’.199 Therefore, at least on the national level, states are required to take action to reduce their vulnerability to the impacts of climate change.

190 ibid., 520. 191 ibid. 192 Jim Benton Heath, ‘Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and the Work of the International Law Commission’ (2011) 43(2) JILP 419, 438. The right to life is, inter alia, enshrined in the ICCPR as well as the UDHR. See International Covenant on Civil and Political Rights (n. 118), Article 6(1); Universal Declaration of Human Rights (n. 111), Article 3. 193 International Covenant on Civil and Political Rights (n. 118), Article 6(1). 194 General Comment No. 6: The Right to Life (n. 132), para. 5. Compare in this regard also Henry J Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context (3rd edn, OUP 2007), 188. 195 Benton Heath (n. 192), 439. 196 International Covenant on Economic, Social and Cultural Rights (n. 135), Articles 11(1) and 12(1). 197 ibid., Article 2(1). 198 General Comment No. 14: The Right to the Highest Attainable Standard of Health (n. 141), para. 33. 199 ibid., para. 36.

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However, the question arises concerning whether the duties under the ICCPR and the ICESCR also encompass a requirement for states to accept humanitarian assistance. Such a duty undoubtedly exists under IHL, as enshrined in Article 70 of Additional Protocol I to the Geneva Conventions.200 International human rights law does not explicitly recognise an obligation to accept humanitarian assistance. However, the UN General Assembly in 1990 considered abandoning the victims of natural disasters without humanitarian assistance to be a ‘threat to human life and an offence to human dignity’.201 General Comment 12 on the right to food (Article 11 of the ICCPR) even appears to suggest a duty to seek international support if a state is unable to provide access to food for its population.202 These responsibilities which were placed on states to adopt positive measures aimed at realising the rights enshrined in the twin covenants themselves indicate that state parties bear the obligation to accept humanitarian assistance.203 States that deliberately refuse offers of external assistance would be in violation of a number of human rights laws, particularly the right to life (Article 6 ICCPR), the right to an adequate standard of living, and the right to health (Articles 11 and 12 ICESCR). As noted above, the ECtHR has ruled Russia to be in violation of Article 2 of the ECHR because Russian authorities failed to fulfil their obligation to provide a legislative and administrative framework to protect people from threats to the right to life.204 Accordingly, states are required to take all necessary steps to protect their populations. If implementing this protection requires the acceptance of external humanitarian assistance, states are prohibited from deliberately refusing offers of aid.

200 Article 70 of the Additional Protocol I to the 1949 Geneva Conventions obliges parties to an international armed conflict to accept impartial humanitarian assistance in cases in which the civilian population on their territory is not adequately provided with food, clothing, bedding, means of shelter, and other supplies essential to survival. See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977), 1125 UNTS 3. Although such relief actions are ‘subject to the agreement of the Parties concerned in such relief actions’, ‘[a] Party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones.’ Compare Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers 1987), Protocol I – Article 70, para. 2805. 201 Humanitarian Assistance to Victims of Natural Disasters and Similar Emergency Situations (14 December 1990), UN Doc. A/Res/45/100, preamble; Ambassador of the United States Rosemary DiCarlo, ‘General Assembly Debate on the Responsibility to Protect, 63rd Session, 97th Plenary Meeting, Statement of the United States’ (23 July 2009). 202 General Comment No. 12: The Right to Adequate Food (n. 136), para. 12. 203 See also Rebecca Barber, ‘Facilitating Humanitarian Assistance in International Humanitarian and Human Rights Law’ (2009) 91(874) IRRC 371, 392. 204 Budayeva and others v Russia (n. 170), para. 159–60.

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bb)

States’ obligations towards populations of other states

Although international human rights law primarily enumerates duties of states towards their own population, obligations of states towards populations of other states could also exist. (1)

Potential obligations

Potential obligations of states towards populations of other states in situations of humanitarian emergences include a duty to provide disaster relief and humanitarian assistance to victims of natural disasters. With regard to the right to be free from hunger, the covenant stresses the importance of states cooperating with regard to the overall aim of achieving equitable and needs-based food distribution.205 This provision is particularly relevant in emergency situations such as humanitarian catastrophes given the immediate need of world food supplies in these situations. This might therefore indicate a duty to cooperate in aiding victims of natural disasters.206 As far as the right to health is concerned, a duty to cooperate in the provision of assistance to other states that are unable to meet the economic and social rights of their people does not exist.207 Although the CESCR has repeatedly stressed the importance of international cooperation in fully realising the right to health,208 General Comments are not considered to be legally binding, and states have by and large refused to accept such a legal obligation.209 However, the Committee has indicated that state parties should cooperate in providing ‘disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons.’210 In these emergency situations that necessarily involve immense human suffering, there can be no other option for states than to deliver humanitarian assistance in accordance with their capaci-

205 International Covenant on Economic, Social and Cultural Rights (n. 135), Article 11(2)(b). 206 Compare also Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9(2) HRQ 156, 186 f., stating that some provisions of the ICESCR ‘could be interpreted as giving rise to an obligation on the part of the richer states parties to provide assistance to poorer states parties in situations in which the latter are prevented by a lack of resources from fulfilling their obligations under the Covenant to their citizens.’ However, Alston and Quinn argue that a general obligation to provide development assistance does not yet exist. 207 Compare also Philip Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals’ (2005) 27(3) HRQ 755, 776 f. 208 General Comment No. 14: The Right to the Highest Attainable Standard of Health (n. 141), para. 38. 209 Alston (n. 207), 773, 776 f. 210 General Comment No. 14: The Right to the Highest Attainable Standard of Health (n. 141), para. 40.

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ties. In this regard, under international human rights law, states at least bear a responsibility for supporting states affected by extreme humanitarian catastrophes. (2)

Legal bases

In this section, the legal bases for an obligation of states to provide assistance to states in need are assessed. As John H. Knox indicated, the human rights jurisprudence with regard to environmental protection was developed for environmental harm that does not cross international borders,211 whereas climate change stands out as a ‘transboundary problem on a global scale’.212 Therefore, the question arises as to whether the existing jurisprudence relating to human rights and the environment is applicable to humanitarian catastrophes linked to climate change. In this regard, Knox proposed two solutions: the extraterritorial application of the environmental human rights jurisprudence, and an obligation under the international duty of cooperation.213 IRL could also provide a legal basis for obligations of states because it has its roots partially in international human rights law. Furthermore, both branches of international law equally aim at protecting the lives and health of people. Together with IRL, international human rights law and IHL form a system of complementary protection. (a)

Extraterritorial extension of environmental human rights jurisprudence

The implementation of international human rights law is generally considered to be a domestic matter.214 Nevertheless, states’ human rights obligations could be extended beyond its territorial boundaries in exceptional cases. Therefore, the question arises concerning whether the environmental human rights jurisprudence could be applied beyond the country where the harm originates.215 According to Article 2(1) of the ICCPR, state parties are required ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.’216 Legal scholars are at odds over whether the requirements of both the territory and the jurisdiction have to be met,217 or if this passage has to be read disjunctively as offering 211 212 213 214

Knox, ‘Climate Change and Human Rights Law’ (n. 187), 191. ibid., 196. ibid., 200. Manfred Nowak, ‘Art. 2 CCPR’ in Manfred Nowak (ed), U. N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn. N. P. Engel 2005), para. 1; International Council on Human Rights Policy (n. 157), 4; Steven R Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (OUP 2015), 269. 215 Knox, ‘Climate Change and Human Rights Law’ (n. 187), 200 f. 216 International Covenant on Civil and Political Rights (n. 118), Article 2(1). 217 In this sense Egon Schwelb, ‘Some Aspects of the International Covenants on Human Rights of December 1966’ in Asbjoern Eide and August Schou (eds), International Protection of Human Rights

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protection to all individuals either within the territory of a state or subject to its jurisdiction.218 The current predominant view holds that the ICCPR applies to all people situated within the territory or subject to the jurisdiction of a state.219 Therefore, the persons encompassed within the extraterritorial jurisdiction of the ICCPR must be ascertained. According to General Comment 31, the provisions are guaranteed to people within the power or effective control of a state party, even if the person is situated outside the state territory.220 Persons are under the ‘effective control’ of a state party if, for instance, they are arrested or kidnapped by a state.221 Therefore, it appears difficult to argue that the effects of a natural disaster linked to climate change amount to an exercise of extraterritorial jurisdiction.222 One possibility might be, as John H. Knox argued, to place the victims of transboundary harm under the control of the country where the harm originates.223 With regard to humanitarian catastrophes linked to climate change, this argument is more difficult to make because many states and non-state actors share the responsibility for the impacts of global warming. Nevertheless, some particularly severe effects of climate change could force populations of small island states to lose control over their lives and to leave their homes. Although it is difficult to hold some states responsible for particular consequences of climate change, one can argue that those countries contributing the most to GHG emissions exercise the effective control over climate migrants.224 The ICESCR does not include a jurisdiction limitation clause similar to the ICCPR. On the contrary, its Article 2(1) enshrines the obligation of each state party ‘to take steps, individually and through international assistance and co-operation […] with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.’225 This passage could serve as a legal basis for

218 219

220 221 222 223 224 225

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(Nobel Symposium) (Almqvist & Wiksell 1968), 109; Manfred Nowak, ‘The Effectiveness of the International Covenant on Civil and Political Rights – Stocktaking After the First Eleven Sessions of the UN-Human Rights Committee’ (1980) 1 HRLJ 136, 156. In this sense Nowak, ‘Art. 2 CCPR’ (n. 214), para. 30; Knox, ‘Climate Change and Human Rights Law’ (n. 187), 202. Theodor Meron, ‘Agora: The 1994 U. S. Action in Haiti: Extraterritoriality of Human Rights Treaties’ (1995) 89 AJIL 78, 78–79; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004), ICJ Rep 136, 180, para. 111; General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004), UN Doc. CCPR/C/2 1/Rev. 1/Add.13, para. 10. ibid., para. 10. Knox, ‘Climate Change and Human Rights Law’ (n. 187), 203. Compare also ibid., 202. John H Knox, ‘Diagonal Environmental Rights’ in Mark Gibney and Sigrun Skogly (eds), Universal Human Rights and Extraterritorial Obligations (Penn Press 2010), 87; Alan Boyle, ‘Human Rights and the Environment: Where next?’ (2012) 23(3) EJIL 613, 638. Knox, ‘Climate Change and Human Rights Law’ (n. 187), 204. International Covenant on Economic, Social and Cultural Rights (n. 135), Article 2(1).

II.  States’ human rights obligations regarding climate change

states’ extraterritorial obligations to protect people from the adverse effects of climate change. In September 2011, the Maastricht Centre of Human Rights and the International Commission of Jurists convened a meeting of international experts in international law and human rights which led to the adoption of the ‘Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’.226 The committee elaborated a set of 41 principles covering the states’ duties to protect, respect and fulfil economic, social and cultural rights which attempted to clarify the existing extraterritorial human rights obligations. In terms of the scope of jurisdiction, the extraterritorial human rights obligations of states apply to situations over which a state exercises ‘authority or effective control’, situations over which ‘state acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory’, and to situations in which the state exercises ‘decisive influence or to take measures to realize economic, social and cultural rights extraterritorially’.227 Although these principles are not considered to be legally binding, their adoption has succeeded in raising awareness of the difficult issue of the extra-territorial application of existing human rights. Nearly every General Comment that the CESCR has recently published refers to the states’ duty to provide ‘international assistance and cooperation’228 to stipulate extraterritorial obligations.229 These obligations can be subdivided into two categories, namely the duty to provide long-term assistance and a short-term duty to respond to emergencies.230 Applying those principles to climate change, developed states could be obligated to provide both long-term development aid and short-term assistance to states affected by humanitarian catastrophes linked to climate change.

226 ETO Consortium, ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ ( January 2013) accessed 1 December 2019. 227 ibid., Principle 9. 228 General Comment No. 12: The Right to Adequate Food (n. 136), para. 36; General Comment No. 14: The Right to the Highest Attainable Standard of Health (n. 141), para. 45; General Comment No. 15: The Right to Water (n. 138), para. 30. 229 Knox, ‘Climate Change and Human Rights Law’ (n. 187), 207. 230 ibid. With regard to particular long-term liabilities, the CESCR stated that ‘[d]epending on the availability of resources, States should facilitate realization of the right to water in other countries, for example through provision of water resources, financial and technical assistance […]’. See General Comment No. 15: The Right to Water (n. 138), para. 34. Short-term obligations could include the duty ‘to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons’. See General Comment No. 12: The Right to Adequate Food (n. 136), para. 38; General Comment No. 14: The Right to the Highest Attainable Standard of Health (n. 141), para. 40.

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In conclusion, both the ICCPR and the ICESCR might impose extraterritorial obligations on states. However, it remains unclear which duties states exactly possess. Furthermore, extending the environmental human rights jurisprudence to climate change would signify treating climate change as an accumulation of several transboundary issues rather than as a global threat to human rights.231 Taking into consideration that the causes and the effects of climate change are scattered across the world, this solution fails to successfully address a global threat like climate change.232 Therefore, the next section analyses whether the international duty to cooperate could serve as a legal basis for the application of the existing environmental human rights jurisprudence to climate change. (b)

Obligations under the international duty of cooperation

The existence of an international duty to cooperate derived from international human rights law is now widely recognised. States have also committed themselves to mutual support and to pursuing the full realisation of the rights recognised in the covenant by ratifying the ICESCR.233 Furthermore, one of the core functions of the UN is ‘to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character’ as enshrined in Article 1(3) of the UN Charter. Another reference to the duty to cooperate can be found in Articles 55 and 56 of the UN Charter, in which it is proclaimed that international cooperation is necessary for achieving higher standards of living, deriving solutions to international economic, social, and health problems, as well as securing universal respect for human rights and fundamental freedoms for all. The ICESCR further stresses the need to cooperate in these matters and places this responsibility chiefly on rich and developed states.234 Therefore, the international duty of cooperation can be derived from international human rights law and is considered to be an important principle of international relations. The question arises as to whether catastrophes linked to climate change constitute ‘international problems of a humanitarian character’. As a matter of fact, a universal answer to this question does not exist because the implications of each disaster are different. For example, an earthquake that does not hit a single country, but rather millions of people in several states may well be an international problem, particularly when people are forced to flee their homes. On the other hand, some events only have domestic effects and are therefore considered solely national problems. 231 232 233 234

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Knox, ‘Climate Change and Human Rights Law’ (n. 187), 211. ibid., 211; Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’ (n. 188), 524. International Covenant on Economic, Social and Cultural Rights (n. 135), Article 2(1). General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant) (14 December 1990), UN Doc. E/1991/23, annex III, para. 14.

II.  States’ human rights obligations regarding climate change

Considering the nature of climate change as a global phenomenon, it makes sense to take the international duty of cooperation as a legal basis for states’ duty to assist states affected by humanitarian catastrophes linked to climate change. In contrast to the extraterritorial application of environmental human rights law that treats climate change as a domestic problem, this approach requires states to act as a single polity at the global level.235 However, it remains unclear what the implications of the international duty of cooperation are for states, because ‘cooperation’ can assume various forms. Therefore, the next section determines whether IRL provides clarity in this regard. (c)

Obligations under international refugee law

When elaborating protection duties of states vis-à-vis their populations or people from other states, IRL also needs to be considered. Although international human rights law and refugee law constitute two separate branches of international law, they are closely intertwined. If states manifestly fail to uphold human rights of people on their territories, affected populations may be willing to flee their homes and to seek refuge in other countries. Therefore, a duty to protect people from the adverse impacts of climate change could arise from IRL, which is mainly governed by the ‘Guiding Principles on Internal Displacement’236 and the ‘Convention relating to the Status of Refugees’.237 The plight of persons fleeing from the devastating impacts of climate change without crossing an international border is covered by the Guiding Principles on Internal Displacement.238 However, given that this thesis intends to examine obligations of the international community under human rights law and R2P, it focuses on cross-border displacement in the context of climate change, which could entail the responsibilities of other states.

235 Knox, ‘Climate Change and Human Rights Law’ (n. 187), 218. 236 UN High Commissioner for Refugees, ‘Guiding Principles on Internal Displacement’ (22 July 1998), UN Doc. E/CN.4/1998/53/Add.2. 237 International Convention Relating to the Status of Refugees (n. 5). 238 ‘[I]nternally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of […] natural or human-made disasters […]’. See UN High Commissioner for Refugees, ‘Guiding Principles on Internal Displacement’ (n. 236), Introduction: Scope and purpose, para. 2. Compare also Williams (n. 3), 511.

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The notion of ‘environmental refugees’ was coined in 1985 by Essam El-Hinnawi, a UN Environment Programme (UNEP) researcher, who defined environmental refugees as people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardised their existence and/or seriously affected the quality of their life.239 Correspondingly, the notion of ‘climate refugees’ is often used to describe people who have to leave their habitats, immediately or in the near future, because of sudden or gradual alterations in their natural environment related to at least one of three impacts of climate change: sea-level rise, extreme weather events, and drought and water scarcity.240 However, this notion has no legal implications, given that the 1951 Refugee Convention only applies to persons fleeing persecution or violence committed by human actors.241 The UNHCR maintains that victims of natural disasters do not fall under the scope of the convention, unless they are also persecuted for one of the reasons stated.242 Therefore, unless the impacts of climate change are defined as a kind of ‘persecution’ committed by polluting states,243 climate refugees are not protected under IRL.244

239 Essam El-Hinnawi, ‘Environmental Refugees: Report of the UN Environment Programme’ (Nairobi), 4, quoted in Frank Biermann and Ingrid Boas, ‘Preparing for a Warmer World – Towards a Global Governance System to Protect Climate Refugees’ (2010) 10(1) GEP 60, 62. 240 ibid., 67. 241 ‘Persecution is normally related to action by the authorities of a country.’ See International Convention Relating to the Status of Refugees (n. 5), Article 1a(2); UN High Commissioner for Refugees, ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (December 2011), UN Doc. HCR/1P/4/ENG/REV.3, para. 65; Alice Edwards, ‘Climate Change and International Refugee Law’ in Rosemary Rayfuse and Shirley V Scott (eds), International Law in the Era of Climate Change (EEP 2012), 64; Walter Kälin and Hannah Entwisle Chapuisat, ‘Displacement in the Context of Disasters and Adverse Effects of Climate Change’ in Susan Breau and Katja LH Samuel (eds), Research Handbook on Disasters and International Law (EEP 2016), 364. 242 UN High Commissioner for Refugees, ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (n. 241), para. 39. 243 The adverse impacts of climate change, among them rising sea levels, and extreme weather events such as droughts, floods and storms, are harmful, but they do not amount to ‘persecution’ as this is currently understood in international law. Compare Jane McAdam and Ben Saul, ‘An Insecure Climate for Human Security? Climate-induced Displacement and International Law’ in Alice Edwards and Carla Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs (CUP 2010), 371; Benoit Mayer, ‘The International Legal Challenges of Climate-Induced Migration: Proposal for an International Legal Framework’ (2011) 22(3) ColoJIntlEnvtlL&Pol 357, 383. 244 Molly Conisbee and Andrew Simms, Environmental Refugees: The Case for Recognition (New Economics Foundation 2003), 34; Williams (n. 3), 507–508; Mayer (n. 243), 379; Jane McAdam, ‘Climate Change Displacement and International Law: Complementary Protection Standards’ (2011) accessed 1 December 2019.

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II.  States’ human rights obligations regarding climate change

Furthermore, the group of ‘climate refugees’ differs in some important points from people fleeing other atrocity crimes. Firstly, because climate change threatens the existence of some states, climate refugees tend to migrate collectively in large numbers.245 In addition, due to the impossibility of climate refugees returning to their former places of residence,246 the negative consequences of climate change constitute one of the greatest challenges of the present and future. However, given that the refugee convention does not apply to climate refugees, IRL cannot serve as a legal basis for obligations of states vis-à-vis refugees of climate-related disasters. Therefore, this thesis intends to analyse whether R2P could help to overcome this challenge. b)

Mitigation of climate change

A second scenario concerns the mitigation of climate change in general. In this regard, states could have the obligation to regulate private GHG emissions and to sign on to positive long-term measures to mitigate climate change, such as the UNFCCC and the Paris Agreement. aa)

States’ obligations towards their own populations

First, states could have obligations towards their own populations that originate from international human rights law. The International Bill of Human Rights does not specifically concern CCM. However, in 2008 the UNHRC asserted that climate change constitutes an immediate threat to all people and impedes the full enjoyment of human rights.247 Later, UN representatives went a step further by stating that it is ‘beyond debate’ that the consequences of climate change, particularly the rise in temperature, the shrinking of glaciers, sea level rise, and the increased frequency and intensity of extreme weather events such as cyclones, floods, droughts, and heatwaves, will threaten a broad range of human rights.248 As noted above, the rights to life, food, water, health, adequate housing, and the right to self-determination are particularly affected.249 Therefore, if the 245 Biermann and Boas (n. 239), 66. 246 ibid. 247 UN Human Rights Council, ‘Human Rights and Climate Change’ (n. 106), preamble. 248 Compare also Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’ (n. 188), 518; Lavanya Rajamani, ‘The Increasing Currency and Relevance of Rights-Based Perspectives in the International Negotiations on Climate Change’ (2010) 22(3) Journal of Environmental Law 391. 249 Office of the United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (n. 128), para. 21–41; Limon (n. 157), 447; Caney (n. 130), 114; Gromilova and Jägers (n. 130), 90; Office of the United Nations High Commissioner for Human Rights, ‘COP21: “States’ Human Rights obligations Encompass Climate Change” – UN Expert’ (3 December 2015)

accessed 1 December 2019; UN Human Rights Council, ‘Human Rights and Climate Change’ (18 July 2016), UN Doc. A/HRC/RES/32/33. See also chapter B. I. of this thesis.

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impacts of climate change undermine the full exercise of human rights, states would be obliged to take mitigation measures. A separate question is whether states have the general obligation to mitigate climate change in the absence of evidence of human rights violations. Such a duty would have positive and negative dimensions and would be aimed at protecting people from the adverse impacts of climate change through reductions of GHG emissions.250 As noted above, states could be obligated in this paradigm to use renewable sources such as wind, solar, and hydropower. Furthermore, demand-side management plays a major role in mitigation, which could lead to a responsibility on the part of states to establish policies to encourage a more efficient energy use in households, the use of public transport, and food waste reduction. Furthermore, the ICESCR explicitly refers to the link between human rights and the environment by stating that states shall adopt measures directed at ‘the improvement of all aspects of environmental and industrial hygiene’ to achieve the full realisation of the right to health.251 The 2013 report by John H. Knox even goes so far as to say that human rights law encompasses obligations related to the environment, including procedural and substantive obligations.252 According to Knox, states are obligated to adopt legal and institutional frameworks that protect against environmental harm which could hinder the enjoyment of human rights, including harm caused by private actors.253 Thus, Knox referred to the duty to fulfil. The negative impacts of climate change outlined above undoubtedly qualify as ‘environmental harm’ in this sense.254 However, as the 2013 report is classified as soft law, a duty to mitigate climate change still cannot be derived from existing human rights law. In October 2018, an appeals court in The Hague confirmed a historic judgement on climate change which places the obligation on the Dutch government to accelerate carbon emissions cuts.255 The judges ruled that the impending consequences of climate change require GHG reductions of at least 25 %, measured against 1990 levels by 2020. As a low-lying country, the Netherlands is at risk of being severely affected by future cli250 Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’ (n. 188), 520. 251 International Covenant on Economic, Social and Cultural Rights (n. 135), Article 12(2)(b). 252 UN Human Rights Council, ‘Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H. Knox’ (30 December 2013), UN Doc. A/HRC/25/53, para. 79–80. 253 ibid. 254 Compare Michael Burger and Jessica Wentz, ‘Climate Change and Human Rights’ (2015) accessed 1 December 2019, 19. 255 Arthur Neslen, ‘Dutch appeals court upholds landmark climate change ruling’ The Guardian (9 October 2018) accessed 1 December 2019.

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mate change, and so the government is under increasing pressure to act now. The court found violations of Articles 2 (the right to life) and 8 (the right to family life) ECHR. It determines that both Article 2 and Article 8 ECHR may apply in environment-related situations.256 The court goes on to state that the state has a positive obligation to protect the lives of its citizens under Article 2 ECHR, while an obligation to protect the right to home and private life can be deduced from Article 8 ECHR.257 It specifies the negative effects of global warming, and concludes that the Netherlands have a duty to protect people from the real threat that current generations of citizens will face loss of life or disruption of family life.258 This duty should from Articles 2 and 8 ECHR. Although it is surely a success that the court did consider the human rights implications of climate change, it fails to distinguish between both provisions, thereby appearing to commingle the different scopes of application. Nevertheless, while it remains to be seen whether other courts will follow this line of argumentation, the judgement can be hailed as a landmark decision which highlights the increasing recognition of the legal dimension of climate change. A corresponding verdict by the ECtHR would carry significant weight in terms of legal obligations to counteract climate change. There are further additional discussions about whether to recognise a human right to a healthy or clean environment.259 A stand-alone right to a healthy environment is recognised in a number of non-binding international documents,260 regional human rights instruments,261 and national constitutions.262 However a human right to a healthy envi256 Urgenda Foundation v. Kingdom of the Netherlands (Appeal Judgement) (2018) Case number 200.178.245/01, para. 40. 257 ibid., para. 43. 258 ibid., para. 45. 259 Compare, inter alia, Giorgetta (n. 115); Ken Conca, ‘A Healthy Environment is a Human Right’ The Guardian (1 October 2015) accessed 1 December 2019; Daniel M Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law (OUP 2017), 303–304. 260 Compare, inter alia, ‘Problems of the Human Environment’ (3 December 1968), UN Doc. A/ RES/2398 (XXII); ‘Need to Ensure a Healthy Environment for the Well-Being of Individuals’ (14 December 1990), UN Doc. A/RES/45/94. 261 Compare, inter alia, African Charter on Human and Peoples’ Rights (n. 118), Article 24 (Right to a ‘general satisfactory environment’); Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) 17 November 1988, Article 11 (Right to a healthy environment). 262 As of October 2018, 101 national constitutions recognise a right to a healthy environment. See David R Boyd, The Right to a Healthy Environment: Revitalizing Canada’s Constitution (UBC Press 2012), 75, figure 4.2; David R Boyd, ‘Constitutions, Human Rights, and the Environment: National Approaches’ in Anna Grear and Louis J Kotzé (eds), Research Handbook on Human Rights and the Environment (EEP 2015), 178–179, table 10.2, updated to August 2018 using Google Constitute . Portugal was the first country to include the right to a healthy environment in its constitution in 1976. See Constitution of the Portuguese Republic 25 April 1976 (The Portuguese Republic) Article 66 (Environment and quality of life).

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ronment does not currently exist at the global level.263 Therefore, people cannot claim violations of such a right. bb)

States’ obligations towards populations of other states

Under international human rights law, states could also have obligations towards populations of other states. (1)

Potential obligations

As noted above, human rights generally impose three levels of obligations on states, namely the obligations to respect, protect, and fulfil human rights.264 A global obligation to mitigate climate change could entail measures similar to the obligation towards the citizens of a state. A duty towards populations of other states would equally be intended to protect people from the adverse impacts of climate change. This could include a duty to regulate private emissions to achieve carbon neutrality, thus reducing the GHG emissions of a state to zero. Furthermore, an additional obligation of a global character would be a duty to sign on to long-term measures to cope with the impacts of climate change. This could obligate states to participate in international climate negotiations and to ratify the respective outcomes of those meetings, such as the most recent 2015 Paris Agreement. Finally, the duty to fulfil requires states to establish legal and administrative frameworks for the realisation of human rights. In this regard, developed states might not only have an obligation to put in place their own policies, but also to help poorer states in establishing CCM policies.265 Such a duty could entail development assistance and recommendations on potential technological, behavioural, and policy changes in developing countries aimed at mitigating climate change. However, this section has solely outlined measures that might be covered by a respective obligation of states. The potential existence of legal bases of such duties is analysed in the following section.

263 Compare also Burger and Wentz (n. 254), 12. 264 See, inter alia, General Comment No. 12: The Right to Adequate Food (n. 136), para. 15; General Comment No. 14: The Right to the Highest Attainable Standard of Health (n. 141), para. 33; General Comment No. 15: The Right to Water (n. 138), para. 20; Knox, ‘Climate Change and Human Rights Law’ (n. 187), 179–180. 265 Bodansky, Brunnée and Rajamani (n. 259), 521.

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(2)

Legal bases

Similar to potential obligations of states to provide humanitarian assistance to populations in need in case of natural disasters, the extraterritorial application of the environmental human rights jurisprudence and the international duty of cooperation could provide a legal basis for obligations of states to constrain climate change. In terms of the International Bill of Human Rights, states would be obligated to adopt mitigation measures if the impacts of climate change were to undermine the enjoyment of human rights. As noted above, the rights to life, food, water, health, adequate housing and self-determination are in particular danger of being threatened by the impacts of climate change. In this situation, states would be obligated to act to protect people under their jurisdiction. However, several obstacles arise when attempting to establish a general obligation to mitigate climate change based on the extraterritorial application of human rights. It has already been indicated that states do not have a general duty to take CCM measures even vis-à-vis their own populations, unless there is an imminent danger of human rights violations. Therefore, the extraterritorial application of human rights cannot obligate the international community to engage in CCM. A human right to a healthy environment is currently non-existent, and thus people cannot claim the violation of such a right. Therefore, in the absence of a concrete violation of human rights, there does not exist a basis for the extraterritorial application of environmental human rights to stipulate a duty to mitigate climate change. The international duty to cooperate generally requires states to work together to prevent the worst effects of global warming on human rights from occurring.266 However, although such a development could be desirable, this duty cannot be interpreted to include an obligation of states to agree to international climate change agreements. Rather, states are free to decide whether to join a particular treaty. Therefore, neither the extraterritorial application of human rights nor the international duty of cooperation establishes a general obligation of states to mitigate climate change. cc)

Erga omnes obligations

A duty of states to mitigate climate change could further constitute an obligation erga omnes, an obligation owed towards the international community as a whole.267 In its judgement in the second phase of the Case concerning the Barcelona Traction Light & Power Company Limited,268 the International Court of Justice (ICJ) affirmed the existence 266 Knox, ‘Climate Change and Human Rights Law’ (n. 187), 213. 267 Case concerning the Barcelona Traction Light & Power Company, Ltd (Belgium v Spain) ( Judgement) (1970), ICJ Rep 32, para. 33. 268 ibid.

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of obligations erga omnes that are, ‘by their very nature’, the concern of all states.269 These obligations do not only apply to a single state but are rather to all states. Therefore, all states have a legal interest to safeguard the rights involved.270 Recognised erga omnes obligations include the prohibition of genocide, torture, and slavery.271 Environmental obligations have not yet been affirmed by the ICJ as being erga omnes in character.272 However, in reality climate change can no longer be said to concern only a limited number of states. UN General Assembly Resolution 43/53 has referred to climate change as ‘a common concern of mankind’, since a stable climate is essential to sustaining life on earth.273 Common concern is a principle of international environmental law that is rooted in the rights of fisheries on the high seas.274 The concept gained currency in the early 1990 s after being introduced into a number of international treaties, resolutions, and other international agreements.275 It has been referred to in four environmental treaties to date, namely the UNFCCC,276 the Convention on Biological Diversity,277 the International Treaty on Plant Genetic Resources for Food and Agriculture,278 and the UN Educational, Scientific and Cultural Organisation (UNESCO) Convention for the Safeguarding of the Intangible Cultural Heritage.279 269 ibid., para. 33. 270 ibid. 271 Torsten Stein, Christian von Buttlar and Markus Kotzur, Völkerrecht (14th edn, Franz Vahlen 2017), para. 150. 272 Compare, inter alia, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996), ICJ Rep 226, para. 29; Daniel M Bodansky, Jutta Brunnée and Ellen Hey (eds), Oxford Handbook of International Environmental Law (OUP 2008), 550, 553–556; Malgosia Fitzmaurice, ‘Responsibility and Climate Change’ (2010) 53 GYIL 89, 97; Bodansky, Brunnée and Rajamani (n. 259), 49. 273 ‘Protection of Global Climate for Present and Future Generations of Mankind (6 December 1988), UN Doc. A/Res/43/53, para. 1. 274 See, inter alia, United States of America and Republic of Costa Rica, ‘Convention for the Establishment of an Inter-American Tropical Tuna Commission’ (31 May 1949), 80 UNTS 3, considering tuna and other kinds of fish as of common concern to the state parties. 275 Jutta Brunnée, ‘Common Areas, Common Heritage, and Common Concern’ in Daniel M Bodansky, Jutta Brunnée and Ellen Hey (eds), Oxford Handbook of International Environmental Law (n. 272), 565. 276 United Nations Framework Convention on Climate Change (n. 15), preamble, para. 1, considering ‘change in the Earth’s climate and its adverse effects’ a common concern. 277 Convention on Biological Diversity (5 June 1992), 1760 UNTS 79, preamble, para. 3: ‘[a]ffirming that the conservation of biological diversity is a common concern of humankind’. 278 International Treaty on Plant Genetic Resources for Food and Agriculture (3 November 2001), 2400 UNTS 303, preamble, para. 3: ‘[c]ognizant that plant genetic resources for food and agriculture are a common concern of all countries’. 279 Convention for the Safeguarding of the Intangible Cultural Heritage (17 October 2003), 2368 UNTS 1, preamble, para. 6: ‘[b]eing aware of the universal will and the common concern to safeguard the intangible cultural heritage of humanity’.

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The concept of common concern encourages states to cooperate to solve global problems that transcend the borders of a single state and must therefore be addressed through collective action.280 Regarding an issue as a common concern of humankind removes the issue from the reserved domain and exclusive domestic jurisdiction of a state and legitimises the involvement of the international community in matters that would otherwise fall exclusively within the domestic sphere.281 Because they often cannot be effectively handled by regional or national measures,282 environmental issues such as natural disasters and climate change can be deemed common concerns.283 Other recognised common concerns include environmental degradation of the Arctic and the conservation of biodiversity.284 The key paragraph of Resolution 43/53 does not lay specific obligations on states, but rather serves a ‘legitimising function’ by declaring climate change a common concern of mankind.285 Accordingly, in spite of the widespread acceptance of the notion of common concern, its material content is ‘far from being precisely elaborated’.286 The concept certainly encourages states to cooperate on environmental issues but exactly which legal duties states possess remains unclear. Even if an issue is perceived to be of common concern, this notion does not necessarily entail legal consequences. Thus, the concept only establishes a general framework for the international community to act within.287 Therefore, the legal character of the concept can be described as being ‘somewhere be280 Mostafa K Tolba, ‘The Implication of the ‘Common Concern of Mankind’ Concept on Global Environmental Issues (note by Executive Director of UNEP, to the Group of Legal Experts, Malta, Dec. 13–15, 1990)’ (1991) 13 Revista IIDH 237, 239; Dinah Shelton, ‘Common Concern of Humanity’ (2009) 5 Iustum Aequum Salutare 33, 34; Thomas Cottier and others, ‘The Principle of Common Concern and Climate Change’ (2014), Working Paper No 2014/18, NCCR Trade Working Paper, 5; Krista Nadakavukaren Schefer and Thomas Cottier, ‘Responsibility to Protect (R2P) and the Emerging Principle of Common Concern’ in Peter Hilpold (ed), The Responsibility to Protect (R2P) – A new Paradigm of International Law? (Koninklijke Brill NV 2015), 124. 281 Shelton (n. 280), 40; Michael Bowman, ‘Environmental Protection and the Concept of Common Concern of Mankind’ in Malgosia Fitzmaurice, David M Ong and Panos Merkouris (eds), Research Handbook on International Environmental Law (EEP 2010), 503; Vito de Lucia, ‘Climate Change and the Arctic as a Common Concern’ (9 May 2016) accessed 1 December 2019. 282 Nadakavukaren Schefer and Cottier (n. 280), 127. 283 Shelton (n. 280), 35. 284 De Lucia (n. 281). 285 Frederic L Kirgis, ‘Standing to Challenge Human Endeavors that Could Change the Climate’ (1990) 84(2) AJIL 525, 526 f. 286 Frank Biermann, ‘Common Concern of Humankind: The Emergence of a New Concept of International Environmental Law’ (1996) 34(4) AVR 426. See also Cottier and others (n. 280), 23. 287 Shelton (n. 280), 38; Krista Nadakavukaren Schefer and Thomas Cottier, ‘Responsibility to Protect (R2P) and the Emerging Principle of Common Concern’ (2012) accessed 1 December 2019, 13.

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yond the starting point on the continuum from nonlaw to true law’.288 Specific obligations of states are determined in international environmental treaties such as the UNFCCC and its additional Kyoto Protocol. Declaring an issue to be a common concern of mankind undoubtedly indicates a certain interest of all states in the resolution of that issue. However, only a limited number of the most important values and rights of the international community have been recognised as being of an erga omnes character, such as of the prohibition of genocide, torture, and slavery. The enumeration of these crimes already demonstrates that the notion of erga omnes obligations is limited to the most serious offences facing humankind. Therefore, the question arises concerning whether preventing the impacts of climate change can be considered a norm of a peremptory character. If states do not immediately reduce their GHG emissions, climate change will have devastating impacts on human beings and the environment. It will not be just a small number of states affected, but rather a great part of the international community.289 Former Vice-President of the ICJ Christopher Weeramantry has called environmental damage a problem ‘with an erga omnes connotation’.290 However, the importance of CCM ha not yet been recognised by every state, although an important part of the international community has made their commitments under the Paris Agreement. Accordingly, it has been argued that these duties of state parties apply erga omnes partes and thus constitute peremptory norms between the member states.291 This argument holds true because parties of the Paris Agreement did not solely accept obligations towards their own citizens, but also between other states that participate in the agreement. Therefore, each state party has a legal interest in other parties’ compliance with the commitments. Furthermore, the agreement rests upon mutual trust in the sense that state parties might have made their commitments because other states had accepted equal emissions cuts. Nevertheless, despite the impending dangers of climate change, international law does not yet include an erga omnes obligation to mitigate climate change, a universal duty to take CCM measures owed towards the international community of states as a whole. The future will reveal whether such a norm might emerge. However, bearing the dangers associated with climate change in mind, mitigating its most horrendous impacts should be provisionally treated as an obligation erga omnes.

288 Kirgis (n. 285), 526. 289 Compare also Richard S J Tol and Roda Verheyen, ‘State Responsibility and Compensation for Climate Change Damages – a Legal and Economic Assessment’ (2004) 32 Energy Policy 1109, 1115. 290 Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Separate Opinion of Vice-President Weeramantry) (1997), ICJ Rep 88. 291 Christina Voigt, ‘On the Paris Agreement’s Imminent Entry into Force (Part II of II)’ (12 October 2016) accessed 1 December 2019.

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2. Remarks In the context of climate change, states generally have several obligations under international human rights law. In this regard, a distinction should be made between obligations of states towards their own population and obligations of states towards other populations. With regard to humanitarian catastrophes, states are first required to reduce activities that directly contribute to climate change, thereby also increasing the risk of natural disasters. If they are afflicted by a disaster, affected countries are obligated to provide disaster relief and humanitarian assistance to their populations to prevent violations of their rights. If a state is unable to provide access to food for its population, it is then obligated to seek external assistance. A responsibility of other states to provide aid to victims of natural disasters cannot be based on the extraterritorial application of human rights. The extraterritorial extension of the environmental human rights jurisprudence is only possible if persons are under the effective control of a state party, which is hard to argue in terms of persons being affected by a natural disaster. In its recent November 2017 judgement, the Inter-American Court of Human Rights (IACtHR) was the first court to recognise a new factor for the extraterritorial application of human rights: that of causality.292 According to the judgement, a person is under the effective control of a state party if there is a causal link between an incident in the territory of a state and the violation of a right of a person outside its territory.293 However, this judgement once again concerned activities in the territory of a state, with extraterritorial effects (transboundary harm). Therefore, this cannot be applied to a global threat like climate change because a natural disaster, even if one might establish a link to climate change, does not constitute an activity in the territory of a state. The international duty of cooperation seems to be a more viable basis for establishing obligations of states, although it remains unclear which duties states exactly have. However, IRL is not applicable to persons fleeing natural disasters because it only applies to persons fleeing persecution or violence committed by human actors. International human rights law further stipulates a duty of states to mitigate climate change towards their own populations, if the impacts of climate change were to undermine human rights. In October 2018, a landmark decision was confirmed by an appeals court in The Hague, placing an on the Dutch Government to reduce GHG emissions by at least 25 %, measured against 1990 levels by 2020. The judges derived such a duty 292 The Environment and Human Rights (Advisory Opinion) [2017], OC-23/17, Series A No 23, paras. 95, 101–102. 293 ibid., paras. 101–102.

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from Articles 2 and 8 ECHR. It remains to be seen whether the ECtHR will follow this line of argumentation in a corresponding case. Other states are not obligated to participate in international climate agreements that aim at mitigating climate change due to the freedom of contract. A human right to a healthy environment is currently non-existent internationally. However, recognising such a right would constitute a strong political signal by emphasising the importance of protecting the environment for current and future generations. Given that over 100 states have already included a right to a healthy environment in their national constitutions,294 the international community is already aware of the necessity to preserve the natural environment. Although environmental protection is already referred to in Article 12(2) of the ICESCR, a stand-alone right to a healthy environment would offer additional protection to citizens of all states. Individuals would be able to file complaints with the UNHRC about the violation of the right and responsible states could be held accountable. Furthermore, states and other actors would be disincentivised from supporting industries that pollute the environment by emitting GHGs. Generally, recognising a human right to a healthy environment is a worthwhile goal. Nevertheless, such a right is not currently existent, and time will reveal whether a human right to a healthy environment emerges.

III. Conclusion In summation, although often underestimated, climate change undoubtedly has implications for the realisation of a broad range of human rights. The rights to life, adequate food, water, health, and to adequate housing are the most obvious examples of rights that might be endangered. Because some people will no longer be able to freely choose their places of residence, particularly inhabitants of SIDS, their right to selfdetermination will equally be affected. However, there are several obstacles to proving that a violation of human rights has in fact taken place. This would require a causal link between an act or omission of a state party and the specific violation. Such a link is difficult to prove with regard to the impacts of climate change because a multitude of both state and non-state actors, emit GHGs, thereby contributing to global warming. Thus, a situation of shared responsibility emerges in which multiple actors and natural influences are responsible for the impacts of climate change, but act independently, and difficulties arise over how to measure each state’s degree of responsibility. Existing international law stipulates that the responsibility of each state is to be invoked in relation to the act in cases where several states are involved.295 The only possibility of invoking 294 See n. 262. 295 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001), UN Doc. A/56/10, Article 47(1).

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III. Conclusion

the responsibility of each state for climate change would be to determine their shares of global GHG emissions. Nevertheless, although the largest emitters of GHGs are ar­ guably more responsible for climate change than others, one cannot attribute the fate of a person affected by a natural disaster directly to the GHG emissions in a particular state. A potential connection would be a failure to warn the population if such a misconduct can be proven. However, although it is problematic to characterise the effects of climate change on people as human rights violations in a strict legal sense, international human rights law imposes some related duties on states and the international community. It has also become apparent that international human rights law alone is not sufficient to guarantee people adequate protection from the impacts of climate change. Humanitarian catastrophes cause a large number of infrastructure and property damage, which require extensive rebuilding efforts in the aftermath of the disaster in addition to ad hoc humanitarian assistance. Therefore, this thesis intends to analyse whether the concept of R2P and its components ‘prevent, react, rebuild’ constitute an effective means of assuring protection from the effects of climate change.

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C.

The responsibility to protect

The concept of R2P has so far been accepted by the international community as being applicable to the worst violations of human rights. However, it could constitute a global solution to overcoming the challenges posed by climate change because R2P goes beyond addressing a particular state by requiring the inclusion of the international community. The following section provides a general overview of the concept, its history, its theoretical foundations, and its legal nature.

I. History The concept of R2P was developed to address the problem of the international community’s reaction to gross human rights violations in sovereign states.296 Governments which use military means against their own population have often opposed outside interference, citing their state sovereignty.297 In the past, the international community has faced a formidable dilemma when reacting to humanitarian disasters. Inaction in response to the Rwanda genocide in 1994298 and the North Atlantic Treaty Organisation’s (NATO) unauthorised action in Kosovo in 1999299 have demonstrated the complexities of international responses to gross human rights abuses.300 296 International Commission on Intervention and State Sovereignty (n. 13), para. 1.7; Charlotte Kreuter-Kirchhof, ‘Völkerrechtliche Schutzverantwortung bei elementaren Menschenrechtsverletzungen: Die Responsibility to Protect als Verantwortungsstruktur’ (2010) 48(3) AVR 338, 339; Dederer (n. 105), 158. 297 See Kofi Annan, ‘Nobel Lecture’ (Oslo, 10 December 2001) accessed 1 December 2019; ‘The sovereignty of states must no longer be used as a shield for gross violations of human rights’; Robyn Eckersley, The Green State: Rethinking Democracy and Sovereignty (The MIT Press 2004), 226; Kreuter-Kirchhof (n. 296), 339; Manuel Fröhlich, ‘Der Fall Libyen und die Norm der Schutzverantwortung – The Case of Libya and the Norm of Responsibility to Protect’ (2011) 21(1) Zeitschrift für Politikwissenschaft 135, 137; W. A Knight, ‘The Development of the Responsibility to Protect – From Evolving Norm to Practice’ (2011) 3(1) Global Responsibility to Protect 3, 5; Susan Breau, The Responsibility to Protect in International Law: An Emerging Paradigm Shift (Routledge 2016), 25. See also Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101(1) AJIL 99, 112; Edward Luck, ‘Der verantwortliche Souverän und die Schutzverantwortung’ [2008] VN 51, 52. 298 The genocide in Rwanda was a conflict between the Hutu and Tutsi populations in Rwanda. In the span of 100 days, approximately 800,000 Tutsis were killed. See British Broadcasting Corporation, ‘Rwanda: How the Genocide Happened’ (18 December 2008) accessed 1 December 2019. 299 NATO conducted bombing raids over several months on Kosovo to protect Kosovar Albanians from various atrocities committed by Serbian forces. See Ramesh Thakur, ‘In Defence of the Responsibility to Protect’ (2003) 7(3) The International Journal of Human Rights 160, 167; Matthias Wenzel, Schutzverantwortung im Völkerrecht (Verlag Dr. Kovac 2010), 3. 300 Gareth Evans and Mohamed Sahnoun, ‘The Responsibility to Protect’ (2002) 81(6) Foreign Affairs 99, 100; Spencer Zifcak, ‘The Responsibility to Protect’ in Malcolm D Evans (ed), International Law (4th edn. OUP 2014), 514.

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These events brought Kofi Annan, former UN Secretary-General, to ask the crucial question: […] if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebenica – to gross and systematic violations of human rights that affect every precept of our common humanity?301

1.

International Commission on Intervention and State Sovereignty

A possible answer to this question was given by then Canadian Prime Minister Jean Chrétien by announcing the establishment of the ICISS at the UN Millennium Summit in September 2000. The commission was composed of two chairmen, Gareth Evans and Mohamed Sahnoun,302 and ten other diplomats, statesmen, and academics from every continent.303 In December 2001, the ICISS launched its report entitled ‘The Responsibility to Protect’.304 To distinguish R2P from the highly controversial concept of ‘humanitarian intervention’,305 the ICISS avoids using this term and refers to ‘intervention’ instead.306 Taking the victims’ perspective rather than the intervening parties’, the ICISS report focuses on the ‘responsibility to protect’ rather than the ‘right

301 ‘We the Peoples: The Role of the United Nations in the Twenty-First Century, Report of the Secretary-General’ (27 March 2000), UN Doc. A/54/2000, para. 217. 302 Gareth Evans is the former Foreign Minister of Australia and Mohamed Sahnoun is a former senior diplomat from Algeria and a former Special Adviser to the UN Secretary-General on Africa. 303 Árpád Prandler, ‘The Concept of ‘Responsibility to Protect’ as an Emerging Norm Versus ‘Humanitarian Intervention’’ in Isabelle Buffard and others (eds), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Brill 2008), 713. 304 International Commission on Intervention and State Sovereignty (n. 13). 305 The notion of ‘humanitarian intervention’ refers to the use of military force by individual states against another state that aims at ending human-rights violations being perpetrated by the state against its population. Contradicting the fundamental principle of state sovereignty, the legality of interventions for human protection purposes without prior Security Council authorisation is highly controversial. See Arnauld, Völkerrecht (n. 112), para. 1139; Shaw (n. 112), 881–882. For discussions on the pros and cons of humanitarian interventions see Jean-Pierre L Fonteyne, ‘The Customary International Law Doctrine of Humanitarian Intervention’ (1974) 4 CalWIntlLJ 203, 232; Simon Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (OUP 2001); Ian Brownlie, ‘“International Law and the Use of Force by States” Revisited’ (2002) 1(1) CJIL 1, 12; J. L Holzgrefe, ‘The Humanitarian Intervention Debate’ in J. L Holzgrefe and Robert L Keohane (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (CUP 2003); Thomas G Weiss, Humanitarian Intervention (Polity Press 2012); Roland Paris, ‘The ‘Responsibility to Protect’ and the Structural Problems of Preventive Humanitarian Intervention’ (2014) 21(5) International Peacekeeping 569. 306 International Commission on Intervention and State Sovereignty (n. 13), para. 1.39; Evans and Sahnoun (n. 300), 101; Andreas von Arnauld, ‘Souveränität und Responsibility to Protect’ (2009) 84(1) FW 11, 33.

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to intervene’.307 Embracing the responsibility to react, the responsibility to prevent, and the responsibility to rebuild, Evans and Sahnoun have called R2P an ‘umbrella concept’.308 The overall purpose of response under R2P should be to ensure that the reasons for the intervention are eliminated and do not repeat themselves.309 The responsibility to prevent conflict was determined to be the most important aspect of R2P.310 Two dimensions can be distinguished in terms of conflict prevention: eliminating the root causes of conflict and instability such as poverty and political repression, and removing the more immediate causes of disputes such as acts of rebellion against the government.311 The ICISS proposes a toolbox of political, diplomatic, economic, and legal preventative measures, including the consultation of the UN Secretary-General to reconcile the opposing parties, positive or negative inducements, and offers of mediation or arbitration.312 The ICISS recognises three conditions for successful prevention, namely early warning, an understanding of potential policy measures available to attenuate the situation, and the political will to apply these measures.313 The overall aim of prevention should be to reduce or at best to eliminate the need for intervention.314 Effectively preventing conflicts requires disparate actors to work together, namely states, the UN and its specialised agencies, international financial institutions, regional organisations, non-governmental organisations (NGOs), religious groups, the business community, the media, and scientific, professional and educational communities.315 Generally speaking, the shift from a ‘culture of reaction’ to a ‘culture of prevention’ is required.316 The responsibility to react comes into action when all preventive measures have failed. In this regard, R2P can imply both military and non-military actions. Because military

307 International Commission on Intervention and State Sovereignty (n. 13), para. 2.29; Evans and Sahnoun (n. 300), 101; Ramesh Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (2002) 33(3) Security Dialogue 323, 328. 308 Evans and Sahnoun (n. 300), 101. 309 International Commission on Intervention and State Sovereignty (n. 13), para. 5.3. 310 Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 332; Christopher C Joyner, ‘The Responsibility to Protect: Humanitarian Concern and the Lawfulness of Armed Intervention’ (2007) 47(3) Virginia Journal of International Law 693, 709; Sheri P Rosenberg, ‘Responsibility to Protect: A Framework for Prevention’ (2009) 1 Global Responsibility to Protect 442. 311 Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 332. 312 International Commission on Intervention and State Sovereignty (n. 13), para. 3.26 – 3.28. 313 ibid., para. 3.9. 314 ibid., para. 3.4. 315 ibid., para. 3.36. 316 ibid., para. 3.42.

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intervention for humanitarian purposes should only be an extraordinary last resort,317 non-military measures such as arms embargoes and the cessation of military cooperation must be considered first.318 In this regard, the principle of non-intervention in the internal affairs of states must be respected.319 However, military intervention may be inevitable in extreme cases.320 The ICISS lists six ‘precautionary principles’ for military intervention, namely right authority, just cause, right intention, last resort, proportionality, and reasonable prospects.321 At first sight, these principles seem to bear a striking resemblance to the ‘just war’ (bellum iustum) doctrine of the ancient world and the Early Middle Ages. Just war was the principle used to justify warfare, despite the moral and religious thresholds that most societies had for military intervention.322 Because religious beliefs played a significant role shaping ancient societies’ views of reality, warfare could also be justified to soothe the gods.323 According to Plato and several ancient philosophers, a war for a just cause was permitted.324 Marcus Tullius Cicero, a Roman politician, philosopher, and writer, also advanced the development of the just war doctrine. His major works, ‘De officiis’ and ‘De republica’, worked out both formal (negotiations had to precede the declaration of war, a priest had to give his consent, and a formal declaration of war was required) and substantive requirements (self-defence, assistance for others, reparations) of a just war.325 In the 4th and 5th century, the doctrine was accepted by Christian dogma.326 It was Augustine of Hippo (354–430 A. D.) who developed a new just war approach from the viewpoint of Christian theology.327

317 Evans and Sahnoun (n. 300), 103. 318 Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 332. 319 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits, Judgement) (1986), ICJ Rep 14, para. 205; Wolff Heintschel von Heinegg, ‘§ 51. Vom ius ad bellum zum ius contra bellum’ in Knut Ipsen (ed), Völkerrecht (6th edn. C. H. Beck 2014), 1075, para. 47; von Arnauld, Völkerrecht (n. 112), para. 349. 320 International Commission on Intervention and State Sovereignty (n. 13), para. 4.10. 321 ibid., para. 4.16. 322 Peter Hilpold, ‘R2P and Humanitarian Intervention in a Historical Perspective’ in Peter Hilpold (ed), The Responsibility to Protect (R2P) – A new Paradigm of International Law? (Koninklijke Brill NV 2015), 63. 323 ibid. 324 Plato and Francis Macdonald Cornford, The Republic of Plato (OUP 1945). 325 Marcus T Cicero and Harry G Edinger, De officiis/On duties (Bobbs-Merrill 1974); Marcus T Cicero and James EG Zetzel, De re publica: selections (CUP 1995); Hilpold, ‘R2P and Humanitarian Intervention in a Historical Perspective’ (n. 322), 65. 326 Hilpold, ‘R2P and Humanitarian Intervention in a Historical Perspective’ (n. 322), 66. 327 ibid.

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Although Saint Augustine did not elaborate on the specific conditions under which a war could be just, the following requirements could be deduced from his writings, particularly from ‘Contra Faustum’: i) A just war has to be authorised by a legitimate authority (typically the Pope as the highest authority of the Christian Church), ii) a just cause has to be present and iii) the war has to be carried out with the right intention.328 Nine hundred years later, St. Thomas Aquinas (1225–74), an Italian philosopher, theologian and jurist, accepted Augustine’s three conditions necessary for a war to be just (legitimate authority, just cause, and right intention) and added the requirement of proportionality.329 The doctrine was then taken up by Francisco de Vitoria (1483 – 1546), a Spanish Renaissance Roman Catholic philosopher, theologian and jurist who expounded some rules of warfare: requiring a just cause and a formal declaration of war,330 and that the degree of punishment must be proportional to the offense.331 328 ‘A great deal depends on the causes for which men undertake wars, and on the authority they have for doing so; for the natural order which seeks the peace of mankind, ordains that the monarch should have the power of undertaking war if he thinks it advisable, and that the soldiers should perform their military duties in behalf of the peace and safety of the community. When war is undertaken in obedience to God, who would rebuke, or humble, or crush the pride of man, it must be allowed to be a righteous war; for even the wars which arise from human passion cannot harm the eternal well-being of God, nor even hurt His saints; for in the trial of their patience, and the chastening of their spirit, and in bearing fatherly correction, they are rather benefited than injured. No one can have any power against them but what is given him from above. For there is no power but of God (Romans 13:1), who either orders or permits. Since, therefore, a righteous man, serving it may be under an ungodly king, may do the duty belonging to his position in the State in fighting by the order of his sovereign—for in some cases it is plainly the will of God that he should fight, and in others, where this is not so plain, it may be an unrighteous command on the part of the king, while the soldier is innocent, because his position makes obedience a duty,— how much more must the man be blameless who carries on war on the authority of God, of whom every one who serves Him knows that He can never require what is wrong?’ See St. Augustine, Contra Faustum, translated by Kevin Knight (ed), Translation of ‘Contra Faustum’ by St. Augustine (2009). Compare also Hilpold, ‘R2P and Humanitarian Intervention in a Historical Perspective’ (n. 322), 66 f. 329 ‘Manly exercises in warlike feats of arms are not all forbidden, but those which are inordinate and perilous, and end in slaying or plundering. On olden times warlike exercises presented no such danger, and hence they were called ‘exercises of arms’ or ‘bloodless wars’, as Jerome states in an epistle.’ See Kevin Knight (ed), The Summa Theologica of St. Thomas Aquinas (2008), Article 1, Reply to Objection 4. 330 ‘Difference of religion is not a cause of just war. Extension of empire is not a just cause of war. Neither the personal glory of the prince nor any other advantage to him is a just cause of war. There is a single and only just cause for commencing a war, namely, a wrong received.’ See de Francisco de Vitoria, De Indis et De Jure Belli (1532), II.5, 10–13. 331 ibid., II.14.

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Finally, the Catholic Church developed four so-called ‘strict conditions for legitimate defence by military force’: i) The damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain. ii) All other means of putting an end to the conflict must have been confirmed to be impractical or ineffective. iii) There must be serious prospects of success. iv) The use of arms must not produce evils and disorders graver than the evil to be eliminated.332 Although the precautionary principles as elaborated by the ICISS bear a striking resemblance to the just war doctrine, an important difference remains. A multilateral body, namely the UNSC, rather than a monarch, the Pope, or a state has the power to interprete and apply the principles of R2P.333 The question of who yields the right authority to exercise R2P is discussed in a separate chapter of the report. With regard to Article 2(4) of the UN Charter, which bans the threat or the use of force in international relations, the first criterion is of crucial importance. According to the ICISS, ‘there is no better or more appropriate body than the Security Council to deal with military intervention issues for human protection purposes.’334 Article 24(1) of the UN Charter prescribes the Security Council’s primary responsibility to be the maintenance of international peace and security. In terms of authorising the use of force to protect civilians, the UNSC represent the ‘first port of call’.335 Under the terms of Article 42 of the UN Charter, the Security Council may mandate military measures to maintain or restore international peace and security if nonmilitary measures have proven or would prove to be inadequate. The ICISS proposes two alternatives for situations in which a veto from one of the five permanent members of the Security Council is used. The General Assembly may make recommendations in an Emergency Special Session corresponding to the Uniting for Peace procedure.336 According to the Uniting for Peace Resolution,337 the General Assembly may consider a matter in cases where the Security Council fails to exercise its primary responsibility

332 Catholic Church, ‘Catechism of the Catholic Church’ (1992) accessed 1 December 2019. 333 Fröhlich (n. 297), 139. 334 International Commission on Intervention and State Sovereignty (n. 13), para. 6.14. 335 Evans and Sahnoun (n. 300), 106. 336 Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 336. 337 ‘Uniting for Peace’ (3 November 1950), UN Doc. A/RES/5/377.

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after a veto is used.338 Additionally, Chapter VIII of the Charter recognises the power of regional or sub-regional organisations to act within their area of jurisdiction, with prior or, in exceptional cases, subsequent authorisation by the Security Council.339 The second precautionary principle is the element of just cause. A just cause is present in cases of large-scale loss of life or ethnic cleansing,340 such as when genocide,341 crimes against humanity,342 or overwhelming natural or environmental catastrophes have occurred, and the state concerned is either unwilling or unable to cope.343 Thirdly, the intervention should be executed with the right intention, which means that its overall aim must be to halt or avert human suffering.344 An intervention performed for human protection should invariably focus solely on protecting those whose human rights have been violated. Therefore, intervening parties are required to withdraw their troops immediately after mass atrocities have ended.345 However, regarding the risks and costs associated with military action, the intervener might also have other strategic and political motives. If these motives do not undermine the overall result of the intervention, the military intervention is consistent with R2P.346 The fourth criterion is that of last resort. It demands that every option for a peaceful solution to a crisis must be proven inadequate, or there must be reasonable grounds for believing that such a measure would fail if attempted.347 Furthermore, military intervention must be proportional in terms of scale, duration, and intensity. To comply with this fifth criterion, measures must be limited to the minimum magnitude necessary to achieve the defined objective of protecting people.348

338 Malcolm N. Shaw (n. 112), 974. 339 Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 337. 340 ibid., 332. 341 Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948), UN Doc. A/Res/260 (III), 78 UNTS 277. 342 Rome Statute of the International Criminal Court (17 July 1998), UN Doc. A/CONF. 183/9, 2187 UNTS 90. 343 International Commission on Intervention and State Sovereignty (n. 13), para. 4.20. 344 Evans and Sahnoun (n. 300), 104; Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 332–333. 345 ibid., 331. 346 Jennifer M Welsh, Carolin Thielking and S. N Macfarlane, ‘The responsibility to protect: Assessing the report of the International Commission on Intervention and State Sovereignty’ (2002) 57(4) International Journal 489, 503. 347 Evans and Sahnoun (n. 300), 105; Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 333. 348 Evans and Sahnoun (n. 300), 105.

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Finally, military intervention should have a reasonable chance of success in halting or averting suffering, in which the consequences of action are unlikely to be worse than the consequences of inaction.349 The third element of R2P, the responsibility to rebuild, focuses on the responsibility to prioritise post-conflict reconstruction, which may include peace building measures, or the promotion of good governance and sustainable development.350 Another crucial post-conflict responsibility is to assist states with establishing a functioning judicial system.351 With regard to the overall aim of R2P, which is to establish long-lasting peace in a conflict area, the responsibility to rebuild is of crucial importance. If mass atrocities such as ethnic cleansing and genocide are committed again a few months after a military intervention, the efficacy of the engagement should be seriously called into question.352 The seventh chapter of the report deals with the operational dimension. In this regard, a clearly defined mandate for the mission is necessary.353 Furthermore, the ICISS admonishes the UN Secretary-General to develop a ‘Doctrine for Human Protection Operations’ that embodies the operational principles laid out in this chapter, as well as the guidelines concerning the responsibility to react.354 The last chapter of the report gives an overview of the steps necessary to enhance the effectiveness of R2P. The ICISS stresses the need to transform words of the report into deeds and to specify substantive commitments based on the report.355 Hence, the commission requests that the General Assembly adopts a draft declaratory resolution embodying the basic principles of R2P and more precisely to define the foundations and the scope of the concept. The ICISS attaches vital significance to four basic elements: (i) the affirmation of the idea of sovereignty-as-responsibility; (ii) the affirmation of the threefold responsibility of the international community; (iii) the clarification of the scope of R2P; (iv) and the adoption of the precautionary principles to be applied when using military force for human protection purposes.356 349 Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 333. 350 International Commission on Intervention and State Sovereignty (n. 13), para. 5.1. 351 ibid., para. 5.13. 352 Christopher Verlage, Responsibility to Protect (Mohr Siebeck 2009), 32. 353 International Commission on Intervention and State Sovereignty (n. 13), para. 7.15. 354 ibid., para. 7.50. 355 ibid., para. 8.27. 356 ibid., para. 8.28.

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However, the Outcome document published in the aftermath of the 2005 World Summit cannot be said to measure up to these expectations except for the clarification of the scope of R2P.357 While the primary responsibility of each state is articulated in a clear and coherent manner, the language of paragraph 139 that addresses the international community’s residual responsibility to embrace R2P is vague and imprecise.358 This dilution was necessary to reach agreement between the nearly 200 UN member states.359 Nevertheless, considering that the 9/11 terrorist attacks on the World Trade Center shook the international legal order only one day after the publication of the ICISS report, the inclusion of R2P into the Outcome document is tantamount to a miracle.360

2.

High-Level Panel on Threats, Challenges, and Change

The High-Level Panel on Threats, Challenges, and Change is an expert committee established by Kofi Annan in the aftermath of the American invasion in Iraq in December 2003.361 Its report entitled ‘A More Secure World: Our Shared Responsibility’ provides an analysis of current and future threats to peace and security and provides recommendations for improving the UN’s responses to these challenges.362 The High-Level Panel endorses R2P as an emerging norm exercisable by the UNSC in cases of genocide and other large-scale killing, ethnic cleansing, and serious violations of IHL.363 R2P is referred to in Chapter IX, which concerns the legality of the use of military force for the prevention and removal of threats to peace. Thus, R2P is associated with humanitarian intervention,364 although Kofi Annan had always tried to avoid this association.365 The ICISS report also stressed the importance of the preventive dimension, 357 The 2005 World Summit brought together over 170 heads of state and government to discuss questions relating to development, security, human rights, and UN reform. R2P was also briefly considered. According to the Outcome document, R2P should apply to genocide, war crimes, ethnic cleansing, and crimes against humanity. See ‘2005 World Summit Outcome’ (n. 106), para. 138–139. 358 Compare, for a more detailed analysis, chapter C. I. 3. 359 Alex J Bellamy, ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit’ (2006) 20(2) EIA 143, 153; Luke Glanville, ‘The Responsibility to Protect Beyond Borders’ (2012) 12(1) HRLRev 1, 11. 360 Peter Hilpold, ‘From Humanitarian Intervention to the Responsibility to Protect’ in Peter Hilpold (ed), The Responsibility to Protect (R2P) – A new Paradigm of International Law? (Koninklijke Brill NV 2015), 11 f. 361 Ingo Winkelmann, ‘Responsibility to Protect’ (2010) MPEPIL accessed 1 December 2019, para. 7. 362 Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change (2 December 2004), UN Doc. A/59/565. 363 ibid., para. 203. 364 Alex J Bellamy, ‘Realizing the Responsibility to Protect’ (2009) 10(2) ISP 111, 117. 365 In his own report, Kofi Annan separates the remarks on R2P from his proposals concerning the use of military force. See Report of the Secretary-General. In Larger Freedom: Towards Development, Security and Human Rights for All (21 March 2005), UN Doc. A/59/2005, para. 122–126, 135.

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while the High-Level Panel only briefly touches on the responsibility to prevent and rather emphasises the collective responsibility to take military action. Apart from this, the panel mostly confirmed the stance taken by the ICISS, particularly in terms of justifying the use of military force. It proposes the employment of criteria similar to those of the ICISS, namely seriousness of threat, proper purpose, last resort, proportional means, and balance of consequences.366 However, the sixth ICISS criterion, the right authority, is missing. One possible explanation could be that the panel assumes the exclusive authority of the Security Council to act on the responsibility to react without any doubt.367 Furthermore, the High-Level Panel report also emphasised that R2P is ‘exercisable by the UNSC’, which once again reinforces this assumption.368

3.

World Summit Outcome document

Bringing together the heads of state of most of the then 191 (now 193) UN members, the 2005 World Summit (High-Level Plenary Meeting of the 60th session of the UN General Assembly), convened from September 14th – 16th, 2005 in New York City, is considered to have been the largest gathering of heads of state and government in history.369 At the summit, member states agreed on a more restricted version of R2P. The World Summit Outcome document addresses R2P in paragraphs 138 and 139. It acknowledges that: 138. 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. The international community should, as appropriate, encourage and help states to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. 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 366 Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change (n. 362), para. 207. 367 Von Arnauld, ‘Souveränität und Responsibility to Protect’ (n. 306), 23. 368 Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change (n. 362), para. 203. 369 Edward C Luck, ‘The United Nations and the Responsibility to Protect’ (Policy Analysis Brief, 2008), 3.

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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, bearing 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.370 Thus, governments unanimously affirmed their responsibility to protect their populations from war crimes, genocide, crimes against humanity and ethnic cleansing.371 Compared to the ICISS report that referred to ‘large-scale loss of life or large-scale ethnic cleansing’,372 the Outcome document limits the scope of R2P to the four crimes previously mentioned. It also alludes to the responsibility to prevent by asserting that ‘this responsibility entails the prevention of such crimes.’373 The Outcome document also refers to the responsibility of the international community. In contrast to the ICISS report which requires a secondary responsibility on the part of the international community to come into effect if a state fails to fulfil its protection duties, the Outcome document alludes to a complementary responsibility.374 This responsibility is exercised in addition to the responsibility of each state.375 Potential measures include appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter or, as a last resort, military measures in accordance with Chapter VII.376 The Outcome document also emphasises the General Assembly’s duty to further develop R2P.377 Nevertheless, the Outcome document is referred to as constituting a ‘breakthrough many had not thought possible’.378 It demonstrates the existence of a meaningful degree of international consensus on the concept in terms of both the primary responsibility of each state and the secondary collective responsibility of the international community. However, it has also become apparent that further work was necessary to implement the principle and to establish clear suggestions and guidelines for action based on R2P. 370 ‘2005 World Summit Outcome’ (n. 106), para. 138–139. 371 ibid., para. 138. 372 International Commission on Intervention and State Sovereignty (n. 13), para. 4.19. 373 ‘2005 World Summit Outcome’ (n. 106), para. 138. 374 ibid., para. 139. Compare also Kreuter-Kirchhof (n. 296), 348. 375 ibid., 348. 376 ‘2005 World Summit Outcome’ (n. 106), para. 139. 377 ibid. 378 Hilpold, ‘From Humanitarian Intervention to the Responsibility to Protect’ (n. 360), 2.

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4.

Annual reports of the Secretary-General

Since 2009, the UN Secretary-General has published annual thematic reports on R2P, which detail its current challenges and developments. The first eights reports were written by Ban Ki-moon, with António Guterres being responsible for the most recent report. In 2009, Secretary-General Ban Ki-moon published his report on the implementation of R2P, claiming the development of a three-pillar strategy as its most important achievement.379 The first pillar underscores the responsibility of each state to protect its population from genocide, war crimes, crimes against humanity, and ethnic cleansing, while the second pillar relates to international assistance and capacity-building.380 During the 2005 World Summit, the international community has declared its commitment to encouraging states to fulfil their obligations under the first pillar.381 Pillar three emphasises the ‘timely and decisive response’ of the international community in cases in which a government has manifestly failed to fulfil its protection duties.382 In this regard, the Secretary-General proposes a broad range of possible measures, including peaceful measures under Chapter VI of the Charter, coercive ones under Chapter VII, and the collaboration with regional and sub-regional organisations under Chapter VIII.383 These measures may be taken on a case-by-case basis, so there is no strict sequencing between the three pillars.384 The Secretary-General requests that the General Assembly ‘as the world’s premier inclusive political forum’ clarifies the concept of R2P and determines a strategy for its implementation.385 The 2010–2014 reports on R2P relate to, inter alia, early warning mechanisms, the role of regional and sub-regional arrangements, and state responsibility and prevention. All these reports attempted to further develop the three-pillar strategy proposed by Ban Ki-moon in 2009. The report entitled ‘A Vital and Enduring Commitment: Implementing the Responsibility to Protect’386 was released on July 13th, 2015, shortly before the 10th anniversary of the World Summit Outcome document. It evaluated the progress of the implementation of R2P in the past ten years and identified remaining challenges and shortcom379 Report of the Secretary-General. Implementing the Responsibility to Protect (12 January 2009), UN Doc. A/63/677, para. 11. 380 ibid., para. 11 (a). 381 ‘2005 World Summit Outcome’ (n. 105), para. 139. 382 Report of the Secretary-General. Implementing the Responsibility to Protect’ (n. 379), para. 10(c). 383 ibid. 384 ibid., para. 12. 385 ibid., paras. 69, 71. 386 Report of the Secretary-General. A Vital and Enduring Commitment: Implementing the Responsibility to Protect (13 July 2015), UN Doc. A/69/981.

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ings. In terms of the first pillar (protection responsibilities of each state), the SecretaryGeneral noted with encouragement that several states had assented to the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG),387 the Geneva Conventions and their Additional Protocols, and other relevant conventions.388 However, given that numerous states are not yet parties to these conventions or have failed to fulfil their respective obligations, there are still critical shortcomings in this regard.389 Furthermore, states have now begun to support one another by identifying and mitigating the risk factors for atrocity crimes under the second pillar (international assistance and capacity-building),390 even if their respective capacities could still be improved.391 In terms of the third pillar (timely and decisive response), the report argues for the necessity of changing the perception of this pillar from focusing solely on the use of force.392 The report concludes with identifying six core priorities in the decade ahead, namely (i) demonstrating political commitment; (ii) investing in atrocity crime prevention; (iii) ensuring more timely and decisive response; (iv) preventing the recurrence of atrocity crimes; (v) enhancing regional action; (vi) and strengthening peer networks.393 The 2016 report on R2P was entitled ‘Mobilizing Collective Action: The Next Decade of the Responsibility to Protect’, and identifies current barriers to mobilising collective action, and potential solutions to overcome these obstacles in the next decade.394

387 Convention on the Prevention and Punishment of the Crime of Genocide’ (n. 341). 388 Report of the Secretary-General. A Vital and Enduring Commitment: Implementing the Responsibility to Protect (n. 386), para. 19. 389 ibid., para. 20. 390 ibid., para. 26. 391 ibid., para. 32. 392 ibid., para. 38. 393 ibid., para. 54–69. 394 Report of the Secretary-General. Mobilizing Collective Action: The Next Decade of the Responsibility to Protect (22 July 2016), UN Doc. A/70/999. Compare also International Coalition for the Responsibility to Protect, ‘Key Developments on the Responsibility to Protect at the United Nations from 2005–2014’ accessed 1 December 2019.

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The 2017 report on ‘Implementing the Responsibility to Protect: Accountability for Prevention’ was released in August 2017.395 It emphasised the need to strengthen accountability for the implementation of R2P for the prevention of mass atrocities, and thereby addresses UN member states, intergovernmental bodies, and the UN System. All in all, the reports constitute not only important milestones for the development of R2P, but they also measure the progress that has been achieved in implementing the concept. While the first report of 2009 was on the subject of general proposals to implement R2P based on a three-pillar strategy, the subsequent reports specialise on a particular aspect of R2P such as early warning mechanisms or the role of regional and subregional arrangements or assess the previous work on the concept. Several reports also contain proposals for further developing R2P, and the most recent report even stresses the need to strengthen accountability for the implementation of R2P. Thus, these documents mirror the development of R2P: from a vague and unclear principle to a concrete concept that may, if additional work is accomplished for its implementation, entail the accountability of states that fail to uphold their responsibilities.

5.

Security Council resolutions

The Security Council has also discussed R2P in a number of resolutions, emphasising that R2P has begun to gain currency in global debates on international peace and security. Resolution 1674 on the Protection of Civilians in Armed Conflict was the first Security Council Resolution to explicitly recognise the concept of R2P as defined by the UN General Assembly at the 2005 World Summit. Although the Security Council did not make any substantive statements with regard to the concept, it reaffirmed the provisions of paragraphs 138 and 139 of the World Summit Outcome document of 2005 on the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.396 The international community’s commitment to R2P was first tested on the practical level during the 2011 Libyan revolt.397 In Libya, insurgents and the government forces of Muammar al-Gaddafi have been waging a civil war since February 2011. This conflict was part of the Arab Spring, a wave of peaceful and violent demonstrations, public unrest, and foreign interventions in the Middle East. The revolts began in Tunisia in

395 ‘Implementing the Responsibility to Protect: Accountability for Prevention, Report of the SecretaryGeneral’ (10 August 2017), A/71/1016 – S/2017/556. 396 SC Res. 1674 (28 April 2006), UN Doc. S/RES/1674, para. 4. 397 Hilpold, ‘From Humanitarian Intervention to the Responsibility to Protect’ (n. 360), 2.

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December 2010 and spread to Libya, Syria, Yemen, Egypt, and Iraq, and other Middle Eastern states.398 Resolutions 1970399 and 1973400 on Libya were the first to refer to R2P in the context of action taken under Chapter VII of the UN Charter.401 a)

Resolution 1970

Resolution 1970 of February 26th, 2011 already contained elements of R2P. By stating that the situation in Libya may amount to crimes against humanity, the Security Council alluded to the scope of R2P as defined by the General Assembly.402 It evoked ‘the Libyan authorities’ responsibility to protect its population’ and thereby made express reference to the primary responsibility of the Libyan government.403 The Security Council mandated the non-military reactive measures proposed by the ICISS. To name a few examples, it referred the situation in Libya to the prosecutor of the International Criminal Court (ICC) and imposed travel bans on targeted individuals.404 The resolution invokes Article 41 as the legal basis for the Council’s action, but R2P language is used to justify the Chapter VII mandate. Notably French Representative to the UN Gérard Araud and former UN Secretary General Ban Ki-moon referenced R2P at the Security Council meetings on the adoption of Resolution 1970.405 The Security Council did not indicate the existence of a threat to international peace and security in Reso398 See also Joseph V Micallef, ‘The Arab Spring: Six Years Later’ The Huffington Post (29 January 2017) accessed 1 December 2019. 399 SC Res. 1970 (26 February 2011), UN Doc. S/RES/1970. 400 SC Res. 1973 (17 March 2011), UN Doc. S/RES/1973. 401 Compare, concerning Resolution 1970 Dorota Banaszewska and Robert Frau, ‘“Volle Breitseite” – VN-Sicherheitsratsresolution 1970 zur Lage in Libyen’ (8 March 2011) accessed 1 December 2019; concerning Resolution 1973 Manuel Brunner and Robert Frau, ‘Militärische Zwangsmaßnahmen gegen Libyen – UN-Sicherheitsratsresolution 1973 vom 17. März 2011’ (29 March 2011) accessed 1 December 2019; Matthias C Kettemann, ‘UN-Sicherheitsrat beruft sich in Libyen-Resolutionen erstmals auf Responsibility to Protect’ (30 March 2011) accessed 1 December 2019. 402 SC Res. 1970 (n. 399), preamble. 403 ibid., preamble. 404 International Commission on Intervention and State Sovereignty (n. 13), para. 3.26. 405 Gérard Araud stated that ‘[t]he text, unanimously adopted today, recalls the responsibility of each state to protect its own population and of the international community to intervene when states fail in their duty.’ See 6491st Meeting of the Security Council (26 February 2011), UN Doc. S/PV.6491, 5. Ban Ki-moon pointed out that ‘[…] the heads of state and government at the 2005 World Summit pledged to protect populations by preventing genocide, war crimes, ethnic cleansing and crimes against humanity, as well as their incitement.’ See 6490th Meeting of the Security Council’ (25 February 2011), UN Doc. S/PV.6490, 3.

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lution 1970, but rather referred to an emergency in which the civilian population may be experiencing violations of their human rights.406 All in all, Resolution 1970 can be viewed as referring partly to the R2P concept. While Chapter VII of the UN Charter is expressly mentioned as legal basis of the resolution, powerful R2P language is used as an additional call on states to act to end the crisis. The importance and power of language should not be underestimated in international politics. To name an example, crimes against humanity are considered to belong to the most serious crimes of international law, condemned by the international community as a whole. By ‘considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’,407 the UNSC reminds the Libyan government, but also the international community of the gravity and severity of the crimes committed in Libya. This serves as a powerful political call for states to engage in protecting the civilian population. b)

Resolution 1973

Due to the Libyan authorities’ wilful failure to comply with the previous resolution and the escalation of violence in Libya, Resolution 1973 was adopted only three weeks after Resolution 1970. It constituted the first attempt to implement R2P by military means.408 In this resolution, the Security Council authorised member states to take measures aimed at protecting civilians in Libya.409 Both the preamble and the operational paragraphs of Resolution 1973 refer to elements of R2P. In this resolution, the Security Council once again ‘reiterates the responsibility of the Libyan authorities to protect the Libyan population’.410 Furthermore, while Resolution 1970 only alludes to Libya’s primary responsibility, Resolution 1973 additionally refers, albeit not expressly, to the secondary responsibility of the international community by authorising measures to be taken by UN member states. The Security Council also stressed the responsibility placed on the insurgents by pointing out ‘the responsibility of the conflict parties to take all feasible steps to ensure the protection of civilians.’411

406 SC Res. 1970 (n. 399), preamble. 407 ibid. 408 Compare also Peter Hilpold, ‘Präzedenzfall für Syrien?’ Der Standard (30 August 2011) accessed 1 December 2019. 409 SC Res. 1973 (n. 400), para. 4. 410 ibid., preamble. 411 Fröhlich (n. 297), 144.

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The Security Council declared ‘that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’,412 and thereby again referred to a crime associated with R2P.413 Resolution 1973 can be generally characterised as constituting the ‘missing link’ between the opinio juris and the application of R2P in practice.414 Before the adoption of this resolution, a number of member states have declared their commitment to R2P. This will be elaborated upon later in the paper when determining the current legal status of the concept. Nevertheless, R2P had, until the adoption of Resolution 1973, never been implemented in practice, emphasising the vital importance of this resolution for the development of the concept. In Resolution 1973, the Security Council authorised member states to take ‘all necessary measures’ to protect civilians in Libya.415 It further called upon all member states to support the military measures of other states,416 stressing the secondary responsibility of the international community. However, the language of Resolution 1973 is significantly broad and vague and is open to (mis-)interpretation. It is also not clear which measures the international community is allowed to take. Apart from ‘a foreign occupation force of any form on any part of Libyan territory’ that is strictly forbidden,417 and within the limits of international law, states seem to be free to decide which measures to take to protect civilians. However, in terms of the concept, Resolution 1973 marked a significant step towards anchoring R2P in international law by authorising such farreaching measures with reference to R2P for the first time. Secretary-General Ban Kimoon spoke of an ‘historic decision’,418 and Peter Hilpold referred to Resolution 1973 as a ‘pivotal step’ for the development of R2P.419 However, there have also been critical voices in the international legal literature who claim that Resolution 1973 did not primarily refer to R2P, but rather to the concept of ‘Protection of Civilians in Armed Conflict’ (POC).420 POC has its roots in IHL of the 412 SC Res. 1973 (n. 400), preamble. 413 Christopher Verlage, ‘Die Sicherheitsratsresolution 1973 zum Fall Libyen – Ein Meilenstein für die völkerrechtliche Verankerung der Responsibility to Protect’ (2013) 88(1) FW 63, 73. 414 ibid., 75. 415 SC Res. 1973 (n. 400), para. 4. 416 ibid., preamble. 417 ibid., para. 4. 418 Ban Ki-moon, ‘Statement on Libya’ (17 March 2011) accessed 1 December 2019. 419 Peter Hilpold, ‘Intervening in the Name of Humanity: R2P and the Power of Ideas’ (2012) 17(1) Journal of Conflict & Security Studies 49, 78. 420 Compare in this regard Hugh Breakey and Angus Francis, ‘Points of Convergence and Divergence: Normative, Institutional and Operational Relationships between R2P and PoC’ (2011) 7(4) Security Challenges 39, 48, n. 27; David Berman and Christopher Michaelsen, ‘Intervention in Libya: Another Nail in the Coffin for the Responsibility-to-Protect?’ (2012) 14(4) ICLR 337, 354; Andrew

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19th century, and requires that combatants in armed conflicts must clearly distinguish between combatants and civilians to the effect that only the former group may be targeted.421 Because both concepts aim at protecting people from potential harm, some similarities exist between R2P and POC. However, there are also important differences between the two concepts, particularly regarding their scope. Accordingly, R2P and POC are considered to be ‘sisters, not twins’.422 POC is applicable to situations of armed conflict in a broader sense encompassing traditional armed conflicts and situations of mass violence.423 The application of R2P is so far limited to genocide, war crimes, ethnic cleansing, and crimes against humanity, which underscores the fact that the scope of POC is much broader than that of R2P. Resolution 1973 should be viewed as including elements of both R2P and POC,424 the reason being that it refers to the elements and the scope of R2P, but also states that the explicit objective of the military action consist in the protection of civilians. The ICISS report specifies strict requirements with regard to the use of military force (the precautionary principles), namely just cause, right intention, last resort, proportional means, and reasonable prospects. The World Summit Outcome document did not take up these principles and solely limited the scope of R2P to the four worst crimes of genocide, crimes against humanity, war crimes, and ethnic cleansing. However, it is obvious that some criteria for military intervention are required to prevent arbitrary interventions.425 Resolution 1973 does not explicitly mention the requirements of R2P,426 but, if the two resolutions (1970 and 1973) are considered together, both the criteria of the Outcome document and the precautionary principles are fulfilled. The protection of civilians from human rights violations and crimes against humanity constitute a just cause. Muammar al Gaddafi announced that ‘any Libyan who takes arms against Libya will be executed’,427 underlining that the Libyan state was no longer willing to protect its population. The Security Council states in Resolution 1973 that the Libyan

421

422 423 424 425 426 427

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Garwood-Gowers, ‘The Responsibility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm?’ (2013) 36(2) UNSW Law Journal 594, 605–606. Hugh Breakey and others, ‘Enhancing Protection Capacity: Policy Guide to the Responsibility to Protect and the Protection of Civilians in Armed Conflicts’ (19 November 2012) accessed 1 December 2019, Policy Guide Executive Summary, viii. Vesselin Popovski, ‘The Concepts of Responsibility to Protect and Protection of Civilians: ‘Sisters, but not Twins’’ (2011) 7(4) Security Challenges 1, 6. Breakey and others (n. 421), Policy Guide Executive Summary, xi. Compare also Popovski (n. 422), 7; Breakey and Francis (n. 420), 41; ibid., XXII. Pierre Thielbörger, ‘The Status and Future of International Law after the Libya Intervention’ (2012) 4(1) GoJIL 11, 25. Compare also ibid., 25. Barbara Miller, ‘Defiant Gaddafi Issues Chilling Threat’ (2011) accessed 1 December 2019.

I. History

government failed to comply with Resolution 1970,428 emphasising that the measures authorised in Resolution 1973 were undertaken as a last resort. In providing a precondition for adopting measures under Chapter VII of the UN Charter, the Security Council identified and responded to a threat to international peace and security. The Security Council additionally clarified its willingness to ensure that assets frozen pursuant to paragraph 17 of Resolution 1970 would be made available to the Libyan population as soon as possible,429 signifying the responsibility to rebuild.430 In conclusion, Resolution 1973 constitutes an important milestone towards anchoring R2P in international law. The resolution marks the first time the UNSC had authorised military measures under reference to R2P, emphasising that the concept has begun to gain currency. It unequivocally stresses Libya’s primary responsibility to protect its population, and also alludes to the secondary responsibility of the international community, albeit not expressly. Together with Resolution 1970, it also reflects two of the three dimensions of R2P, namely the responsibilities to react (by authorising ‘all necessary measures’) and to rebuild (by ensuring that the frozen assets would be made available to the Libyan population). However, the invocation of R2P in the Libyan context had not been free from criticism, as the next section demonstrates.

6.

Responsibility to protect after Libya and Syria: sudden death?

The implementation of Resolution 1973 by NATO forces was met with harsh criticism from Russia, China, and the other BRICS (Brazil, Russia, India, China, and South Africa) states. This criticism was concentrated around three main aspects.431 The first allegation concerns a potential exceedance of the scope of Resolution 1973 by the intervening states, given that the resolution intended to ensure protection to civilians. However, states were also engaged in arming rebels and attacking a range of targets beyond those necessary to protect civilians.432 In this regard, former Russian representative to the UN Vitaly Churkin has recalled that some actions by the NATO forces have

428 429 430 431

UN Security Council, ‘SC Res. 1973’ (n. 394), preamble. ibid., para. 20. Fröhlich (n. 297), 144. Compare Garwood-Gowers, ‘The Responsibility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm?’ (n. 420), 609. 432 Compare in this regard the comments made by former Russian Representative to the UN Vitaly Churkin and former Chinese Representative to the UN Li Baodong, at the Security Council debate on the situation in Libya in May 2011. See 6528th Meeting of the Security Council (4 May 2011), UN Doc. S/PV.6528, 9–10. See also 6627th Meeting of the Security Council (4 October 2011), UN Doc. S/ PV.6627, 4.

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also led to civilian casualties, and that any act that exceeds the mandate established in Resolution 1973 is unacceptable.433 The second claim is closely related to this first point of criticism and equally accuses the intervening powers of stretching the mandate of Resolution 1973 beyond the protection of civilians to regime change and the death of former dictator Muammar al Gaddafi.434 Nicaragua, a long-standing opponent of R2P,435 has alleged the ‘shameful manipulation of the slogan “protection of civilians” for dishonourable political purposes, seeking unequivocally and blatantly to impose regime change, attacking the sovereignty of a state member of the United Nations […]’.436 R2P is not intended to provoke regime change. Conversely, based on the notion of sovereignty-as-responsibility,437 R2P generally preserves rather than undermines the ­sovereignty of states.438 Intervention of the international community in other states is only permitted when the most serious crimes are being committed, and when the UNSC authorised the use of force. However, in particular circumstances, it is inevitable to achieve the overall goal of protecting innocent people. Edward C. Luck, former Special Adviser of the Secretary-General on the Responsibility to Protect, noted that the goal of R2P is not regime change, but that in some ways, regime change might be the only way to protect populations.439 433 6528th Meeting of the Security Council (n. 432), 9. 434 Compare Kofi Annan, who stated that ‘la manière dont la “responsabilité de protéger” a été utilisée sur la Libye a créé un problème pour ce concept. Les Russes et les Chinois considèrent qu’ils ont été dupés: ils avaient adopté une résolution à l’ONU, qui a été transformée en processus de changement de régime’ [The way in which R2P has been used in Libya caused a problem for the concept. The Russians and the Chinese think they have been defrauded: they have adopted an UN resolution, which has been transformed into a process of regime change.] See the interview by Natalia Nougayrède, ‘Kofi Annan: “Sur la Syrie, à l’évidence, nous n’avons pas réussi”’ Le monde (7 July 2012) accessed 1 December 2019. See also Thielbörger, ‘The Status and Future of International Law after the Libya Intervention’ (n. 425), 45. 435 Alex J Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’ in Thomas G Weiss and others (eds), The Responsibility to Protect: Challenges & Opportunities in Light of the Libyan Intervention (e-International Relations 2011), 20. 436 6531st Meeting of the Security Council (10 May 2011), UN Doc. S/PV.6531, 34. Arguing that ‘[i]t is regrettable that certain countries are seeking regime change in Libya, in violation of the Charter of the United Nations, Venezuela raised similar concerns. See 6531st Meeting of the Security Council (10 May 2011), UN Doc. S/PV.6531 (Resumption 1), 19. 437 See section C. II. 1, p. 95–98. 438 Thielbörger, ‘The Status and Future of International Law after the Libya Intervention’ (n. 425), 44. 439 Bernard Gwertzmann, ‘Will Syria Follow Libya?: Interview with Edward C. Luck’ (1 September 2011) accessed 1 December 2019. Compare also Ramesh Thakur, ‘R2P, Libya and International Politics as the Struggle for Competing Normative Architectures’ in Thomas G Weiss and others (eds), The Responsibility to Protect: Challenges & Opportunities in Light of the Libyan Intervention (e-International Relations 2011), 13.

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The third criticism concerned the alleged primacy granted to the use of military means, and their danger to do more harm than good.440 In this regard, Russia claimed that ‘ [t]he demand for a quick ceasefire turned into a full-fledged civil war, the humanitarian, social, economic and military consequences of which transcend Libyan borders.’441 In sum, although Resolution 1973 has been a milestone towards anchoring R2P in international politics, critics have argued that the implementation of the resolution by member states ‘has given R2P a bad name’.442 Proponents of R2P, conversely, have insisted that Libya constituted a success for R2P. Gareth Evans, one of the founding fathers of R2P, has stated that ‘[…] the Libyan case was, at least at the outset, a textbook case of the RtoP norm working exactly as it was supposed to.’443 The controversy around the NATO intervention in Libya has also reinforced the suspicions of those questioning the concept, and the opposition of veto-wielding Russia and China subsequently blocked Security Council action in Syria.444 As Ramesh Thakur remarked, ‘[…] the Libyan operation proved particularly controversial among the emerging powers, and the price of exceeding the mandate there has been paid by Syrians.’445 Therefore, critics argue that R2P constitutes an antiquated concept that has ‘died’ with the abysmal demise of Syria, where the Security Council has allowed thousands of people to die without intervening.446 Protests against the ruling regime in Syria

440 Compare Russia’s comments at a UNSC meeting on Syria. See 6627th Meeting of the Security Council (n. 432), 4. Compare also Garwood-Gowers, ‘The Responsibility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm?’ (n. 420), 609. 441 6627th Meeting of the Security Council (n. 432), 4. 442 This statement was made by Indian Ambassador to the UN Hardeep Singh Puri, quoted in Philippe Bolopion, ‘After Libya, the Question: to Protect or Depose?’ LA Times (25 August 2011) accessed 1 December 2019. 443 Gareth Evans, ‘Interview: The R2P Balance Sheet after Libya’ in Thomas G Weiss and others (eds), The Responsibility to Protect: Challenges & Opportunities in Light of the Libyan Intervention (e-International Relations 2011), 40. 444 Russia even explicitly referred to the Libyan experience when blocking a resolution on Syria. See 6627th Meeting of the Security Council (n. 432), 4; Bolopion (n. 442). Compare also Berman and Michaelsen (n. 420), 337; Garwood-Gowers, ‘The Responsibility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm?’ (n. 420), 610. 445 Ramesh Thakur, ‘R2P after Libya and Syria: Engaging Emerging Powers’ (2013) 36(2) TWQ 61, 70. 446 Compare David Rieff, ‘R2P, R. I. P.’ (8 November 2011) accessed 1 December 2019, arguing that ‘[…] the campaign in Libya has done grave, possibly even irreparable, damage to R2P’s prospects of becoming a global norm.’ Compare also Berman and Michaelsen (n. 420), 338; Michael Newton, ‘Newton: ‘R2P is Dead and Done’ Due to Response to Syria’ (16 September 2013) accessed 1 December 2019.

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began in January 2011, and were violently put down by the government.447 In contrast to the quick response to the atrocities committed by the former Libyan government, the Security Council failed to act on Syria for a significant period of time.448 On October 4th, 2011, China and Russia vetoed a proposed resolution supported by the UK, France, Germany, and Portugal.449 Russia stated in unequivocal terms that [t]he international community is alarmed by statements that compliance with UNSC resolutions on Libya in the NATO interpretation is a model for the future actions of NATO in implementing the responsibility to protect.450 The draft resolution of February 2012, supporting the retirement of President Assad and a ‘Syrian-led political transition to a democratic, plural political system’,451 was equally blocked by Russia and China. In February 2012, Kofi Annan was appointed ‘Joint Special Envoy for the United Nations and the League of Arab States’, and a six-point proposal on a peaceful settlement of the Syrian crisis was agreed to by the Syrian government and the UNSC.452 However, the continuing violence in Syria has resulted in the suspension of the proposal.453 In July 2012, the International Committee of the Red Cross (ICRC) declared that the situations in several parts of the country, including the towns of Homs, Idlib, and Hama, had amounted to a non-international armed conflict (NIAC) between government forces and organised armed opposition groups.454 In May 2013, the General Assembly adopted a resolution that strongly condemned the grave violations of international human rights law and IHL committed by the Syrian government against its own citizens. It also welcomed the establishment of the national coalition for Syrian revolutionary and

447 UN Security Council, ‘Syria: Chronology of Events’ (2 August 2017) accessed 1 December 2019. 448 Apart from issuing press statements and presidential statements, the Council did not take action, as a resolution was blocked by Russia and China. Compare Jess Gifkins, ‘The UN Security Council Divided: Syria in Crisis’ (2012) 4(3) Global Responsibility to Protect 377, 377; Spencer Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13 MelbJIntL 59, 71; Andrew Garwood-Gowers, ‘The Responsibility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm?’ (n. 420), 595. 449 There were nine votes in favour (Bosnia and Herzegovina, Colombia, France, Gabon, Germany, Nigeria, Portugal, the UK, and the US), two against (China and Russia) and four abstentions (Brazil, India, Lebanon, and South Africa). 450 6627th Meeting of the Security Council (n. 432), 4. 451 Draft Resolution February 2012 (February 2012), UN Doc. S/2012/77, para. 7. 452 SC Res. 2042 (14 April 2012), UN Doc. S/RES/2042, Annex. 453 Compare Gifkins (n. 448), 377. 454 International Committee of the Red Cross, ‘Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort amid Increased Fighting’ (17 July 2012) accessed 1 December 2019.

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opposition forces to guarantee a political transition.455 The resolution was adopted with 107 votes in favour, 59 abstentions, and 12 votes against, of which Russia and China were two.456 Although the humanitarian situation in Syria was deteriorating at this time, particularly due to the rise of the Islamic State (IS), it was not until November 2015, shortly after the Paris terrorist attacks, that the UNSC adopted a resolution calling on member states to ‘take all necessary measures to prevent and suppress terrorist acts committed specifically by ISIL […] and other terrorist groups’.457 Now, three years later, IS has lost control of most of its land, and Raqqa, a city that served as its headquarters, has been reclaimed by an alliance of Syrian Kurdish and Arab fighters.458 More than 5.4 million people have fled Syria since 2011,459 rendering the Syrian crisis the ‘worst man-made disaster since World War II’.460 Therefore, the failure of the international community to provide a timely and decisive response to the Syrian crisis could have led to the ‘death’ of R2P. However, it does not seem that support for the R2P principle has decreased due to the Syrian War. Since September 2010, 59 states have appointed R2P focal points to coordinate the implementation of R2P at the national level.461 After the adoption of Resolution 1973, the UNSC has also increasingly referred to R2P.462 Between March 2017 and the time of writing, the Security Council has mentioned R2P in 59 resolutions.463 To name a few examples, Security Council Resolution 1975 on Côte d’Ivoire, Resolution 2085 on Mali, Resolution 2109 on South Sudan, Resolution 2149 on the Central African Republic, and Resolution 2385 on Somalia,464 made reference to R2P, particularly to the primary re455 ‘The Situation in the Syrian Arab Republic’ (4 June 2013), UN Doc. A/RES/67/262, para. 2, 26. 456 The other states that voted against the resolution were Belarus, Bolivia (plurinational state of), Cuba, Democratic People’s Republic of Korea, Ecuador, Nicaragua, Venezuela (Bolivarian Republic of), and Zimbabwe. See 80th Plenary Meeting (15 May 2013), UN Doc. A/67/PV.80, 24. 457 SC Res. 2249 (20 November 2015), UN Doc. S/RES/2249, para. 5. 458 British Broadcasting Corporation, ‘What’s happening in Syria?’ (16 April 2018) accessed 1 December 2019. 459 UN High Commissioner for Refugees, ‘Syria Emergency’ (7 December 2017) accessed 1 December 2019. 460 Dylan Collins, ‘Syria War: ‘Worst Man-Made Disaster since World War II’’ Al Jazeera (15 March 2017) accessed 1 December 2019. 461 Global Centre for the Responsibility to Protect, ‘Global Network of R2P Focal Points’ accessed 1 December 2019; Lars Brozus and Raphaela Hobbach, ‘Lernen aus Ruanda: Die Entwicklung einer wirksamen internationalen Schutzverantwortungspolitik’ [2014] SWP Aktuell 1, 2. 462 Alex J Bellamy, ‘From Tripoli to Damascus? Lesson Learning and the Implementation of the Responsibility to Protect’ (2014) 51 International Politics 23, 26. 463 See Global Centre for the Responsibility to Protect, ‘UN Security Council Resolutions Referencing R2P’ (30 July 2018) accessed 1 December 2019. 464 SC Res. 1975 (30 March 2011), UN Doc. S/RES/1975, preamble; SC Res. 2085 (20 December 2012), UN Doc. S/RES/2085, para. 9(d); SC Res. 2109 (11 July 2013), UN Doc. S/RES/2109, pre-

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sponsibility of states to protect their civilians. It is important to remember that R2P is not meant to create new legal obligations, but that its strengths lay rather in its ability to create political pressure for states to act in the face of mass atrocities.465 This will be elaborated on in chapter C III. Although states do not always agree on concrete measures to be taken in the face of mass atrocities, they agree on the fact that action is required. Most importantly, R2P clarifies which actors hold this responsibility by establishing the primary responsibility of national authorities, and the secondary responsibility of the international community.466 The developments after Libya and Syria highlight that the objection of some states to R2P does not pertain to the concept as such, but rather its implementation in practice.467 Most of the criticism that has been raised in the aftermath of the Libyan intervention had to do with a (mis-)interpretation of Resolution 1973 by the international community, and not with the reference to R2P in the document. The language of Resolution 1973 was too broad and vague in that, the notion of ‘all necessary means’ can imply a wide range of measures on the part of the international community. Therefore, it would be desirable that the wording of future resolutions of the UNSC would be clearer in terms of the concrete obligations of states to prevent misunderstandings. However, the intervention in Libya is considered by some a ‘triumph for the rule of international law’,468 given that the international community did recognise the need for the Security Council to authorise any intervention in Libya and did not intervene unilaterally as in the case of Kosovo in 1999. In conclusion, as a senior UN official pointed out, ‘Libya didn’t kill R2P. But it raised a host of new and complex political and policy questions. We have a lot of work to do.’469 Therefore, this thesis aims to provide clarity regarding the application of R2P in practice, particularly in terms of the issue of climate change.

II.

Theoretical foundations

The following section provides a brief overview of the theoretical basis of R2P to better understand the evolution of the concept. R2P’s foundations are based on the obligations inherent in the concept of sovereignty, the duty of the Security Council to be

465 466 467 468 469

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amble; SC Res. 2149 (10 April 2014), UN Doc. S/RES/2149, preamble; SC Res. 2385 (14 November 2017), UN Doc. S/RES/2385, preamble. Jennifer M Welsh, ‘The Responsibility to Protect at Ten: Glass Half Empty or Half Full?’ (2016) 51(2) The International Spectator 1, 3. ibid., 5. Compare also Brozus and Hobbach (n. 461), 2. Thielbörger, ‘The Status and Future of International Law after the Libya Intervention’ (n. 425), 30. Interview with senior UN official (New York, November 2011), conducted by Spender Zifcak. See Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (n. 448), 72.

II.  Theoretical foundations

responsible for the maintenance of international peace and security under Article 24 of the UN Charter, special legal obligations required by human rights, IHL, and national law, and the developing practice of states, regional organisations, and the Security Council to act in the face of mass atrocities.470

1.

Obligations inherent in the concept of state sovereignty

The theoretical basis of R2P is a shift in perspective on the essence of sovereignty from sovereignty-as-control to sovereignty-as-responsibility.471 The concept of state sovereignty represents a pivotal principle of international law.472 Sovereignty refers to ‘the right to exercise therein [in the territory of a state], to the exclusion of any other state, the functions of a state’.473 The notion of sovereignty has undergone profound changes in the course of time.474 Its origins can be traced back to Aris­totle’s ‘Politics’ treatise.475 Aristotle referred to sovereignty as holding ‘supreme power within a state’ and argued that ‘the government is everywhere sovereign in the state’.476 The modern conception of sovereignty can be attributed to the Treaty of Westphalia of 1648, which established the principles of territorial delimitation of state authority and of non-intervention.477 Sovereignty signified the ‘legal identity of a state in international law’ in the Westphalian system.478 State sovereignty has internal and external dimensions, which are referred to as internal and external sovereignty. Internal sovereignty describes the relationship between states and their populations in which states exercise exclusive jurisdiction over their territo-

470 Draft Code of Crimes against the Peace and Security of Mankind with Commentaries (1996), 51 UN GAOR Supp. (No. 10), 14, UN Doc. A/CN.4/L.532, corr.1, corr.3 (1996); International Commission on Intervention and State Sovereignty (n. 13), Synopsis, XI. 471 ibid., para. 2.14; Evans and Sahnoun (n. 300), 101; Thakur, ‘In Defence of the Responsibility to Protect’ (n. 299), 161; Kreuter-Kirchhof (n. 296), 340; See also Anne Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20(3) EJIL 513, 514, who argues that R2P ‘definitely ousted the principle of sovereignty from its position as a Letztbegründung (first principle) of international law’. 472 Thakur, ‘In Defence of the Responsibility to Protect’ (n. 299), 160; Francis M Deng, ‘From ‘Sovereignty as Responsibility’ to the ‘Responsibility to Protect’’ (2010) 2 Global Responsibility to Protect 353; Samantha Besson, ‘Sovereignty’ (2011), Max Planck Encyclopedia of Public International Law (MPEPIL) accessed 1 December 2019, para. 1. 473 Island of Palmas Case (The Netherlands v USA) (Arbitral Award) (1928) II, 2 RIAA 829. 474 Besson (n. 472), para. 3. 475 Aristotle, ‘Politics, Book III, Part VI, translated by Benjamin Jowett’ accessed 1 December 2019. 476 ibid. 477 Besson (n. 472), para. 13; Nadakavukaren Schefer and Cottier (n. 280), 124 f. 478 International Commission on Intervention and State Sovereignty (n. 13), para. 2.7.

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ries and their populations.479 External sovereignty pertains to the relationship between states as international legal entities and other international legal entities.480 Article 2(4) of the UN Charter bans the threat or use of force directed at the territorial integrity of a state as corollary to its sovereignty. For many states, sovereignty does not only represent a fundamental doctrine of international law, but equally expresses a state’s worth and dignity.481 A dual responsibility arises besides the rights inherent in a state’s sovereignty. While sovereignty demands the mutual respect for other state’s territorial integrity as enshrined in Article 2(1) of the UN Charter, each state is responsible for protecting the rights of all people within its jurisdiction.482 Sovereignty does not imply that a state has the power to do whatever it wants to its own population.483 By contrast, former Secretary-General Kofi Annan considers the duty to protect its population ‘a state’s primary raison d’être’.484 During the 19th and the first half of the 20th century, sovereignty limited the reach and influence of international law. This understanding of sovereignty has been replaced by an international legal understanding that limits state sovereignty.485 In the 1949 Corfu Channel Case, Judge Alvarez made a statement that reflects this paradigm shift: We can no longer regard sovereignty as an absolute and individual right of every state, as used to be the case under the old law founded on the individualist regime, according to which states were only bound by the rules which they had accepted. To-day, owing to social interdependence and to the predominance of general interest, the states are bound by many rules which have not been ordered by their will.486 479 James Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012), 447. 480 Peters, ‘Humanity as the A and Ω of Sovereignty’ (n. 471), 516. 481 International Commission on Intervention and State Sovereignty (n. 13), para. 1.32; Larissa A Fast, Reina C Neufeldt and Lisa Schirch, ‘Toward Ethically Grounded Conflict Interventions: Reevaluating Challenges in the 21st Century’ (2002) 7(2) International Negotiation 185, 188; Victoria Sutton, ‘Emergencies, Disasters, Conflicts, and Human Rights’ in José M Zuniga, Stephen P Marks and Lawrence O Gostin (eds), Advancing the Human Right to Health (OUP 2013), 381. 482 Matthias Herdegen, ‘Souveränität heute’ in Matthias Herdegen and others (eds), Staatsrecht und Politik: Festschrift für Roman Herzog zum 75. Geburtstag (C. H. Beck 2009), 123; Kreuter-Kirchhof (n. 296), 340. 483 Stahn (n. 297), 112. 484 Report of the Secretary-General. In Larger Freedom: Towards Development, Security and Human Rights for All (n. 365), para. 135. 485 Knut Ipsen has said: ‘Die völkerrechtsbegrenzende Souveränität des 19. und der ersten Hälfte des 20. Jahrhunderts ist verdrängt worden durch das die Souveränität […] begrenzende Völkerrecht seit der zweiten Hälfte des 20. Jahrhunderts‘. See Knut Ipsen (ed), Völkerrecht (6th edn, C. H. Beck 2014), § 2 para. 67. 486 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Individual Opinion by Judge Alvarez) (1949), ICJ Rep 39, 43.

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Thus, elementary human rights can limit state sovereignty.487 An important shift from sovereignty-as-control to sovereignty-as-responsibility has occurred.488 R2P emphasises this shift by focusing on the population in need of protection rather than the intervening state.489 Therefore, R2P ‘is an ally of sovereignty, not an adversary’ and is based on the positive notion of sovereignty-as-responsibility rather than the contested idea of humanitarian intervention.490 The concept of sovereignty-as-responsibility was proposed in 1996 by Francis M. Deng, former Special Rapporteur on the Human Rights of Internally Displaced People.491 He argued that the legitimacy of a government arises from the recognition of this responsibility.492 According to Deng, the sovereignty of a state implies the responsibility of states ‘to provide for the security and well-being of those residing on their territories.’493 He further suggested a responsibility of the international community to hold states accountable and to provide assistance and protection to internally displaced populations.494 Some scholars deny that the concept of state sovereignty has undergone any significant changes in recent years by arguing that R2P and its conceptual development are based on a well-established understanding of state sovereignty.495 According to these scholars, the basis of R2P relies on the concept of functional sovereignty, meaning that the pur-

487 Peters, ‘Humanity as the A and Ω of Sovereignty’ (n. 471), 514, arguing that ‘state sovereignty is not only – as in the meanwhile canonical view – limited by human rights, but is from the outset determined and qualified by humanity, and has a legal value only to the extent that it respects human rights, interests, and needs […]’; Nadakavukaren Schefer and Cottier (n. 280), 128; Herdegen, Völkerrecht (n. 151), § 28. Souveränität als Rechtsbegriff, 222, para. 4. 488 International Commission on Intervention and State Sovereignty (n. 13), para. 2.14. 489 ibid., para. 2.29. 490 Report of the Secretary-General. Implementing the Responsibility to Protect’ (n. 379), para. 10(a). Compare also Martin Gilbert, ‘The Terrible 20th Century’ The Globe and Mail (31 January 2007, updated 25 April 2018) accessed 1 December 2019, stating that ‘[t]he Canadian-sponsored concept of ‘responsibility to protect’ proposed the most significant adjustment to national sovereignty in 360 years. It declared that for a country’s sovereignty to be respected, it must demonstrate responsibility toward its own citizens.’ 491 Francis M Deng and others (eds), Sovereignty as Responsibility: Conflict Management in Africa (Brookings Institution Press 1996), 211. 492 ibid., 32. 493 Francis M Deng, ‘Internally Displaced Persons: Report of the Representative of the Secretary-General’ (22 February 1996), UN Doc. E/CN.4/1996/52, para. 34. 494 ibid. 495 Compare, inter alia, Luke Glanville, Sovereignty and the Responsibility to Protect: A New History (The University of Chicago Press 2014), 218, arguing that ‘sovereignty has long entailed not only rights but also responsibilities’; Dederer (n. 105), 157; Von Arnauld, ‘Souveränität und Responsibility to Protect’ (n. 306), 42.

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pose of sovereignty is to administer state functions.496 This raises the question: what are the functions of a state? Referring once more to internal and external state sovereignty, the internal function of a state is to govern people, objects, and activities within its territory.497 The external function of a state involves the obligation of a state to protect the rights of other states within its territory, as noted by arbitrator Max Huber in the Island of Palmas Case.498 It is this external function of a state that has gradually transformed since World War II.499 Consistent with the development of international human rights protection, states are now committed to protect the rights of people within their territories and the rights of all people, as beneficiaries of both human rights and the common interests of the international community.500 Because advocates of both positions agree on the fact that R2P is theoretically based on the understanding of sovereignty-as-responsibility, the question of whether the concept of sovereignty has undergone profound changes over time remains unanswered. Sovereignty undoubtedly implies obligations on the part of states. These duties exist towards the population of a state and towards other states and the international community as a whole. However, it is also well-recognised that each state has its own domestic affairs in which no intervention is allowed. By viewing state sovereignty as sovereignty-as-responsibility, R2P lives up to this basic principle.

2.

Responsibility of the Security Council

Another basis for R2P is offered by the responsibility of the Security Council. Bearing the primary responsibility for the maintenance of international peace and security (Article 24 of the UN Charter), the Security Council is, according to the ICISS, the most appropriate body to act on R2P.501 According to Article 25 of the UN Charter, the decisions of the Security Council are binding on all UN member states. Determining a threat to peace or breach of the peace according to Article 39 provides the necessary precondition for applying Articles 41 and 42.

496 Louise Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’ (2008) 34 RIS 445, 448: ‘Such duty [a duty to protect] is a function of sovereignty and should be fulfilled primarily by the state concerned’; Peters, ‘Humanity as the A and Ω of Sovereignty’ (n. 471), 518 Dederer (n. 105), 171. 497 ibid., 174. 498 Island of Palmas Case (The Netherlands v USA) (n. 473), 829. 499 Dederer (n. 105), 175. 500 ibid., 178. 501 International Commission on Intervention and State Sovereignty (n. 13), para. 6.14.

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Since the early 1990 s, the Security Council has frequently classified gross domestic human rights violations as threats to international peace and security.502 This equation corresponds to the endorsement of R2P by the UN General Assembly.503 After determining the presence of a threat to peace or a breach of the peace, the Security Council may authorise measures provided for in Articles 41 and 42 of the UN Charter. The Security Council possesses a broad mandate for determining a threat to peace; however, this mandate is limited in exceptional cases. Ongoing genocide, for instance, must be considered a threat to peace in all instances.504 Article 41 pertains to non-military measures such as the interruption of economic relations or the severance of diplomatic ties between parties. If non-military measures have proven or would prove inadequate, the Security Council may consider military measures according to Article 42 of the UN Charter. Therefore, R2P can also be based on the responsibility of the UNSC under Article 24 of the UN Charter.

3.

International human rights law, humanitarian law, and national laws

Another foundation for R2P is the obligations of states under international human rights law, IHL, and national law. As examined in the previous chapter, states are obliged to protect their people from violations of their rights under international human rights law. Elementary human rights are peremptory rules of international law, particularly the prohibition of genocide, torture, and slavery.505 The obligation to respect basic human rights and the prohibition of genocide as one of the crimes under R2P are considered erga omnes. IHL is applicable in armed conflicts of an international or non-international character. It does not distinguish between nationalities or residences of people, but rather offers special protection to civilians that, unlike combatants, do not participate in hostilities. Rules of IHL are particularly relevant for the crime of war crimes under R2P. Genocide, ethnic cleansing, and crimes against humanity can equally be committed in armed conflict situations.

502 See, inter alia, SC Res. 940 (31 July 1994), UN Doc. S/RES/940 concerning Haiti; SC Res. 1264 (15 September 1999), UN Doc. S/RES/1264 concerning East-Timor; SC Res. 1556 (30 July 2004), UN Doc. S/RES/1556 concerning Darfur. Compare also Kreuter-Kirchhof (n. 296), 360. 503 ibid., 360. 504 Anne Peters, ‘The Security Council’s Responsibility to Protect’ (2011) 8 IOLR 1, 20. 505 Stein, Buttlar and Kotzur (n. 271), para. 150.

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National laws also enshrine protection duties of states toward their own populations. The constitutions of all states recognise the importance of guaranteeing basic human rights. Therefore, R2P is built from the fundamental values of international law.506

4.

Developing practice of states, regional organisations, and the Security Council

Another theoretical foundation referred to by the ICISS is the ‘developing practice of states, regional organizations and the Security Council itself ’.507 In contrast to the first three foundations that are relatively undisputed, this fourth foundation is much more contentious.508 As previously discussed, the international community faced a dilemma shortly before the endorsement of R2P: should states act unilaterally in situations of gross human rights violations in which the Security Council has failed to act, or should the international community remain silent and risk the escalation of atrocities against civilians? In recent times, states and regional organisations have tended to interfere in the affairs of other states to halt the continued violation of human rights. The Constitutive Act of the African Union (AU) provides for ‘the right of the Union to intervene in a member state pursuant to a decision of the Assembly in respect to grave circumstances, namely: war crimes, genocide, and crimes against humanity’.509 The Economic Community of West African States (ECOWAS) also tends to intervene in the affairs of its member states, both militarily and non-militarily.510 However, such a practice is illegal under international law. For example, the 1999 NATO intervention in Kosovo clearly contradicted international law by lacking prior authorisation of the UNSC. Therefore, despite the developing practice of states and regional organisations to act unilaterally to end gross human rights violations in other states, authorisation of the Security Council should be sought prior to any intervention in respect of international law. Therefore, this fourth foundation should be interpreted restrictively, requiring a Security Council resolution as a precondition for any action by states and regional organisations, as also foreseen in the R2P concept.

506 Kreuter-Kirchhof (n. 296), 357. 507 International Commission on Intervention and State Sovereignty (n. 13), XI. 508 Nicolaas A Smit, The Evolution of the Responsibility to Protect: From the ICISS to the 2005 World Summit (Anchor Academic Publishing 2013), 24. 509 Constitutive Act of the African Union 1 July 2000, Article 4(h). 510 For example, the ECOWAS intervention in The Gambia in December 2016 was successful in prompting former President Yahya Jammeh to accept the results of a national election he had lost to opposition leader Adama Barrow. See The Market Mogul, ‘African Agency: The ECOWAS Intervention in The Gambia’ (5 January 2017) accessed 1 December 2019.

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III.

Legal status

The legal status of R2P is highly controversial because all documents that refer to R2P are not considered legally binding.511 Legal scholars are at odds over whether R2P constitutes a legal obligation,512 an emerging legal norm,513 soft law,514 or merely a political concept with no grounding in law.515 According to Article 38 of the ICJ Statute, the sources of international law are limited to international conventions, customary international law, and general principles of law. In this regard, the question arises over w ­ hether the enumeration of sources of international law indicated in Article 38(1) of the ICJ Statute is exhaustive. While the statute states that ‘[t]he Court […] shall apply […] international conventions […], international custom […], [and] the general principles of law recognized by civilized nations […]’, the inexplicit wording of the provision does not provide clear evidence in this regard.516 Because it is only reasonable to assume that the ICJ can only execute its tasks by resorting to new, unfolding sources of international law when necessary,517 Article 38(1) is generally considered to be non-exhaustive.518 Therefore, Article 38(1) does not ban the recognition of new sources of international law that are not listed in this provision. In this regard, unilateral acts of states and international organisations constitute ‘quasi-sources’519 of international law. If a state has the

511 The ICISS report, the High-Level Panel report, the reports of the Secretary-General as well as the World Summit Outcome document are only recommendatory in character. The Security Council resolutions referencing R2P, on the contrary, are legally binding under international law. 512 Arbour (n. 496), 447; Hilpold, ‘From Humanitarian Intervention to the Responsibility to Protect’ (n. 360), 30. 513 Evans and Sahnoun (n. 300), 110; Prandler (n. 303); Winkelmann (n. 361), para. 22. 514 In this sense Jennifer M Welsh and Maria Banda, ‘International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?’ (2010) 2(3) Global Responsibility to Protect 213, 231. 515 Luck (n. 297), 52. 516 Wolfgang Graf Vitzthum, ‘1. Abschnitt. Begriff, Geschichte und Rechtsquellen des Völkerrechts’ in Wolfgang Graf Vitzthum, Michael Bothe and Rudolf Dolzer (eds), Völkerrecht (7th edn. De Gruyter 2016), para. 148. 517 Alain Pellet, ‘Article 38’ in Andreas Zimmermann and others (eds), The Statute of the International Court of Justice: A Commentary (Oxford Commentaries on International Law, 2nd edn. OUP 2012), para. 90. 518 Compare, inter alia, Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia Publishers 2005), 28; Jean D’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (OUP 2011), 150; Joost Pauwelyn, ‘Is It International Law or Not, and Does It Even Matter?’ in Joost Pauwelyn, Ramses Wessel and Jan Wouters (eds), Informal International Lawmaking (OUP 2012), 133; Pellet (n. 517), para. 90; Graf Vitzthum (n. 516), para. 148; Jan Klabbers, International Law (CUP 2017), 24. 519 Pellet (n. 517), para. 91.

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intention to be legally bound by such a declaration, then it would be required to behave in a way that is consistent with the declaration.520 Thus, legal obligations can arise out of unilateral acts, which is also examined in the following analysis of the legal status of R2P.

1.

Legal status of the entire concept

In the absence of an international treaty embodying R2P, and considering the fact that an obligation of the international community cannot constitute a general principle of law, the following section examines whether R2P can be placed under the umbrella of customary international law. a)

Customary international law

According to Article 38 of the ICJ Statute, custom constitutes the ‘evidence of a general practice accepted as law’. Thus, it is created through the combination of two basic elements: an existing, common and consistent state practice and a corresponding psychological element, the opinio juris sive necessitatis, usually referred to as opinio juris.521 The element of opinio juris requires a state to believe that it is legally obliged to behave in a particular way.522 In the North Sea Continental Shelf Case, the ICJ defined the psychological element as requiring that ‘[t]he states concerned […] feel that they are conforming to what amounts to a legal obligation.’523 As a state of mind, emphasised by the wording ‘feeling’, the existence of an opinio juris is ‘not easily grasped either legally or factually’,524 and equally difficult to prove.525 Accordingly, it has to be deduced from actions and statements of a state.526

520 Nuclear Tests (Australia v France) ( Judgement) (1974), ICJ Rep 253, para. 43. 521 Case concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta) ( Judgement) (1985), ICJ Rep 13, para. 27; Hugh Thirlway, ‘The Sources of International Law’ in Malcolm D Evans (ed), International Law (4th edn. OUP 2014), 98; W. Heintschel von Heinegg, ‘§ 17. Völkergewohnheitsrecht’ in Knut Ipsen (ed), Völkerrecht (6th edn. C. H. Beck 2014), para. 2. 522 Malcolm N. Shaw (n. 112), 62. See also Heintschel von Heinegg, ‘§ 17. Völkergewohnheitsrecht’ (n. 521), para. 14. 523 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) ( Judgement) (1969), ICJ Rep 3, 44, para. 77. 524 Pellet (n. 517), para. 224. Compare also Maurice H Mendelson, ‘The Formation of Customary International Law’ (1998) 272 RdC 155, 281–282. 525 Malcolm N. Shaw (n. 112), 64. 526 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (n. 319), 99. Compare also Thirlway (n. 521), 99.

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A state’s voting behaviour in the Security Council and the General Assembly may also serve as an indicator of an opinio juris.527 Resolutions of the General Assembly may have normative value in the sense that they depict the attitude of states towards a particular subject as the ICJ clearly affirmed in the Legality of the Threat or Use of Nuclear Weapons Case.528 The Court moved on to describe more precisely in which circumstances a General Assembly resolution may serve as an indicator of opinio juris. In this regard, it is necessary to consider the content of the resolution, the conditions of its adoption, and the existence of other related resolutions, in the sense that a series of resolutions may show the ‘gradual evolution of the opinio juris’.529 The second element of customary international law is that of state practice. There are no fixed criteria for determining the existence of state practice; rather, it depends on the circumstances in each individual case. Each subject of international law can contribute to the creation of customary international law.530 The existence of state practice is a question of fact, not of law.531 Consequently, each behaviour that is attributable to a state, encompassing ‘legal’ and ‘real’ actions, may constitute a ‘practice’ in this sense.532 Possible examples include administrative acts, court decisions, legislation, and treaties.533 However, it is important to note that behaviour alone, which can either consist of an act or an omission, is insufficient to amount to state practice. The ICJ identified three conditions that must be fulfilled for a behaviour to constitute state practice.534 The first criterion concerns the length of the practice. In this regard, the Court noted that a rule of customary international law can emerge ‘even without the passage of any considerable period of time’.535 Thus, the emergence of state practice does not necessarily require the passage of a certain period of time if it is carried out in an extensive and uniform way. Furthermore, the practice must be general, which is 527 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (n. 319), 14, 99–100. 528 Legality of the Threat or Use of Nuclear Weapons (n. 272), para. 70. 529 ibid. 530 Von Arnauld, Völkerrecht (n. 112), para. 251. 531 Peter Stockburger, ‘The Responsibility to Protect Doctrine: Customary International Law, an Emerging Legal Norm, or Just Wishful Thinking?’ (2010) 5 Intercultural Hum L Rev 365, 389. 532 Bernhard Kempen and Christian Hillgruber, Völkerrecht (2nd edn, C. H. Beck 2012), Chapter 3, para. 103; Heintschel von Heinegg, ‘§ 17. Völkergewohnheitsrecht’ (n. 521), para. 6. 533 See, inter alia, Case concerning the Barcelona Traction Light & Power Company, Ltd (Belgium v Spain) (n. 267), para. 70; Fisheries (United Kingdom v Norway) ( Judgement) (1951), ICJ Rep 116, 131; Fisheries Jurisdiction Case (United Kingdom v Iceland) ( Judgement, Merits, Joint Separate Opinion of Judges Forster, Bengzon, Jiménez de Aréchaga, Nagendra Singh and Ruda) (1974), ICJ Rep 3, paras. 51–53. See also Pellet (n. 517), para. 212; Malcolm N. Shaw (n. 112), 60. 534 Compare also Pellet (n. 517), para. 221. 535 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (n. 523), para. 73.

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emphasised by the ICJ which notes that ‘states whose interests are particularly affected’ also have to contribute.536 The last criterion is that of constancy and uniformity. In this regard, the Court deems a ‘virtually uniform’ standard sufficient to constitute state practice.537 Overall, state practice must be ‘common, consistent and concordant’ to attain the status of customary international law.538 Researchers widely disagree about international jurisprudence over the determination of customary international law. In the North Sea Continental Shelf Cases, the ICJ established a traditional view, determining a relevant state practice before assessing evidence of a corresponding opinio juris.539 However, the ICJ advanced a rather modern view in the Nicaragua Case,540 proving the existence of an opinio juris before elaborating on its endorsement in practice.541 Both elements are ‘closely intertwined’,542 as emphasised by the ICJ itself which referred to state practice as evidence of the existence of an opinio juris.543 In the following section, the existence of a customary international norm of the responsibility to protect is analysed through resolutions of the General Assembly, the Security Council, and the European Parliament, as well as statements and actions of states. These documents and behaviours can equally prove the existence of an opinio juris and of state practice. Therefore, the following section does not distinguish between the two elements. aa)

General Assembly and Security Council

R2P was firmly codified in the 2005 World Summit Outcome document, which constitutes a non-binding recommendation rather than a legally binding obligation as a UN General Assembly resolution.544 Thus, General Assembly resolutions as such are unable 536 ibid., para. 74. 537 ibid. 538 Fisheries Jurisdiction Case (United Kingdom v Iceland) (n. 533), para. 16. 539 As cited earlier, the ICJ stated that ‘[n]ot only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.’ See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (n. 523), para. 77. Compare also Von Arnauld, Völkerrecht (n. 112), para. 258. 540 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (n. 319), 14. 541 ‘The Court must satisfy itself that the existence of the rule in the opinio juris of states is confirmed by practice’, ibid., para. 184. Compare also Von Arnauld, Völkerrecht (n. 112), para. 258. 542 Thirlway (n. 521), 98. 543 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (n. 523), para. 77; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (n. 319), paras. 183 and 207. 544 According to Article 25 of the UN Charter, (only) the Security Council is allowed to make binding decisions on UN member states. Thus, resolutions of the UN General Assembly are, argumentum e contrario, considered to be non-binding. See Von Arnauld, Völkerrecht (n. 112), para. 276. See also Malcolm N. Shaw (n. 112), 85.

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to act as the basis for new law.545 Nevertheless, the General Assembly provides an important political forum composed of all UN member states (193 states as of October 2018). Resolutions of the General Assembly represent majority decisions of member states,546 and carry significant political weight.547 As noted above, General Assembly resolutions may reflect an opinio juris if states believe they are legally bound thereby.548 However, General Assembly resolutions are political statements rather than legally binding documents for most states.549 Furthermore, the World Summit Outcome document contains a ‘watered down-version’ of the previously mentioned documents.550 Thomas G. Weiss has dubbed it ‘R2P-lite’.551 While the responsibility of each state towards its own population is referred to in an unequivocal manner, the corollary responsibility of the international community is articulated in less direct language.552 These facts already suggest that states do not recognise a legally binding obligation to take action if other states fail to fulfil their protection duties.

545 Herdegen, Völkerrecht (n. 152), § 20 Rechtserzeugung durch Internationale Organisationen, 167, para. 2. 546 Compare ibid., § 40. Vereinte Nationen, 317, para. 10. 547 The ICJ has frequently referred to General Assembly resolutions when proving the existence of an opinio juris. See, inter alia, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (n. 319), para. 188: ‘This opinio juris may […] be deduced from the attitude of the Parties and the attitude of states towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’’; Legality of the Threat or Use of Nuclear Weapons (n. 272), para. 70. See also Crawford (n. 479), 15. 548 ‘They [resolutions of the UN General Assembly] can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris’, Legality of the Threat or Use of Nuclear Weapons (n. 272), para. 70. Compare also Herdegen, Völkerrecht (n. 152), § 20. Rechtserzeugung durch internationale Organisationen, 167, para. 2. 549 ibid., § 20. Rechtserzeugung durch internationale Organisationen, 167, para. 2. 550 Prandler (n. 303), 717. 551 Thomas G Weiss, ‘R2P after 9/11 and the World Summit’ (2006) 24(3) WisIntlLJ 741, 750. Compare also Kettemann (n. 395). 552 The ICISS pointed out that ‘where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect’ and that the international community has a ‘responsibility to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.’ See International Commission on Intervention and State Sovereignty (n. 13), Synopsis, XI. The World Summit Outcome document, on the contrary, stated that ‘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.’ See ‘2005 World Summit Outcome’ (n. 105), para. 139.

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In February 2008, Edward C. Luck was appointed the first Special Adviser on the Responsibility to Protect, a position created by Secretary-General Ban Ki-moon.553 Charged with the task of further developing the concept of R2P, this appointment can be viewed as important step towards the implementation of the concept. Security Council resolutions, as legally binding documents, may reflect an opinio juris,554 making the practice of the Security Council of a greater importance. In various resolutions, such as 1970, 1973, 1975, 2014, 2121 and 2187, the Security Council has used ‘R2P language’555 to emphasise a state’s responsibility to protect its population. While the primary responsibility of individual states to protect their populations has been mentioned in several resolutions since 2006,556 Resolutions 1973 and 1975 are the only ones to mandate military action with reference to R2P, emphasising that state practice is nascent, but ‘neither recurrent nor widely observed’.557 Some researchers questioned the reference to R2P in these resolutions, arguing that the Security Council primarily invoked the concept of POC.558 In the opinion of the author, Resolution 1973 includes elements of both concepts because it refers to the scope and elements of R2P, but mentioned the protection of civilians as an explicit objective of the Libyan intervention. When referencing the responsibility of the international community, the Security Council has always used Chapter VII to justify non-military and military measures, which highlights its refusal to accept the binding force of R2P.559 Dissenting opinions of the 2011 NATO intervention in Libya reveal disagreement over the application of R2P in practice. While some governments supported military action against Libya,560 others criticised the western-led intervention, claiming that this was an

553 ‘Letter dated 31 August 2007 from the Secretary-General addressed to the President of the Security Council’ (7 December 2007), UN Doc. S/2007/721. 554 Peters, ‘The Security Council’s Responsibility to Protect’ (n. 504), 12. 555 Gareth Evans, ‘The Responsibility to Protect: Theory and Practice’ (China Institute of International Studies (CIIS) Conference on Responsible Protection: Building a Safer World, Beijing, 17 October 2013) accessed 1 December 2019. 556 Compare, inter alia, SC Res. 1706 (31 August 2006), UN Doc. S/RES/1706; SC Res. 1970 (n. 399); SC Res. 2014 (21 October 2011), UN Doc. S/RES/2014; SC Res. 2187 (25 November 2014), UN Doc. S/RES/2187. 557 Zifcak, ‘The Responsibility to Protect’ (n. 300), 529. 558 See chapter C. I. 5b), p. 87, n. 420. 559 SC Res. 1973 (n. 400); SC Res. 1975 (n. 464). 560 Notably the UK defended military action against Libya as ‘necessary, legal and morally right’. See Michael Tatham, ‘Statement at the United Nations General Assembly Interactive Dialogue on the ‘Report of the Secretary-General on the responsibility to protect: Timely and decisive response’’ (New York, 5 September 2012) accessed 1 December 2019.

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abuse of R2P to foment regime change.561 Therefore, resolutions of the General Assembly and the Security Council do not indicate that R2P is a legally binding norm. bb)

Other international institutions

Other international institutions have also adopted the concept of R2P, demonstrating the emergence of an opinio juris and of state practice in this regard. For example, in a number of resolutions, the European Parliament has referred to R2P with regard to the humanitarian crisis in Darfur.562 However, the mere reference to R2P in several documents does not serve as an indicator for the existence of a rule of customary international law. cc)

Proponents of the responsibility to protect

This section analyses the attitudes of the strongest supporters of R2P to clarify the current legal status of the concept. The analysis focuses on states and groups of states that have been particularly engaged in promoting the concept or have adopted laws which transform R2P into law. As far as European states are concerned, the attitudes and statements of the three major European powers, France, the United Kingdom (UK), and Germany, are analysed, as each of them has played a particular role in implementing the concept. In terms of the African continent, I did not select specific countries, but rather analysed the statements of the AU. The reason for this is that all 55 African states are members of the AU563 and that the Constitutive Act of the AU is reminiscent of some 561 Former Algerian Foreign Minister Mourad Medelci called the intervention disproportionate as concerns the objectives determined by the United Nations Security Council Resolution. Quoted in Christian Lowe, Algeria Demands End to Air Strikes on Libya (Reuters Africa 2011). During a General Assembly Debate in September 2012, Russian delegate Sergey Karev claimed that ‘the Libyan issue not only didn’t reinforce faith in R2P, but also harmed the image of this concept around the world.’ See Sergey Karev, ‘Statement by Russia at the United Nations General Assembly informal, interactive dialogue on the ‘Responsibility to Protect’ Timely and Decisive Response”’ (New York, 5 September 2012) accessed 1 December 2019. 562 ‘[…] [T]he UN ‘Responsibility to Protect’ provides that, where ‘national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity,’ the UN Security Council can agree to a Chapter VII military force’: European Parliament, ‘The Situation in Darfur’ (28 September 2006), P6_TA(2006)0387, para. E.; ‘[…] [T]he UN’s ‘Responsibility to Protect’ doctrine provides that where national authorities manifestly fail to protect their populations, others have a responsibility to provide the protection needed’: European Parliament, ‘Sudan and the International Criminal Court’ (28 May 2008), P6_TA(2008)0238, para. C; European Parliament, ‘Expulsions of NGO’s from Darfur’ (12 March 2009), P6_TA(2009)0145, para. F. 563 In January 2017, Morocco re-joined the AU after a 33-year absence. See Ben Quinn, ‘Morocco Rejoins African Union after more than 30 Years’ The Guardian (31 January 2017) accessed 1 December 2019.

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parts of R2P. With regard to the Americas, the analysis concentrates on Canada, Brazil, and the US, because Canada has established the ICISS, Brazil has worked on a concept entitled ‘Responsibility while Protecting’ (RwP) to further develop R2P, and remarkably the US has frequently referred to R2P. (1)

European states

European states have generally endorsed R2P and favour its establishment in international law. Among them, the three major European powers have been particularly committed to promoting the concept in Europe. Because these states also take the lead on European foreign policy, the analysis focuses on their attitude towards R2P. (a)

United Kingdom

The UK is a strong supporter of R2P.564 British diplomats have affirmed the concept and declared their readiness to implement it on multiple occasions since the endorsement of R2P at the 2005 World Summit.565 In 2005, former British Foreign Secretary Jack Straw stressed that thousands of lives in Srebrenica and Rwanda would have been saved if the concept had been developed a decade prior.566 In 2006, the Foreign and Commonwealth Office published a report entitled ‘The United Kingdom in the United Nations’ which affirms R2P and declares the UK’s willingness to act on the commitment made at the 2005 World Summit in crisis situations around the world. The reference to R2P can be found in the section on ‘humanitarian intervention’,567 emphasising that the UK equates R2P and humanitarian intervention. This clearly contradicts the intention of the ICISS when R2P was developed. During the 62nd Session of the UN General Assembly, David Miliband, then the UK Secretary of State for Foreign and Commonwealth Affairs, presented the UK’s perspective on R2P as a tool for conflict prevention.568 564 Alex J Bellamy, Responsibility to Protect (Wiley 2009), 67. 565 Jack Straw, ‘We are in Iraq to Bring about Democracy’ (Brighton, 28 September 2005) accessed 1 December 2019; Mark Lyall Grant, ‘Statement at the United Nations Security Council Open Debate on the Protection of Civilians’ (New York, 9 November 2011) accessed 1 December 2019; Tatham (n. 560), 5 September 2012. 566 Straw (n. 565), 28 September 2005. 567 Foreign and Commonwealth Office, ‘The United Kingdom in the United Nations’ ( July 2006) accessed 1 December 2019, para. 74 f. 568 David Miliband, ‘Statement by the Right Honourable David Miliband MP United Kingdom Secretary of State for Foreign and Commonwealth Affairs to the 62nd Session of the United Nations General Assembly’ (New York, 27 September 2007) accessed 1 December 2019, 5.

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In the view of the UK, R2P should be a ‘governing principle of all member states’ work across the conflict spectrum’.569 At the 2009 General Assembly debate on ‘Implementing the Responsibility to Protect’, former Minister of State at the British Foreign and Commonwealth Office Lord Malloch-Brown encouraged UN member states to establish an ‘R2P-culture’, which would emphasise the prevention of mass atrocities and conflicts.570 Referring to the rebellion in Libya in spring 2011, which was violently supressed by the Libyan Government, the UK’s Permanent Representative to the UN Peter Gooderham declared that Libya was ‘shamefully failing in fulfilling its responsibility to protect its people’.571 Thus, according to Gooderham, the international community was permitted to act. The Security Council then authorised member states ‘to take all necessary measures to protect civilians’ in Resolution 1973.572 In the aftermath of the NATO intervention in Libya, the UK defended military action against Libya as ‘necessary, legal, and morally right’.573 Because Resolution 1973 justified the use of force, whether this statement can be seen as a recognition of a legally binding R2P remains unclear. Subsequently, Deputy Permanent Representative of the UK Philip Parham affirmed the primary responsibility of each state to protect its population at the Security Council open debate on the protection of civilians in February 2013.574 As far as the international community is concerned, he did not confirm a corresponding responsibility, but rather stated that the UN ‘must provide the appropriate political, humanitarian, and development support necessary to protect civilians’.575 A few months later, the UK Government delivered a statement on the legality of military action in Syria following the August 2013 chemical weapons attack in eastern Damas-

569 Mark Malloch-Brown, ‘Statement by United Kingdom at the 2009 UN General Assembly Debate on the Responsibility to Protect’ (New York, 23 July 2009) accessed 1 December 2019, 3. 570 ibid. 571 Peter Gooderham, ‘Statement by the United Kingdom to the United Nations Human Rights Council Special Session on Libya’ (New York, 25 February 2011) accessed 1 December 2019, 2. 572 SC Res. 1973 (n. 400), para. 4. 573 Tatham (n. 560), 5 September 2012. 574 Philip Parham, ‘Statement by Ambassador Philip Parham, Deputy Permanent Representative of the UK Mission to the UN, to the Security Council Open Debate on Protection of Civilians’ (New York, 12 February 2013) accessed 1 December 2019, 1. 575 ibid., 1.

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cus.576 According to the UK, the use of chemical weapons constitutes a ‘serious crime of international concern’.577 The doctrine of humanitarian intervention is proposed to justify military measures against Syria if the Security Council experiences deadlock.578 The UK maintains the view that humanitarian intervention may serve as a legal basis for military action if three criteria are fulfilled. First, there must be ‘convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief ’. Secondly, there must be no practical alternative to the use of force if lives must be saved. Finally, the proposed use of force must be necessary and proportional to the aim of bringing relief to those in need.579 The UK seems to ascribe different legal qualities to these concepts by invoking the doctrine of humanitarian intervention rather than R2P. In January 2014, Hugh Robertson, former Minister of State at the Foreign and Commonwealth Office, made an interesting statement that equally called attention to this distinction. He referred to R2P as a responsibility that is based on existing norms, expressing a political readiness of the international community to take collective action.580 Thus, the UK views humanitarian intervention as a justification for the unilateral use of force by one or more states, while R2P is understood as an overarching concept carrying significant political weight but without creating new legal rights or duties. At the UN General Assembly Interactive Dialogue on Responsibility to Protect, former Ambassador and Deputy Permanent Representative of the UK Mission to the UN Peter Wilson also referred to R2P as ‘an important global principle’.581 Ambassador Mark Lyall Grant repeatedly affirmed the equal and shared responsibility of the international community to protect populations at risk when a government is either directly respon-

576 Government of the United Kingdom, ‘Chemical Weapon Use by Syrian Regime – UK Government Legal Position’ (29 August 2013) accessed 1 December 2019. 577 ibid., para. 2. 578 ibid., para. 4. 579 ibid. 580 Hugh Robertson, ‘Further Supplementary Written Evidence from the Rt Hon Hugh Robertson MP, Minister of State, Foreign and Commonwealth Office: Humanitarian Intervention and the Responsibility to Protect (USA 19)’ (14 January 2014) accessed 1 December 2019, 4. 581 Peter Wilson, ‘Statement at the United Nations General Assembly Interactive Dialogue on Responsibility to Protect’ (New York, 11 September 2013) accessed 1 December 2019.

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sible for atrocities or is incapable of stopping them.582 This responsibility should be exercised ‘in full conformity with the United Nations Charter’.583 In conclusion, there is no doubt that the UK recognises a political and moral responsibility to protect that falls on both each individual state and the international community. Thus, the UK demonstrates a refusal to recognise a legally binding R2P by repeatedly affirming that R2P should be exercised in accordance with prior Security Council authorisation. (b) France

France is one of the world’s strongest proponents of R2P. French officials have frequently argued in favour of the concept and have endorsed it on several occasions since embracing R2P at the 2005 World Summit.584 Notably, former French Foreign Minister and co-founder of Médecins Sans Frontières (Doctors without Borders) Bernard Kouchner appealed for R2P to be applied in the wake of a natural disaster in Myanmar. In May 2008, cyclone Nargis struck the coast of Myanmar, resulting in the deaths and displacements of many people along with a major disruption of economic activities.585 582 Mark Lyall Grant, ‘Statement at the United Nations Security Council meeting on: Threats to International Peace and Security: Prevention and Fight Against Genocide’ (New York, 16 April 2014) accessed 1 December 2019. 583 ibid.; Mark Lyall Grant, ‘Statement at the United Nations Special Event to Mark the 70th Anniversary of the Liberation of the German Nazi Extermination Camp in Auschwitz-Birkenau’ (New York, 21 January 2015) accessed 1 December 2019. 584 Compare, inter alia, Sean-Mare de la Sablière, ‘Statement by France at the United Nations Security Council Open Debate on the Protection of Civilians in Armed Conflicts’ (New York, 28 June 2006) accessed 1 December 2019, 20; Jacques Chirac, ‘Speech to the 61st Session of the United Nations General Assembly’ (New York, 19 September 2006) accessed 1 December 2019; Jean-Maurice Ripert, ‘Statement at the Seventh Debate on the Protection of Civilians in Armed Conflict’ (New York, 26 June 2009) accessed 1 December 2019; Gérard Araud, ‘Security Council: Protection of Civilians in Armed Conflict – Statement by France at the United Nations Security Council Debate on the Protection of Civilians in Armed Conflict’ (New York, 11 November 2009) accessed 1 December 2019; Gérard Araud, ‘Statement by France at the United Nations General Assembly Informal Interactive Dialogue on ‘The Responsibility to Protect: Timely and Decisive Response’’ (New York, 5 September 2012) accessed 1 December 2019. 585 For an overview of the human toll as well as the economic and social impacts, see The Tripartite Core Group, ‘Post-Nargis Joint Assessment’ ( July 2008) accessed 1 December 2019.

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Because Myanmar’s ruling military junta refused to allow foreign aid workers into the country, Bernard Kouchner called on the Security Council to invoke R2P to assure the delivery of humanitarian aid without the government’s consent.586 The European Parliament subscribed to his view and advocated for the UNSC in May 2008 ‘to examine whether aid shipments to Myanmar can be authorised even without the consent of the Burmese military junta’.587 This approach raised an intense debate within the international community over whether R2P should be applicable to natural disasters.588 In the end, the international community refused to invoke R2P in response to the humanitarian crisis in Myanmar, which raised concerns over the potential for the scope of R2P to be expanded.589 The Asia-Pacific Centre for the Responsibility to Protect discussed the applicability of R2P in this context in a policy paper.590 The paper concludes that the Government of Myanmar is not guilty of crimes against humanity. It argues that the refusal of Myanmar’s government to accept international relief, supplies, and medical assistance is not committed ‘as part of a widespread or systematic attack directed against any civilian population’ as Article 7 of the ICJ Statue requires.591 Therefore, the applicability of R2P is rejected. In its ‘White Paper on Defence and National Security’ published in 2008, the French government affirmed both the primary responsibility of individual states and the residual responsibility of the international community with respect to R2P.592 The paper also includes ‘guidelines governing the commitment of armed forces abroad’. France gives the impression of exploiting R2P to justify the potential use of coercive force by

586 Claudia Parsons, ‘France Urges U. N. Council to Act on Myanmar Cyclone’ (7 May 2008) accessed 1 December 2019; UN Security Council, ‘Security Council Report, Update Report No. 4, Myanmar’ (14 May 2008) accessed 1 December 2019. See, for a more detailed analysis, chapter D. IV. 2. a), p. 160–171. 587 European Parliament, ‘European Parliament Resolution of 22 May 2008 on the Tragic Situation in Burma’ (22 May 2008), P6_TA(2008)0231, para. 5. 588 Compare, arguing in favour of the R2P’s application, Pierre Lellouche, ‘Scandale birman: plus jamais ça!’ Le monde (23 June 2008) accessed 1 December 2019. 589 ‘Security Council Report, Update Report No. 4, Myanmar’ (n. 586), 2; Sarah Brockmeier, Gerrit Kurtz and Julian Junk, ‘Emerging Norm and Rhetorical Tool: Europe and a Responsibility to Protect’ (2014) 14(4) Conflict, Security & Development 429, 442. 590 Asia-Pacific Centre for the Responsibility to Protect, ‘Cyclone Nargis and the Responsibility to Protect: Myanmar/Burma Briefing No. 2’ (16 May 2008) accessed 1 December 2019. 591 ibid., 8. 592 Government of France, ‘The French White Paper on Defence and National Security’ (2008) accessed 1 December 2019, 26.

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positing that emergency situations may require legitimate defence or R2P.593 In this context, it seems that R2P is equated with the right to self-defence, which justifies the use of force in case of an armed attack against a state. However, subsequent statements disprove this assumption. At the 2012 General Assembly Informal Debate on the Responsibility to Protect, Permanent Representative of France to the UN Gérard Araud characterised R2P as a ‘political concept reminding states of their obligations that they have agreed [upon], but not always respected.’594 Although the responsibility to rebuild, initially proposed by the ICISS, was not included into the World Summit Outcome document, France declared its commitment to the three elements discussed earlier: prevent, react, and rebuild.595 In 2013, France proposed a ‘code of conduct’ for the use of vetoes in the Security Council, which aims to admonish the permanent members to restrain from using their right to veto in mass atrocity situations that would trigger R2P.596 Up to now, this proposal has not been accepted by the Security Council. In conclusion, France has taken several measures to boost the development of R2P. However, considering the French’s traditional positive attitude towards humanitarian intervention, the argument can be made that France uses R2P as a means to pursue its ideas of ‘humanitarian intervention’.597 Notably, Bernard Kouchner associated R2P with the droit d’ingérence (right to intervene), emphasising a refusal to recognise a legally binding R2P.598 His opinion reflects the wider French attitude with regard to R2P. There is no uniform opinio juris and no state practice regarding R2P within France.

593 ibid., 33. 594 Gérard Araud (n. 584), 5 September 2012, 1. 595 ibid. 596 Gérard Araud, ‘Statement by France at the Informal Debate on the Responsibility to Protect’ (New York, 11 September 2013) accessed 1 December 2019, 2. France, along with Austria, Germany, Hungary, the Republic of Korea, Luxembourg, Norway, Panama, Poland, Sweden, and the UK, had also signed onto a campaign to restrain the Security Council’s veto. See Jessica Kroenert, ‘ACT Group formally Launches Security Council Code of Conduct’ (26 October 2015) accessed 1 December 2019. 597 Brockmeier, Kurtz and Junk (n. 589), 431. 598 ‘Ce furent là deux moments historiques, qui posèrent les premiers jalons du droit d’ingérence, devenue la responsabilité de protéger, adoptée par consensus de cette Assemblée au sommet mondial de 2005. Qui aurait pu imaginer alors qu’un tel bouleversement du droit international fût possible.’ See Bernard Kouchner, ‘Statement by France at the 65th Session of the United Nations General Assembly’ (New York, 27 September 2010) accessed 1 December 2019, 4.

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(c) Germany

In contrast to the UK and France, Germany has been more reluctant to embrace R2P. Germany refers to R2P in the ‘Seventh Report on its Human Rights Policy in its External Relations and Other Policy Areas’,599 but does not explicitly affirm the concept. It rather focuses on the ability of the UNSC to authorise measures under chapter VII of the UN Charter.600 In 2006, Peter Wittig was appointed Director-General for the UN and Global Issues at the German Federal Foreign Office in Berlin. Since then, he has tried to promote R2P in Germany and through his advocacy, Germany has begun to utilise the concept more frequently.601 Since 2006, German officials have repeatedly affirmed the responsibility of both individual states and the international community.602 However, Germany abstained on Resolution 1973 that has been a milestone for R2P. At the General Assembly Informal Interactive Dialogue on the Responsibility to Protect in 2012, Ambassador Miguel Berger went so far as to refer to obligations of the international community that arise out of R2P.603 Because recent statements do not confirm this view, the author of this thesis maintains that he intended to describe a political or moral responsibility rather than a legal obligation. The German Federal Ministry of Defence referred to R2P as an ‘international law doctrine’ that will ‘affect the mandating of international peace missions by the United Nations Security Council’604 in the long term, underscoring Germany’s understanding of R2P as an emerging legal norm.605 This notion has been advocated by German representatives on various occasions.606 599 Auswärtiges Amt, ‘Siebter Bericht der Bundesregierung über ihre Menschenrechtspolitik in den Auswärtigen Beziehungen und in Anderen Politikbereichen [Seventh Report of the Federal Government on its Human Rights Policy in its External Relations and Other Policy Areas]’ (2005) accessed 1 December 2019, 204. 600 ibid., 204. 601 Brockmeier, Kurtz and Junk (n. 589), 443. 602 Peter Wittig, ‘Statement by Ambassador Wittig of Germany on Protection of Civilians in Armed Conflict in the Security Council’ (New York, 9 November 2011) accessed 1 December 2019; Miguel Berger, ‘Statement of Germany at the 4th Informal Interactive Dialogue on the Responsibility to Protect’ (New York, 5 September 2012) accessed 1 December 2019. 603 ibid. 604 German Federal Ministry of Defence, ‘White Paper 2006 on German Security Policy and the Future of the Bundeswehr’ (2006) accessed 1 December 2019, 44. 605 Brockmeier, Kurtz and Junk (n. 589), 439. 606 Peter Wittig, ‘Speaking Points of Germany at the United Nations General Assembly Informal Interactive Dialogue on Early Warning, Assessment and the Responsibility to Protect’ (New York, 9 August 2010) accessed 1 December 2019;

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From the German perspective, the prevention of mass atrocities and cooperation between individual states and the international community are essential for R2P.607 German representatives have repeatedly stressed the need to continue the debate on the implementation of R2P in the General Assembly.608 Germany can be generally described as a surreptitious advocate of R2P. The German government has launched an inter-ministerial working group for civil crisis prevention and early warning, along with an adjunct advisory council to operationalise R2P at the national level. Both institutions also debate country-specific and thematic issues related to R2P.609 However, Germany has not been particularly committed to publicly promoting the R2P concept and did not frequently refer to R2P between 2014 and 2018. However, Germany has demonstrated that it advocates the values of the R2P concept with its response to the massive influx of refugees fleeing from Syria to Europe since 2015. In summation, Germany accepts both the primary responsibility of states and the secondary responsibility of the international community and acts accordingly. Statements by German officials in relation to R2P suggest that this acceptance refers to a political responsibility rather than a legal one. Thus, no opinio juris and no state practice exist for Germany regarding R2P. (d) Remarks

This analysis has demonstrated that there is no unified European position with regard to R2P. Although the three major European powers all recognise R2P, France and the UK have advanced a much broader understanding of R2P than Germany.610 Although the UK has frequently referred to R2P since the 2005 World Summit, it is clear that it does not attach a binding force to the concept. Firstly, it seemed that the UK equated R2P and humanitarian intervention, which clearly contradicts the idea of R2P. R2P was not meant to constitute a pretext for unilateral intervention in other countries. The UK affirmed the primary responsibility of each individual state in subsequent statements. The secondary responsibility of the international community has not been equally endorsed; rather, the UK recognises a right of the international community to

607 608 609 610

Christoph Retzlaff, ‘Statement of Germany at the Informal Interactive General Assembly Dialogue on the Report of the Secretary-General ‘The role of regional and sub-regional arrangements in implementing the Responsibility to Protect’’ (New York, 12 July 2011) accessed 1 December 2019. Thomas Matussek, ‘Statement by Germany at the United Nations General Assembly Debate on Implementing the Responsibility to Protect’ (New York, 24 July 2009) accessed 1 December 2019. ibid.; Retzlaff (n. 606), 12 July 2011. Berger (n. 602), 5 September 2012. Brockmeier, Kurtz and Junk (n. 589), 450 f.

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assist other states through political, humanitarian, and development support. Furthermore, it has become obvious that the UK clearly distinguishes between R2P and humanitarian intervention. The UK views R2P as a political concept that does not entail duties on the part of states by itself, while humanitarian intervention does justify the use of force in exceptional circumstances. French officials have frequently affirmed the concept, making France one of the strongest supporters of R2P. Public attention was particularly raised by the call of former French Foreign Minister Bernard Kouchner to apply R2P in the wake of a cyclone in Myanmar, which was in the end denied. France attaches different legal qualities to the primary and the secondary responsibility of states in a similar fashion to the UK. France has also been engaged in developing a ‘code of conduct’ for the five permanent members of the Security Council (P5) in mass atrocity situations that would trigger the application of R2P. This is a noteworthy fact because France itself belongs to the P5 and would therefore be willing to accept limits to its rights. Germany has been more cautious in embracing R2P; it was not until 2006 with the appointment of Peter Wittig as Director-General for the UN that Germany began to promote the concept. Since then, German officials have referred to both the primary responsibility of states and the secondary responsibility of the international community several times in the sense of a political call rather than a legal obligation. Unlike the UK and France, does not advocate for the concept as such. However, the country is committed to the spirit and the values of R2P and engaged in the protection of refugees as the German reaction to the European migrant crisis has shown. Furthermore, it has become obvious that Germany does not accept a right to humanitarian intervention in the absence of a Security Council resolution, in contrast with the other European states. Disagreements among EU member states on the European response to the Libyan crisis reflect key differences in the interpretations of R2P.611 While France and the UK supported military action in Libya and voted in favour of Resolution 1973, Germany, a non-permanent member of the UNSC at this time, abstained from voting, arguing instead for tightened economic and financial sanctions.612 Nevertheless, the EU member states remain unified in accepting a political responsibility to protect civilians from mass atrocities.613 They also agree on the fact that R2P has not yet attained the status of customary international law. 611 ibid., 445. 612 Guido Westerwelle, ‘Statement in the German Bundestag on Resolution 1973’ (Berlin, 18 March 2011) accessed 1 December 2019. 613 Since 2005, the EU Parliament has referred to R2P in several resolutions. See, inter alia, European Parliament, ‘European Parliament Resolution on Darfur’ (6 April 2006), P6_TA(2006)0142; European Parliament, ‘European Parliament Resolution of 12 July 2007 on the Situation in Darfur’

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(2)

African states

Although some states fear that R2P can potentially be abused by meddling in the internal affairs of another state,614 most African states accept the concept, with several serving as members of the ‘Group of Friends of the Responsibility to Protect’.615 The Constitutive Act of the AU has enshrined principles that codify R2P into law.616 The act provides for ‘the right of the Union to intervene in a member state pursuant to a decision of the Assembly in respect to grave circumstances, namely: war crimes, genocide, and crimes against humanity’ in Article 4(h). These crimes are reminiscent of three of the four crimes associated with R2P, though the crime of ethnic cleansing is excluded. Therefore, if the AU’s General Assembly determines that mass atrocities in the sense of Article 4(h) are being committed, other states would be obligated to intervene. The AU affirmed R2P in a report entitled ‘Ezulwini Consensus’ at the 7th Extraordinary Meeting of the Executive Council in March 2005.617 The statement recognises the Security Council’s authority to mandate the use of force in situations of genocide, crimes against humanity, war crimes, and ethnic cleansing. According to the AU, the Security Council should also authorise regional organisations in close geographical proximity to conflicts to act. Such authorisation should be sought after the beginning of peace operations in urgent cases.618 Thus, both the AU Constitutive Act and the Ezulwini Consensus demonstrate the AU’s commitment to R2P. Notably, South Africa and Rwanda are strong supporters of R2P. Permanent Representative of Rwanda Eugène-Richard Gasana stated that the adoption of the World Summit Outcome document ‘marked a pivotal moment in the international com-

614

615

616 617

618

(12 July 2007), P6_TA(2007)0342; European Parliament, ‘European Parliament Resolution of 10 March 2011 on the Southern Neighbourhood, and Libya in particular’ (10 March 2011), P7_ TA(2011)0095. Notably Egypt raised concern about R2P. See Motaz Ahmadein Khalil, ‘Egypt’s Statement at the United Nations General Assembly Informal Interactive Dialogue on the Responsibility to Protect’ (New York, 11 September 2013) accessed 1 December 2019. The Group of Friends of the Responsibility to Protect, co-chaired by the Kingdom of the Netherlands and the Republic of Rwanda, is a group of 49 UN member states supporting the principle of R2P. See Canadian Centre for the Responsibility to Protect, ‘OpenCanada: From Promise to Practice, UN marks 10 Years of R2P’ (16 September 2015) accessed 1 December 2019. Constitutive Act of the African Union (n. 509). African Union, ‘The Common African Position on the Proposed Reform of the United Nations: ‘The Ezulwini Consensus’’ (7th Extraordinary Session of the Executive Council, Addis Ababa, 7 March 2005) accessed 1 December 2019. ibid., 6.

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munity’s response to genocide, war crimes, ethnic cleansing, and crimes against humanity’ at the 2009 General Assembly Debate on Implementing the Responsibility to Protect.619 Rwanda has affirmed R2P on several occasions, but has also stressed the necessity of putting it into practice.620 Rwanda also affirms a ‘moral authority and obligation’ of the international community to support states in fulfilling their primary responsibility.621 If a state fails to protect its citizens from mass atrocities, the international community should have a ‘responsibility to intervene’ when endorsed by the Security Council. Furthermore, Rwanda has argued that unilateral coercive measures should not be legitimised, emphasising that the country does not recognise a legally binding R2P. South Africa delivered statements that similarly define its understanding of R2P as a powerful political charge rather than a legal obligation.622 Thus, if even the strongest African proponents of R2P do not consider the principle to be legally binding and do not act accordingly, there is no obvious opinio juris and no state practice for R2P on the continent. (3)

The Americas

The following analysis concentrates on the attitudes and actions of Canada, Brazil, and the US towards R2P. (a) Canada

Canada, the ‘principal architect’623 of R2P, has made a significant contribution to its development by initiating the ICISS and by promoting the concept in the early 2000 s.

619 Eugène-Richard Gasana, ‘Statement by Rwanda at the United Nations General Assembly Interactive Dialogue on the ‘Responsibility to Protect: State responsibility and prevention’’ (New York, 11 September 2013) accessed 1 December 2019, 2. 620 ibid., 2; Olivier Nduhungirehe, ‘Statement by Rwanda at the United Nations General Assembly Interactive Dialogue on the Responsibility to Protect’ (New York, 8 September 2014) accessed 1 December 2019. 621 Gasana (n. 619), 11 September 2013, 1. 622 Compare Baso Sangqu, ‘Statement Delivered on Behalf of the Permanent Mission of South Africa to the United Nations at the General Assembly informal, interactive dialogue on the “Responsibility to Protect: Timely and Decisive Response”’ (New York, 5 September 2012) accessed 1 December 2019; Kingsley Mamabolo, ‘Statement by South Africa at the United Nations General Assembly Informal Interactive Dialogue on “The Responsibility to Protect: State Responsibility and Prevention”’ (New York, 11 September 2013) accessed 1 December 2019. 623 Irwin Cotler, ‘Forgetting Darfur’ Montreal Gazette (30 September 2008) accessed 1 December 2019.

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In April 2004, Canada submitted a paper to the UN High-Level Panel on Threats, Challenges, and Change624 which endorsed R2P and recommended that the panel accepts the findings and recommendations outlined in the ICISS report.625 The paper further asked the General Assembly to adopt a resolution highlighting the primary responsibility of individual states and a corollary responsibility of the international community to act in extreme cases in which a state is unable or unwilling to offer protection.626 The 2005 World Summit Outcome document affirmed both the individual responsibility of states and the secondary responsibility of the international community.627 Former Canadian Prime Minister Paul Martin called for a right to intervene under the R2P doctrine by stating that ‘[the international community] should have the legal right to intervene in a country on the grounds of humanitarian emergency’.628 He argued that this right should be limited to ‘situations of extreme humanitarian emergency’ characterised by a government unwilling or unable to protect its people from extreme harm as a result of internal war, repression, or state failure to prevent numerous unilateral intervention.629 Nevertheless, the former Prime Minister called R2P an ‘international guarantor of political accountability’ rather than a license for intervention.630 Several Canadian officials have reaffirmed this interpretation of R2P since the speech. In 2008, former Canadian Attorney General and Minister of Justice Irwin Cotler invoked R2P to mandate an international collective response to protect the population of Darfur from genocide.631 However, the Canadian government has been absent from the forefront in promoting R2P in the years since thic crisis. Canada did declare its ‘strong commitment to preventing and halting genocide, ethnic cleansing, war crimes, and crimes against humanity’ at the 2012 UN General Assembly informal interactive dialogue on ‘The Responsibility to Protect: Timely and Decisive Response’,632 but did not explicitly refer to R2P. 624 Heidi Hulan, ‘Canadian Non-Paper on the Responsibility to Protect and the Evolution of the United Nations’ Peace and Security Mandate’ (2004) accessed 1 December 2019. 625 ibid., 3. 626 ibid., 4. 627 ‘2005 World Summit Outcome’ (n. 105). 628 Paul Martin, ‘Address by Canadian Prime Minister Paul Martin to the General Assembly’ (New York, 22 September 2004) accessed 1 December 2019, 2. 629 ibid., 2. 630 ibid. 631 Cotler (n. 623). 632 These crimes are those associated with the R2P. Compare Permanent Mission of Canada to the United Nations, ‘Statement by Canada at the United Nations General Assembly informal, interactive dialogue on the ‘Responsibility to Protect: Timely and Decisive Response’’ (New York, 5 September

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However, former Canadian Defence Minister Peter MacKay delivered a statement with regard to R2P at the 49th Munich Security Conference in February 2013.633 According to him, R2P does not constitute a ‘template for action’ since the international community will rarely reach a consensus to take such actions.634 Nevertheless, he acknowledged R2P’s potential to contribute to an ‘evolving international norm around state behaviour’,635 emphasising that R2P has not yet attained the status of customary international law. Former Canadian Permanent Representative Guillermo Rishchynski in a statement to the UN General Assembly recalled the ‘collective responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ and stressed the need to improve international assistance for R2P.636 Since the 2015 federal election, the Liberal Party under Justin Trudeau have governed Canada, and it seems that Canada has renewed its commitment to R2P under this new administration. In sum, Canada has taken some measures to promote R2P. Nevertheless, its interim reluctance has demonstrated that there is no opinio juris and no state practice with regard to a legally binding R2P in Canada. (b) Brazil

In the early 2000 s, Brazil’s position was rather sceptical about R2P. For instance, the Minister of External Relations of Brazil Celso Amorim paid little attention to R2P in his speech at the 2005 World Summit, which many proponents of R2P have considered as a milestone towards its implementation.637 Although he admits that ‘new concepts such as […] the responsibility to protect merit an adequate place in our system’,638 he

2012) accessed 1 December 2019. 633 Peter G MacKay, ‘Minister MacKay’s Comments on the Responsibility to Protect at the Munich Security Conference’ (Munich, 3 February 2013) accessed 1 December 2019. 634 ibid. 635 ibid. 636 Guillermo Rishchynski, ‘Statement by Canada at the United Nations General Assembly Informal Interactive Dialogue on the Responsibility to Protect’ (New York, 8 September 2014) accessed 1 December 2019, 1 f. 637 Former Secretary-General Kofi Annan has referred to it as ‘a momentous step’. See Kofi Annan, ‘Prevention, Promotion and Protection: our Shared Responsibility’ (Lund University, Sweden, 24 April 2012) accessed 1 December 2019. 638 Celso Amorim, ‘Statement at the Opening of the General Debate of the 60th Session of the United Nations General Assembly’ (New York, 17 September 2005) accessed 1 December 2019, 3.

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expressed concern that solutions to future conflicts would solely focus on economic sanctions or military means without exhausting peaceful alternatives.639 During the plenary meeting of the General Assembly on Implementing the Responsibility to Protect, held on July 23rd, 2009, Permanent Representative of Brazil to the UN Maria Luiza Ribeiro Viotti declared that the implementation of R2P must be performed in a manner ‘fully consistent with the UN Charter’.640 She also commented on the legal status of R2P. R2P neither constitutes a ‘principle proper’ nor a ‘novel legal prescription’ from the point of view of Brazil.641 It is rather a ‘powerful political call’ that must be fulfilled by using the instruments available to the Security Council as enshrined in the UN Charter.642 Ribeiro Viotti also clearly stressed the strict chronology of the different elements of R2P, by pointing out that R2P is above all an obligation of the state, and that the international community shall only be responsible to take action if a state manifestly fails to fulfil its obligation.643 In her opening statement to the 66th Session of the UN General Assembly, former President of Brazil Dilma Rousseff made a remarkable statement: ‘Much is said about the responsibility to protect; yet we hear little about responsibility in protecting. These are concepts that we must develop together’.644 Afterwards, the government of Brazil developed a unique concept and presented the result in a Security Council debate on the protection of civilians in armed conflict in November 2011: RwP.645 Because ‘both concepts should evolve together, based on an agreed set of fundamental principles, parameters and procedures’,646 RwP was sought to complement rather than replace R2P. RwP proposes a strict line of political subordination and chronological sequencing of

639 ‘But it is an illusion to believe that we can combat the dysfunctional politics at the root of grave human rights violations through military means alone, or even economic sanctions, to the detriment of diplomacy and persuasion’. See ibid. 640 Maria Luiza Ribeiro Viotti, ‘Remarks at the Plenary Meeting of the General Assembly on the Responsibility to Protect’ (23 July 2009) accessed 1 December 2019, 2. 641 ibid., 3. 642 ibid. 643 ibid., 3–4. 644 Dilma Rousseff, ‘Statement at the Opening of the General Debate of the 66th Session of the United Nations General Assembly’ (New York, 21 September 2011) accessed 1 December 2019. 645 ‘Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General’ (11 November 2011), UN Doc. A/66/551–S/2011/701. 646 Maria Luiza Ribeiro Viotti, ‘Statement of Permanent Representative of Brazil to the United Nations Maria Luiza Ribeiro Viotti’ (9 November 2011) accessed 1 December 2019, 16.

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the three pillars of R2P.647 Due to Brazil’s concern over the potential abuse of R2P for purposes other than protecting civilians,648 RwP comprises a broad range of principles, parameters, and procedures that the international community should uphold when implementing R2P.649 Thus, the RwP concept focuses primarily on the third pillar of R2P. From Brazil’s perspective, the prevention of mass atrocities is the most important element of R2P.650 RwP proposes a catalogue of criteria that must be fulfilled before the Security Council may authorise any use of force. To name a few, all peaceful measures available in the protection of civilians must be exhausted and military measures must be proportional and not excessive in relation to the anticipated aims.651 The concept paper on RwP further stresses the necessity for enhanced mechanisms to control the implementation of Security Council Resolutions.652 In February 2012, a discussion on RwP was held at the UN which was organised by the Permanent Mission of Brazil and co-chaired by Brazil’s Foreign Minister Patriota and former UN Special Adviser for the Responsibility to Protect Edward Luck. The UN member states used the occasion to express their commitment to the R2P.653 Only Venezuela contested the concept of R2P by stating that ‘until today, there is no consensus on the scope and nature of the responsibility to protect’.654 Other member states and the 647 ‘Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General’ (n. 645), para. 6. The ‘three pillars’ refer to the three-pillar strategy proposed by Secretary-General Ban Ki-moon in his report about the implementation of R2P. Pillar one comprises the responsibility of each state to protect its population from genocide, war crimes, crimes against humanity and ethnic cleansing. The second pillar concerns international assistance and capacity-building and contains the commitment of the international community to encourage states in fulfilling their obligations under pillar one. Pillar three is about the ‘timely and decisive response’ of the international community in case of a State manifestly failing to fulfil its protection duties. Compare ‘Report of the Secretary-General. Implementing the Responsibility to Protect’ (n. 379), para. 11. 648 ‘Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General’ (n. 645), para. 10. 649 ibid., para. 11. 650 ibid., para. 11(a). 651 ibid., para. 11(c) and (f). 652 ibid., para. 11(h). 653 Peter Wittig, ‘Statement of Germany at the Informal Discussion on the “Responsibility while Protecting”’ (21 February 2012) accessed 1 December 2019, 1; William Awinador-Kanyirige, ‘Statement of Ghana at the Informal Discussion on the “Responsibility While Protecting”’ (21 February 2012), 1; United States, ‘Statement of the United States at the Informal Discussion on the ‘Responsibility While Protecting’’ (21 February 2012) accessed 1 December 2019; Macharia Kamau, ‘Statement of Kenya at the Informal Discussion on the “Responsibility While Protecting”’ (21 February 2012) accessed 1 December 2019, 2. 654 Jorge Valero, ‘Statement by the Bolivarian Republic of Venezuela at the Informal Discussion on the “Responsibility while Protecting”’ (21 February 2012) accessed 1 December 2019, 3.

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EU unanimously criticised RwP’s many limitations, such as the exclusive focus on the third R2P pillar,655 the strict chronological sequence, and the obligation to exhaust all peaceful means.656 However, all member states agreed that the debate on RwP encouraged further dialogue on R2P,657 and has thus contributed to its development. In particular, the Permanent Representative of Ghana, William Awinador-Kanyirige, argued for RwP and recognised the concept’s potential to strengthen R2P.658 Surprisingly, 2012 marked the developmental peak, but also the conclusion of Brazil’s efforts to implement RwP. After an informal UN General Assembly discussion on RwP in October 2012, the government of Brazil failed to draft a conceptual note responding to some of the most important criticisms.659 Although Brazilian officials continue to mention RwP when referring to R2P,660 Brazil has failed to refine its RwP proposal. The world then witnessed ‘Brazil’s enigmatic retreat’ from promoting RwP.661 Nevertheless, Brazil has demonstrated its commitment to R2P and its willingness to encourage the concept’s implementation. Its approach, however, also reveals that Brazil does not recognise a legally binding responsibility to protect civilians from mass atrocities. Brazil only accepts a political and moral responsibility, not a legal one.

655 This pillar comprises the ‘timely and decisive response of the international community in case of a state manifestly failing to fulfil its protection duties’. 656 Especially the Permanent Representative of the US undoubtedly declared: ‘We believe it is a grave error to equate ‘manifest failure’ with strict chronological sequence’. See United States, ‘Statement of the United States at the Informal Discussion on the ‘Responsibility While Protecting’’ (21 February 2012) accessed 1 December 2019. Compare also Wittig, ‘Statement of Germany at the Informal Discussion on the “Responsibility while Protecting” (n. 653), 1; European Union, ‘Statement of the European Union at the Informal Discussion on the “Responsibility While Protecting”’ (21 February 2012) accessed 1 December 2019, 2. 657 Wittig, ‘Statement of Germany at the Informal Discussion on the “Responsibility while Protecting” (n. 653), 2. 658 ‘It provides us a life-line, indeed an early opportunity to fine-tune the R2P concept’. See AwinadorKanyirige (n. 653), 21 February 2012, 2. 659 Oliver Stuenkel, ‘Brazil’s Enigmatic Retreat: The case of the Responsibility while Protecting (RwP).’ (1 August 2013) accessed 1 December 2019. 660 Compare Regina Maria Cordeiro Dunlop, ‘Statement by Brazil at the United Nations General Assembly Debate on ‘Responsibility to Protect: State responsibility and prevention’’ (New York, 11 September 2013) accessed 1 December 2019; Antonio de Aguiar Patriota, ‘Statement by Brazil at the United Nations General Assembly Informal Interactive Dialogue on the Report of the Secretary-General on ‘Fulfilling our collective responsibility: International assistance and the responsibility to protect’’ (New York, 8 September 2014) accessed 1 December 2019. 661 Stuenkel (n. 659).

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(c)

United States of America

The US has generally adopted a reserved attitude towards legally binding interventions for humanitarian purposes. In terms of humanitarian interventions, the US reserves its right to act on a case-by-case basis rather than being legally obliged to intervene. During the Bush Administration (2001–2009), the US was rather reluctant to adopt R2P. Steven Patrick, a former member of the Secretary of State’s policy planning staff, stated in a 2004 speech that the ‘rise of a nascent doctrine of ‘contingent sovereignty’ has been one of the striking developments of the past decade’.662 In this context, he affirmed that R2P ‘may devolve to the international community’ if a government fails to offer protection to its citizens.663 By stating that the US ‘must balance its interest in preventing suffering with its pursuit of other important goals and commitments’, he corroborated the US’s selective foreign policy.664 The US has refused to accept an obligation to intervene and thus seeks to uphold its freedom of action.665 American attitudes towards R2P clearly distinguish between the responsibility of the host state and the corollary responsibility of the international community. In a letter to all UN member states, former US Ambassador to the UN John Bolton endorsed the primary responsibility of each state, but rejected a corresponding legal responsibility of the international community.666 Furthermore, he refused to accept an obligation to intervene under international law, stating that member states ‘should avoid language that focuses on the obligation or responsibility of the international community and instead assert that we are prepared to take action’.667 According to Bolton, the responsibility of the international community constitutes a ‘moral responsibility’.668 During a Security Council Debate in June 2006, US delegate William Brencick insisted that the protection of people from mass atrocities is primarily determined by the actions of their governments rather than those of the international community.669

662 Stewart Patrick, ‘The Role of the U. S. Government in Humanitarian Intervention: Remarks to the 43rd Annual International Affairs Symposium, The Suffering of Strangers: Global Humanitarian Intervention in a Turbulent World, Lewis and Clark College’ (5 April 2004) accessed 1 December 2019. 663 ibid. 664 ibid. 665 Theresa Reinold, ‘The United States and the Responsibility to Protect: Impediment, Bystander, or Norm Leader?’ (2011) 3 Global Responsibility to Protect 61, 68. 666 John R Bolton, ‘Letter from John R. Bolton, Representative of the United States of America to the UN, to Jean Ping, President of the UN General Assembly’ (30 August 2005) accessed 1 December 2019. 667 ibid. 668 ibid. 669 5476th Meeting of the Security Council (28 June 2006), UN Doc. S/PV.5476.

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The Obama administration is to be credited for pushing forward the debate about R2P in the US at least on a rhetorical level. At a UNSC meeting on January 29th, 2009, Permanent Representative to the UN Susan Rice endorsed the responsibility of the international community to protect populations from violations of IHL and declared that ‘the United States takes this responsibility seriously.’670 In a speech in June 2009, Susan Rice reiterated US support for R2P and emphasised her personal commitment to the concept.671 According to her, R2P ‘represents an important step forward in the long historical struggle to save lives and guard the wellbeing of people endangered by conflict’.672 She further warns of conflating R2P ‘with an unfettered right to intervention’. R2P should rather offer ‘a range of responses that have nothing to do with intervention’.673 In July 2009, US ambassador to the UN Rosemary DiCarlo delivered a clear statement in favour of R2P. She argued that R2P complements important principles of IHL and international human rights law and reflects the willingness of the international community to recognise past failures.674 By including a reference to R2P in its National Security Strategy, the US reconfirmed its commitment to the concept and declared its readiness to take diplomatic, humanitarian, financial, and in extreme cases, military action to prevent and respond to genocide and mass atrocities.675 More explicit affirmation of support for R2P can be found in the State Department’s first ‘Quadrennial Diplomacy and Development Review’, issued in January 2011. It states that: We must recognize the unique horror of genocide and mass atrocity … We must engage the full weight of our diplomatic efforts earlier in anticipation of potential – rather than in response to actual – violence, atrocities or genocide. Consistent with the US having joined others in endorsing the concept of ‘Responsibility to Protect,’ situations that threaten genocide or other mass atrocities warrant very high priority for prevention. Such extreme violence undermines our security by fueling state and regional instability, prolonging the effects of violence on societies and entrenching murderous regimes that perpetuate other threats. The moral values we cherish are breached, and the legal

670 Susan Rice, ‘Statement by the United States of America at the United Nations Security Council Meeting on ‘Respect for International Humanitarian Law’’ (New York, 29 January 2009) accessed 1 December 2019, 2. 671 Susan Rice, ‘Keynote Adress to the 39th International Peace Institute Vienna Seminar on Peacemaking and Peacekeeping’ (Vienna, 15 June 2009) accessed 1 December 2019, 51. 672 ibid. 673 ibid. 674 Ambassador of the United States Rosemary DiCarlo (n. 201), 23 July 2009, 17. 675 The White House, ‘United States National Security Strategy’ (May 2010) accessed 1 December 2019, 48.

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and normative structures we champion and depend upon for continued order are undermined.676 Referring to the 2011 rebellion in Libya, which was violently terminated by the Libyan government, Susan Rice claimed that Libya had failed to fulfil its responsibility to protect its population.677 During the UNSC Debate on Brazil’s proposal of a RwP in February 2012, the US delegate described the US as a ‘strong supporter of R2P’ and declared the nation’s readiness to work with international partners to advance R2P.678 In sum, the US position falls short of a commitment to a legal obligation to protect populations from mass atrocities. The US repeatedly praised the ‘moral force’ of R2P,679 which characterises the American attitude: an acceptance of a moral responsibility ­rather than a legal obligation. (d) Remarks

Several conclusions can be drawn from this analysis. Firstly, it has become apparent that Canada, Brazil, and the US have all been engaged in promoting the R2P concept but have taken different strategies. Furthermore, although all states appreciate the moral force of the concept, they do not consider R2P to be legally binding. The most important achievement of Canada regarding the concept has been the establishment of the ICISS that brought R2P to life. The subsequent attitudes and actions of Canada towards R2P have been ambiguous. Canada has been at the forefront of promoting R2P until 2008, but in the years since, it appeared that the country abandoned its endeavour to establish R2P in international law. One possible explanation for this development could be that the composition of the Canadian Cabinet has undergone some changes between 2006 and 2015.680 The Conservative Party of Canada had been the governing party in Canada from 2006 to 2015 while the Liberal Party of Canada formed the official opposition between 2006 and 2011. However, the Liberal Party was replaced by the New Democratic Party in 2011, which achieved its best ever electoral result (31 % of the vote). As a member of the ICISS, former leader of the Liberal Party 676 State Department, ‘Leading through Civilian Power: The First Quadrennial Diplomacy and Development Review (QDDR)’ (2011) accessed 1 December 2019, 128 f. 677 Susan Rice, ‘Ambassador Rice on UN General Assembly Libya Resolution’ (1 March 2011) accessed 1 December 2019, 1. 678 United States, ‘Statement of the United States at the Informal Discussion on the ‘Responsibility While Protecting’’ (n. 656). 679 Compare Rick Barton, ‘Statement by the USA at the United Nations General Assembly Interactive Dialogue on Responsibility to Protect’ (New York, 12 July 2011) accessed 1 December 2019. 680 Compare table 1–3, appendix, p. 255 f.

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of Canada and leader of the Official Opposition of Canada Michael Ignatieff has tried to enhance the development of the R2P. After the end of his term, Canada appeared to have largely lost interest in the concept of the R2P. Since 2015, it seems that Canada has renewed its commitment to R2P, but nevertheless, there is no opinio juris and no state practice with regard to R2P within the state. Brazil’s position on R2P has gradually changed since the initiation of R2P in 2001. The country paid little attention to the concept until a General Assembly plenary meeting on the implementation of R2P in 2009. On this occasion, Brazil’s then Permanent Representative to the UN viewed R2P as a powerful political call to action and stressed the differences between primary and secondary responsibilities of states. Brazil’s proposal on RwP was intended to complement R2P by including a catalogue of criteria that must be fulfilled before the UNSC may authorise the use of force. The proposed criteria include the exhaustion of all peaceful means and proportionality of military measures. However, after some criticism was raised by other states, Brazil has failed to further develop its RwP concept. Nevertheless, the state has made a significant contribution and stimulate discussion on R2P. The RwP concept has been an attempt to concretise the scope of the third pillar of R2P, namely the ‘timely and decisive response of the international community in case of a state manifestly failing to fulfil its protection duties’.681 However, it remains doubtful whether the RwP concept can really contribute to the development of R2P. As the member states’ remarks suggest, further analysis of the concept reveals its several incongruities with R2P. The mandatory chronological order is inconsistent with the preparedness of states to take collective action ‘in a timely and decisive manner’,682 as stipulated in the World Summit Outcome document.683 The exclusive focus on the third pillar also narrows the original concept by disregarding the obligations under pillars one and two. Although Brazil did not intend to replace R2P by RwP, any proposal to complement R2P should pay more attention to the responsibilities of each state and the responsibility of the international community to assist states in fulfilling their obligations. Therefore, RwP did not contribute to the development of the substantive content of R2P but has affirmed Brazil’s willingness to advance the concept. Nevertheless, the country does not consider R2P to be legally binding. The US has initially been sceptical of R2P and has clearly stressed that every action the country will pursue regarding the protection of people will be balanced with its pursuit of other important goals. The country has also frequently invoked the differences between the primary and secondary responsibilities of states. States are legally 681 ‘Report of the Secretary-General. Implementing the Responsibility to Protect’ (n. 379), para. 10(c). 682 ‘2005 World Summit Outcome’ (n. 105), para. 139. 683 Andreas S Kolb, ‘The Responsibility to Protect (R2P) and the Responsibility while Protecting (RwP): Friends or Foes?’ (2012) accessed 1 December 2019, 13.

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obligated to protect their own populations, while the responsibility of the international community rather constitutes a moral duty. Explicit support for R2P in the US initiated with the Obama presidency in 2009; since then, the US has affirmed the concept on numerous occasions. In the aftermath of the NATO intervention in Libya, President Barack Obama applauded the NATO action that was aimed to fulfil its ‘additional responsibility of protecting Libyan civilians’.684 He also justified the involvement of US military forces by appealing to national interests that were at risk.685 While pursuing their narrow national interests, the US describes its actions in terms of moral purposes. R2P has thus been invoked by the US to justify intervention for reasons of national interests and national security. Overall, there is no unified position towards R2P within the Americas, but it has become apparent that neither an opinio juris nor corresponding state practice exists. dd)

Opponents of the responsibility to protect

This section focuses on Russia’s and China’s positions towards R2P, because these two permanent members of the UNSC are among the most vehement opponents of R2P. (1) Russia

Russia has voiced deep disagreement regarding R2P686 and has denied the existence of widespread support for the doctrine within the international community in April 2005.687 Claiming the necessity for further discussion in the General Assembly, Russian delegate Ilya Rogachev argued in 2005 that it was premature for the Security Council to adopt R2P.688 Nevertheless, the Russian Federation abstained from vetoing Resolution 1674, which reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome document regarding R2P. In August 2008, Russia launched military strikes against Georgia in support of South Ossetian separatists during the Georgian-Ossetian crisis. Russian Foreign Minister Sergey Lavrov tried to justify the intervention by claiming that Russia acted to protect Russian citizens in South Ossetia:

684 Barack Obama, ‘Remarks by the President in Address to the Nation on Libya’ (Washington D. C. 28 March 2011) accessed 1 December 2019. 685 ‘But when our interests and values are at stake, we have a responsibility to act.’ See ibid. 686 Verlage, Responsibility to Protect (n. 352), 73. 687 87th Plenary Meeting (7 April 2005), UN Doc. A/59/PV.87, 5. 688 5319th Meeting of the Security Council (9 December 2005), UN Doc. S/PV.5319, para. 19.

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According to our Constitution there is also responsibility to protect – the term which is very widely used in the UN when people see some trouble in Africa or in any remote part of other regions. But this is not Africa to us, this is next door. This is the area, where Russian citizens live. So the Constitution of the Russian Federation, the laws of the Russian Federation make it absolutely unavoidable to us to exercise responsibility to protect.689 It remains questionable whether Lavrov intended to evoke to R2P in his statement. Apart from that, his reasoning does not illuminate Russia’s overall commitment to R2P, since the concept is not applicable in this case. R2P, as understood by the ICISS, encompasses the responsibility of a sovereign state to protect the people within its own borders and the responsibility of other states to assist and to take appropriate action if a state manifestly fails to do this. R2P is not intended to justify the use of force by an individual country acting to protect its nationals residing outside its borders.690 Correspondingly, by arguing that R2P was not invoked here, the application of the concept in this instance was widely decried by international law scholars.691 Russian officials have nonetheless affirmed the primary responsibility of individual states to protect their populations from gross human rights violations on several occasions.692 However, in contrast, Russia is cautious about affirming a corollary responsibility of the international community. Although admitting that R2P ‘has enormous potential for change’,693 Russia repeatedly asserted that there is an inherent risk of the concept being abused.694 Notably, the 2011 NATO intervention in Libya led Russia to condemn 689 Sergey Lavrov, ‘Interview by Minister of Foreign Affairs of the Russian Federation Sergey Lavrov to BBC’ (Moscow, 9 August 2008) accessed 1 December 2019. 690 Gareth Evans, ‘Russia, Georgia and the Responsibility to Protect’ (2009) 1(2) Amsterdam Law Forum 28, 25 f. 691 Roy Allison, ‘Russia Resurgent? Moscow’s Campaign to ‘Coerce Georgia to Peace’’ (2008) 84(6) IA 1145, 1152–1154; Global Centre for the Responsibility to Protect, ‘Global Centre for R2P’s Background Note on Georgia and Russia’ (2008) accessed 1 December 2019; Evans, ‘Russia, Georgia and the Responsibility to Protect’ (n. 690), 25 f.; Mark V Vlasic, ‘Europe and North America’ in Irwin Cotler and Jared Genser (eds), The Responsibility to Protect: The Promise of Stopping Mass Atrocities in our Time (OUP 2012), 172 f. 692 Mikhail Margelov, ‘Statement by Russia at the United Nations General Assembly Debate on Implementing the Responsibility to Protect’ (New York, 23 July 2009) accessed 1 December 2019; Karev (n. 561), 5 September 2012. 693 Margelov (n. 692), 23 July 2009. 694 ‘It is unacceptable that military interventions and other forms of interference from without which undermine the foundations of international law based on the principle of sovereign equality of states, be carried out on the pretext of implementing the concept of “responsibility to protect”.’ See Russian Federation, ‘Concept of the Foreign Policy of the Russian Federation’ (18 February 2013) accessed 1 December 2019. Compare also Sergey Karev, ‘Statement by Russia at

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Western powers for abusing R2P in the pursuit of geopolitical interests.695 According to Russia, R2P is not a ‘reliable instrument to deal with violence’.696 Overall, Russia neither recognises R2P in a legal nor in a moral or political sense. Thus, there exists no opinio juris and no state practice regarding the concept of R2P in the Russian context. (2) China

China belongs to the camp of R2P’s fiercest opponents as far as the responsibility of the international community is concerned. The primary responsibility of each state to protect its own population, by contrast, is widely accepted.697 The third pillar of R2P contradicts China’s foreign policy doctrine, which is based on a strict interpretation of the principles of non-intervention and non-use of force as enshrined in its ‘Five Principles of Peaceful Coexistence’.698 Despite China’s affirmative vote on the World Summit Outcome document and on Resolution 1674 endorsing R2P, this did not accompany a change in its attitude towards outside interference in intra-state conflicts. In a 2007 Security Council debate on the protection of civilians in armed conflict, Chinese representative Liu Zhenmin declared that a military intervention requires consent of the host government.699 The provision of humanitarian assistance should equally be dependent on the consent of the host country in China’s view.700 In 2012, Dr. Ruan Zongze, the Vice President of the China Institute of International Studies, released a concept paper entitled ‘Responsible Protection: Building a Safer the United Nations Security Council Open Debate on the Protection of Civilians in Armed Conflict’ (New York, 25 June 2012) accessed 1 December 2019; Karev (n. 561), 5 September 2012. 695 Vitaly Churkin, ‘Statement by Russia at the United Nations Security Council Meeting on the explanation of vote on the draft resolution on the referral of the situation in Syria to the ICC’ (New York, 22 May 2014) accessed 1 December 2019. 696 Vitaly Churkin, ‘Statement by Russia at the United Nations General Assembly Informal Interactive Dialogue on the Responsibility to Protect’ (New York, 11 September 2013) accessed 1 December 2019. 697 Compare People’s Republic of China, ‘Position Paper of the People’s Republic of China on the United Nations Reforms’ (7 June 2005) accessed 1 December 2019. 698 These five principles are: mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence in developing diplomatic relations and economic and cultural exchanges with other countries. They are enshrined in the preamble to the Chinese Constitution. See Constitution of the People’s Republic of China 4 December 1982. 699 5781st Meeting of the Security Council (20 November 2007), UN Doc. S/PV.5781, 10. 700 People’s Republic of China, ‘Position Paper of the People’s Republic of China at the 66th Session of the United Nations General Assembly’ (10 September 2011) accessed 1 December 2019.

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World’701, which offered a reinterpretation of the third pillar of R2P. Although ‘Responsible Protection’ (RP) has not yet been adopted as an official Chinese position on R2P, Zongze’s approach carries some weight because the China Institute of International Studies is a research institute and think tank directly controlled by China’s Ministry of Foreign Affairs.702 Zongze attempted to posit a new, narrower interpretation of the concept, claiming that R2P has become a ‘synonym of regime change’ that is ‘liable to be abused’.703 RP is based on six elements. Firstly, Zongze defined the personal scope of RP: the ‘object[s]’ of protection are innocent civilians rather than specific political parties or armed forces.704 The second element is the right bearer of RP. The government of the host state bears the primary responsibility to protect its citizens. The Security Council shall be the only institution authorised to exercise this duty as far as the responsibility of the international community is concerned. The third element stipulates strict limitations on the means of protection. In this regard, diplomatic and political means are prioritised categorically over military ones. In terms of the fourth element of his RP concept, Zongze states that the purpose of protection should be the mitigation of humanitarian catastrophes. Fifth, ‘protectors’ shall be responsible not only for reacting to humanitarian disasters, but also for the state’s post-conflict reconstruction.705 This criterion is reminiscent of the responsibility to rebuild, which the ICISS originally had proposed in its conceptualisation of R2P. Finally, Zongze proposes that the UN should establish mechanisms of supervision, outcome evaluation, and post factum accountability to survey the means, the scope, and the results of ‘protection’.706 In summation, China’s attitude towards R2P has not changed significantly since the concept emerged in 2001. Although China has demonstrated its willingness to act as a norm pioneer by developing RP,707 its voting behaviour in the Security Council demonstrated that it is unwavering in its core principles. Due to Chinese and Russian vetoes, a resolution on the Syrian humanitarian crisis could not be passed until 22 February

701 Ruan Zongze, ‘Responsible Protection: Building a Safer World’ [2012] CIIS 36 accessed 1 December 2019. 702 See China Institute of International Studies, ‘CIIS in Brief ’ accessed 1 December 2019. 703 Thus, Zongze accuses those states participating in the 2011 NATO intervention in Libya of having attempted regime change rather than solely protecting civilians. Compare Zongze (n. 701). 704 ibid. 705 ibid. 706 ibid. 707 Andrew Garwood-Gowers, ‘China’s “Responsible Protection” Concept: Reinterpreting the Responsibility to Protect (R2P) and Military Intervention for Humanitarian Purposes’ (2015) 5(2) AsianJIL 1, 27.

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2014.708 Thus, China does not accept a responsibility of the international community to intervene in cases of gross human rights violations within a state. However, the responsibility of the host state is viewed as uncontroversial. (3) Remarks

This analysis has demonstrated that both Russia and China harbour reservations regarding the R2P concept. Russia has always been sceptical of the use of force for human protection purposes. The state frequently wields its veto in the UNSC, rendering Russia, along with its remaining allies, isolated from the rest of the international community. Russia had argued that it was premature for the UNSC to take up the concept of R2P in 2005. However, in 2008, R2P was used to justify Russian military operations against Georgia. The international community was quick to reject this argumentation because R2P is not intended to justify the use of force by a country acting to protect its nationals residing outside of its borders. Furthermore, Russia itself has repeatedly stated that solely the primary responsibility of states to protect their populations within their territories is firmly embedded in international law. The country is rather cautious about affirming a corollary responsibility of the international community. Therefore, Russia’s reference to the concept of R2P to protect nationals in Georgia is contradictory. Russia has also frequently emphasised the inherent risk of the concept being abused, particularly in the aftermath of the 2011 NATO intervention in Libya. In the past, Russia has proven that it pursues its own national interests without Western interference. In an address to the Russian Federal Assembly, President Vladimir Putin has criticised ‘unfriendly steps against Russia such as […] bringing NATO infrastructure closer to the Russian border’,709 which emphasises Russian reservations against the NATO enlargement. Russia is generally not willing to accept any constraints on its foreign policy, and therefore does not recognise the concept of R2P. China similarly accepts the primary responsibility of individual states but rejects a corresponding responsibility of the international community. China has frequently argued that the legality of any military action or humanitarian assistance in a country should be strictly dependent upon the consent of the state concerned. This perspective is clearly inconsistent with the fundamental idea of R2P because the secondary responsibility of the international community is relevant when a state is unwilling or unable to prevent its population from the most severe crimes. A state that is unwilling to offer protection to its citizens would surely not accept an intervention of foreign states intending to fulfil 708 Al Jazeera America, ‘Russia, China Vote for UN Humanitarian Resolution on Syria’ (22 February 2014) accessed 1 December 2019. 709 Vladimir Putin, ‘Presidential Address to the Federal Assembly’ (Moscow, 1 March 2018) accessed 1 December 2019.

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their protection duties. However, any action under R2P depends on the authorisation by the UNSC. China has been particularly reluctant to endore R2P in the aftermath pf the 2011 military intervention in Libya. The country views R2P as a concept at risk of being abused, and has criticised Western ‘new interventionism’ in the guise of R2P and humanitarian intervention.710 Statements by Chinese officials and China’s concept of RP reveal that the country believes R2P undermines state sovereignty, and therefore the state rejects the secondary responsibility of states under R2P. In the opinion of the author, R2P constitutes a completely new and innovative concept that balances the sovereignty of states and intervention for human protection purposes that is strictly dependent on prior authorisation by the UNSC. In conclusion, both Russia and China do not recognise R2P as customary international law, and no opinio juris or corresponding state practice with respect to these states exists. b)

Emerging norm of international law

The ICISS report, and more recently the High Level Panel on Threats, Challenges and Change,711 have referred to R2P as an ‘emerging norm’ of international law.712 This characterisation is ‘overoptimistic and over pessimistic at the same time’ because while some elements of the concept are anchored in international law, others are so new that a relevant practice has not yet emerged.713 In this context, two important questions arise: what was the intention of the ICISS when drafting R2P and how is R2P best understood? Since the establishment of R2P, each document that referred to the concept has stressed that R2P should not be equated with a right to unilateral intervention in another state. Therefore, applying military means under the secondary responsibility of the international community is strictly dependent upon the authorisation by the UNSC, or acts of self-defence. Although one might also think of political, moral, or social norms, an ‘emerging norm of international law’ invariably refers to a legal norm. The secondary responsibility does not yet constitute a norm of customary international law, and it has not yet become apparent that such a norm will emerge in the near future. However, it is questionable whether this development is necessary in that it would undermine the UN Security system. There710 Zongze (n. 701). 711 The High-Level Panel is an Expert Committee established by Kofi Annan in the aftermath of the 2003 American invasion in Iraq. See section C. I. 2, p. 79 f. 712 ‘We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent’. See ‘Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change’ (n. 362), para. 203. 713 Stahn (n. 297), 110.

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fore, reforms of the UNSC are required to prevent its persistent deadlock. R2P is best understood as a powerful political call for states to act. As such, its initiation has been an important step, because its strong language admonishes the international community to protect people, if their own state fails to do so. Therefore, R2P does not constitute an emerging norm of international law. c) Conclusion It can be determined from this section that even the staunchest proponents of R2P do not recognise a legally binding responsibility to protect populations from mass atrocities taking place in other countries. While accepting the responsibility to protect their own civilians, all states are reluctant to affirm a corollary obligation to intervene if a state is manifestly failing to fulfil its responsibility towards its population. States such as France and the UK seem to recognise a political responsibility to protect populations at risk of mass atrocities, and a right to humanitarian intervention. However, this responsibility cannot be equated with a legal obligation to act. Russia and China as long-standing opponents of R2P do even not acknowledge a political responsibility to intervene in case of gross violations of human rights in a particular country. Russia invariably pursues its own national interests, and China is particularly reluctant to endorse the use of force against the will of a state. Thus, there is no opinio juris and no common, consistent, and concordant state practice to invoke R2P by acting in cases where a state has manifestly failed to protect its population or is in fact the perpetrator of these crimes. On the whole, R2P as a norm has not yet attained the status of customary international law. Nevertheless, some elements of the concept do have bases in the existing body of international law. Hence, the notion of ‘emerging norm of international law’ does not appear suitable for describing its legal character. The primary responsibility under R2P is not ‘emerging’; it is already firmly embedded in the discourse concerning international peace and security. Therefore, the following sections distinguish between the primary and the secondary responsibility as embraced by R2P to illustrate the current legal status of these elements.

2.

Legal status of the primary responsibility

The responsibility of individual states to protect their populations is well-embedded in existing international law, particularly in international criminal law and international human rights law.714 According to the CPPCG, state parties are admonished to take the

714 Glanville, ‘The Responsibility to Protect Beyond Borders’ (n. 359), 3.

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steps necessary to prevent and to punish genocidal acts.715 Because the overwhelming majority of states have ratified the convention, it reflects customary international law.716 The ICCPR obliges state parties to guarantee, inter alia, the right to life [Article 6(1)] and the right to liberty and security of person [Article 9(1)] to people under their jurisdiction under international human rights law. Article 6(3) explicitly requires state parties to fulfil their obligations under the provisions of the CPPCG. The ECHR,717 the African Charter on Human and Peoples’ Rights,718 the American Convention on Human Rights,719 the Asian Human Rights Charter,720 and the Victorian Charter of Human Rights and Responsibilities in Austrialia,721 also require state parties to respect the human rights of people within their jurisdiction. In conclusion, the responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity is a well-established principle which applies to every state in the world. Emphasising this obligation, the ICISS may rely on existing international law when establishing the legal nature of R2P.722

3.

Legal status of the secondary responsibility

The secondary responsibility of the international community is less established in existing international law than the primary responsibility.723 In the case of Bosnia-Herzegovina v. Serbia, the ICJ elaborated on the preventive dimension of the Genocide Convention.724 The ICJ asserted the direct obligation of state parties to prevent genocide and to refrain from committing genocide by themselves.725 According to the Court, the obligation to prevent genocide is ‘one of conduct and not one of result’,726 which emphasises that a state is under no obligation to succeed, but rather has the responsibility to employ all appropriate means to prevent genocide. Therefore, responsibility is incurred ‘if the state manifestly failed to take all measures to prevent 715 716 717 718 719 720 721 722 723 724 725 726

Convention on the Prevention and Punishment of the Crime of Genocide (n. 341), Articles 1 and 5. Arbour (n. 496), 450. Council of Europe (n. 117). African Charter on Human and Peoples’ Rights (n. 118). American Convention on Human Rights, “Pact of San Jose”, Costa Rica (n. 118). Asian Human Rights Charter (17 May 1998). Charter of Human Rights and Responsibilities Act 2006 (25 July 2006), Act No. 43/2006. Compare Louise Arbour, who argued: ‘If the responsibility to protect doctrine were primarily designed to assert the responsibility of states vis-à-vis their own people, then it would be too narrowly framed and essentially do no more than replicate existing international law.’ See Arbour (n. 496), 458. Glanville, ‘The Responsibility to Protect Beyond Borders’ (n. 359), 4. Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ( Judgement) (2007), ICJ Rep 43. ibid., paras. 165–166. ibid., para. 430.

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genocide which were within its power, and which might have contributed to preventing the genocide’.727 In this context, the Court refers to the notion of ‘due diligence’ and uses several parameters to assess whether a state has fulfilled its duties in the context of genocide prevention.728 Firstly, the court invokes the state’s capacity to effectively influence the actions of persons likely to commit, or who are already committing, genocide.729 The geographical distance between the state concerned and the scene of events, as well as the strength of the political links between the authorities of that state and the main actors in the events, must be considered.730 The second parameter involves a state’s individual contribution to collective action by several states.731 The ICJ further elaborates upon the temporal component of a state’s obligation to prevent and the corresponding duty to act. These duties are assigned ‘at the instant that the state learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’.732 Therefore, state parties of the CPPCG are under an obligation to cooperate to prevent the onset of genocide. This ICJ judgement is restricted to a consideration of the crime of genocide and does not provide legal grounds for an obligation to protect populations against the three other crimes associated with R2P, namely war crimes, ethnic cleansing, and crimes against humanity. War crimes are referenced in the four Geneva Conventions and Article 8(2) of the Rome Statute; state parties to these treaties are required to refrain from committing this crime. Ethnic cleansing is not defined in the Rome Statute, the convention solely prohibits genocide and prohibits ‘[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds […]’733 as a crime against humanity. International law also lacks a specialised convention in terms of crimes against humanity. It is prohibited under Article 7 of the Rome Statute, and thus state parties to the statute are, in accordance with Article 86 of the Rome Statute, required to cooperate with the court in its investigation and prosecution. An explicit duty to prevent war crimes, ethnic cleansing, and crimes against humanity does not exist. Nevertheless, the perpetration of these crimes constitutes breaches of 727 ibid. 728 ibid. 729 ibid. 730 ibid. 731 ibid. 732 ibid., para. 431. 733 Rome Statute of the International Criminal Court (n. 342), Article 7(1)(h).

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peremptory norms.734 According to Article 41(1) of the Draft Articles on State Responsibility, adopted by the International Law Commission (ILC) in 2001,735 ‘states shall cooperate to bring an end through lawful means any serious breaches’ of the peremptory norms of international law.736 A duty to prevent these crimes cannot be established for at least two reasons. Firstly, the ILC Draft Articles are not considered to be legally binding. Furthermore, they only require states to end violations of the peremptory norms of international law; a duty to prevent is not equally articulated. In sum, recent developments in international law have demonstrated the emergence of an obligation to prevent genocide. The prevention of the other atrocities under R2P is not yet part and parcel of international law, but a corresponding duty is emerging. In conclusion, the secondary responsibility is significantly less established in existing international law than the primary responsibility of each state.

4. Conclusion As the analysis of this chapter has demonstrated, R2P has not yet attained the status of customary international law. R2P is best articulated as a political approach combining several developments in international law in a single concept, being neither embodied in an international treaty nor constituting a general principle of law or an emerging norm of international law.737 The purpose of R2P is not to create new law, but to clarify and implement existing legal principles. Therefore, R2P’s innovative dimension lies primarily in its new conceptual approach.738 It provides a new framework for existing treaty law enshrined in the UN Charter and customary international law such as the Genocide Convention,739 and the ICC’s Rome Statute.740 R2P is innovative in establishing a relation between its different types of bearers.741 The primary responsibility to protect a population lies first and foremost with every state; the corollary responsibility of the international community is subsidiary and does not come into action before a state has failed to offer protection to its citizens. 734 Glanville, ‘The Responsibility to Protect Beyond Borders’ (n. 359), 26. 735 The ILC is a legal expert body whose main task is the codification and progressive development of international law. Its drafts are not legally binding. See Crawford (n. 479), 194. 736 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (n. 295). 737 Lothar Brock, ‘Von der “humanitären Intervention” zur “Responsibility to Protect”: Kriegserfahrung und Völkerrechtsentwicklung seit dem Ende des Ost-West-Konflikts’ in Andreas Fischer-Lescano and others (eds), Frieden in Freiheit: Festschrift für Michael Bothe zum 70. Geburtstag (Nomos 2008), 28. 738 Peters, ‘The Security Council’s Responsibility to Protect’ (n. 504), 9. 739 Convention on the Prevention and Punishment of the Crime of Genocide (n. 341). 740 Rome Statute of the International Criminal Court (n. 342). 741 Peters, ‘The Security Council’s Responsibility to Protect’ (n. 504), 9 f.

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R2P does not entail rights and duties by itself but is rather based on existing international law. The ICISS already seems to suggest a moral responsibility rather than a legally binding norm by using the notion of ‘responsibility’ instead of ‘obligation’. Furthermore, there is no international mechanism for enforcing violations of R2P. However, such state behaviour may entail legal consequences when it involves a violation of international law. Since 2006, the Security Council has referred to R2P in various resolutions, thus reaffirming its dedication to the concept.742 The Security Council invariably invokes Chapter VII of the UN Charter as legal justification when authorising military measures, and additionally refers to R2P in some cases. This practice reveals the general attitude towards the concept; R2P is not understood as entailing legal consequences by itself, but rather represents a powerful political call for states to act. In ‘[u]nearthing, interpreting, and crystallizing the obligation to act in the face of mass atrocity crimes’,743 R2P represents a framework for the prevention of and the reaction to major human rights abuses. Taking this function into consideration, R2P is recognised by the vast majority of nations as a declaration of common values of the international community.744 Thus, R2P is so far best understood as a political commitment towards already existing legal obligations. Nevertheless, R2P may serve as catalyst for the progressive development of international law if states have the political will.745 As Peter Hilpold observed, the potential of the concept ‘is currently laid bare only to a very limited extent’.746

742 For an enumeration of the UN Security Council Resolutions with reference to the R2P see Global Centre for the Responsibility to Protect (n. 463). 743 Rosenberg (n. 310), 448. 744 Kreuter-Kirchhof (n. 296), 377. 745 ibid. 746 Hilpold, ‘From Humanitarian Intervention to the Responsibility to Protect’ (n. 360), 33.

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D.

The impacts of climate change as potential crimes under R2P

This section discusses the question of whether R2P could be applied to the impacts of climate change. The potential of subsuming the consequences of climate change under the traditional scope of R2P is assessed in the first step of the analysis. The determination of whether there is reason to believe that the devastating consequences of climate change can amount to crimes under R2P is based on the facts and estimations outlined in section A II. Because the charges of these crimes are substantiated by the ICC, nothing in this dissertation should be interpreted as a finding that those atrocities in fact occurred. The analysis rather argues that there are reasonable grounds to believe that crimes within the jurisdiction of the ICC have occurred. The possible instigators of R2P identified in the 2001 ICISS report included ‘overwhelming natural or environmental catastrophes where the state concerned is either unwilling or unable to cope or call for assistance and significant loss of life is occurring or threatened’.747 However, the 2005 World Summit Outcome document limited the scope of R2P to the atrocities of genocide, crimes against humanity, war crimes, and ethnic cleansing.748 There are generally two different types of events that may result in the application of R2P. On the one hand, states that emit GHGs or fail to adopt adaptation or mitigation policies and thereby contributing to the devastating impacts of climate change could commit one of the aforementioned crimes. On the other hand, states that fail to protect their populations from natural disasters as a result of global warming may be held accountable as well. The following section analyses the question of whether and to what extent the impacts of climate change could constitute one of the four aforementioned crimes, and also identifies the respective perpetrator.

I. Genocide Firstly, the devastating impacts of climate change may actually amount to genocide. In 2010, British international lawyer and founder of ‘Earth Law Alliance’ and ‘The Earth Community Trust’, Polly Higgins, submitted a proposal to the ILC to include the crime of ‘ecocide’ as the fifth international core crime under the Rome Statute alongside the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.749

747 International Commission on Intervention and State Sovereignty (n. 13), XII. 748 ‘2005 World Summit Outcome’ (n. 105), para. 138. 749 The submission was published as Chapters 5 and 6 in her book ‘Eradicating Ecocide’. See Polly Higgins, Eradicating Ecocide: Exposing the Corporate and Political Practices Destroying the Planet and Proposing the Laws to Eradicate Ecocide (2nd edn, Shepheard-Walwyn Publishers, Ltd 2016), 61–92.

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According to Higgins, ‘ecocide’ refers to the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.750 Because the proposal was rejected, the crime of ‘ecocide’ does currently not exist in international law. Therefore, although the disastrous consequences of climate change may undoubtedly be defined as ‘ecocide’ in the terms of Higgins’ proposal, this analysis focuses on the question of whether the crime of genocide is applicable in this case. The crime of genocide is referred to in the 1948 Genocide Convention, the Statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), and in the Rome Statute.751 According to the convention and the three statutes, the perpetration of genocide necessitates one of the acts enumerated in Article 6(a)-(e) of the Rome Statute to be committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.752 GHG emissions are commonly accepted to be the cause for global warming and climate change, in that GHG emitters inflict environmental damage and destroy natural resources that are indispensable to the survival of some populations.753 Such behaviour may be qualified as ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ according to Article 6(c) of the Rome Statute. However, the destruction of the group’s conditions of life is not committed with the intent to destroy at least part of a specific group. According to Article 30(2) and (3) of the Rome Statute, the mens rea in international law, the mental element, requires that the perpetrator means to cause a particular consequence or is aware that it will occur in the ordinary course of events.754 Emitters do not seek to destroy a certain group and are not aware that the extermination of a group will occur in the ordinary course of events. The world’s largest GHG emitters, notably China and the US,755 purely produce CO2 to drive economic growth. If countries are to remain competitive in the quickly globalising world economy, they must minimise production costs to offer their products at a low cost. Because coal com750 ibid., 63. 751 Convention on the Prevention and Punishment of the Crime of Genocide (n. 341); Statute of the International Criminal Tribunal for the Former Yugoslavia (25 May 1993), UN Doc. S/RES/827, Article 4(2); Statute of the International Criminal Tribunal for Rwanda (8 November 1994), UN Doc. S/RES/955, Article 6(2); Rome Statute of the International Criminal Court (n. 342), Article 6. 752 Convention on the Prevention and Punishment of the Crime of Genocide (n. 341), Article II. 753 Gareth Evans and Linda A. Malone, ‘Responsibility to Protect in Environmental Emergencies’ (2009) 103 Proceedings of the ASIL Annual Meeting 19, 24. 754 Rome Statute of the International Criminal Court (n. 342), Article 30(2) and (3). 755 See Statista (n. 94).

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bustion (irrespective of the costs of environmental pollution and destruction) appears to be economically more attractive than producing renewable energy, renewables were only used to meet 25 % of the world’s energy needs in 2017.756 However, as a side effect, the use of non-renewable energy sources depletes the ozone layer and contributes to global warming, leaving devastating impacts on human beings and the environment.757 Therefore, there is a trade-off between economic growth and environmental pollution. When carrying out industrial activities, governmental and non-state corporations do not consider the disastrous consequences their acts may have on humankind and the environment. The direct and indirect effects of climate change, such as rising sea levels, heatwaves, and extreme weather events, may lead to the loss of peoples’ livelihoods, notably in the Artic and Africa, and even lives.758 Because people in these regions are more vulnerable to climate-induced events, some authors have even spoke of ‘environmental racism’.759 All in all, the behaviour of policy-makers and non-state corporations displays recklessness or ‘wilful blindness’760 to the consequences of their acts. However, recklessness cannot be equated with the intent to destroy a certain group because of the high threshold that should be applied when deciding whether a crime constitutes a form of genocide. Accusing states whose industries are largely based on the consumption of fossil fuels of having committed genocide would lead to unjust accusations. The crime of genocide should only be applied to the most horrendous, thoroughly inhumane acts such as the Holocaust and the mass killings of the Rwandan Genocide. Therefore, as the impacts of climate change cannot be said to be committed with the intent to destroy a certain group, they cannot be labelled as genocide. Nevertheless, even when the specific intent cannot be proven, an act may be punishable as a crime against humanity, rather than as a form of genocide.761

II.

Ethnic cleansing

R2P further applies in case of ethnic cleansing, a crime that is defined as ‘a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas’.762 756 International Energy Agency, ‘World Energy Outlook 2018’ accessed 1 December 2019. 757 Crowley (n. 24), 276. 758 Laura Westra, Environmental Justice and the Rights of Indigenous Peoples (Earthscan 2008), 8. 759 See Laura Westra, Environmental Justice and the Rights of Ecological Refugees (Earthscan 2009), 18. 760 Westra, Environmental Justice and the Rights of Indigenous Peoples (n. 758), 165. 761 William A Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, CUP 2009), 257. 762 ‘Report of the Commission of Experts Established Pursuant to United Nations Security Council Resolution 780’ (27 May 1994), UN Doc. S/1994/674, para. 130.

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A specific ethnic or religious group has to be targeted for an act to qualify as ethnic cleansing. The policies of industrialised countries emitting GHGs cannot be understood to be directed against a specific population. However, as a matter of fact, people living in the Arctic, East Africa, SIDS, and coastal areas are disproportionally affected by the impacts of climate change.763 Therefore, the consequences of climate change could constitute discrimination on the basis of the following group characteristics: the most vulnerable people are poor people in developing countries, indigenous peoples, and residents of low-lying islands.764 Nevertheless, as in the case of genocide, it cannot be argued that the reckless behaviour of industrialised countries constitutes a purposeful policy. Their ‘wilful blindness’765 is not enough to be deemed an intentional behaviour. Consequently, because the emission of GHGs cannot be referred to as ‘ethnic cleansing’, the question of whether ethnic cleansing constitutes a form of genocide may be left unanswered.766

III.

War crimes

Another crime applicable to R2P is war crimes. The perpetration of war crimes as defined in Article 8 of the Rome Statute requires grave breaches of the Geneva Conventions, or other violations of international law applicable in international armed conflict. Therefore, one precondition for the existence of war crimes is an armed conflict of an international or non-international character. A ‘climate war’ would require an armed conflict linked to climate change, such as a hypothetical military invasion of the largest GHG emitters by SIDS disproportionately affected by climate change. As such, a situation like this does currently not exist and is also not expected to arise in the future. Therefore, the albeit devastating consequences of climate change do not qualify as war crimes.

763 Westra, Environmental Justice and the Rights of Ecological Refugees (n. 759), 178. 764 ibid. 765 Westra, Environmental Justice and the Rights of Indigenous Peoples (n. 758), 165. 766 See, inter alia, arguing that ethnic cleansing constitutes a type of genocide, ‘The Situation in Bosnia and Herzegovina’ (18 December 1992), UN Doc. A/RES/47/121, preamble; Völkermord in BosnienHerzegowina ( Judgement) (2000) 2 BvR 1290/99, NjW 2001, 1848, para. 34. Compare, inter alia, arguing against this interpretation Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (n. 724), para. 190, referring to The Prosecutor v Radislav Krstic (Trial Chamber Judgement) (2001) IT-98– 33-T, para. 562.

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IV.

Crimes against humanity

The impacts of climate change may amount to crimes against humanity. According to Article 7 of the Rome Statute, this crime requires the perpetration of one of the specific acts enumerated in paragraph 1(a)-(k), and additionally requires being part of a ‘widespread or systematic attack directed against any civilian population, with knowledge of the attack’.767 Unlike the ICTY Statute, which necessitates the existence of an armed conflict,768 the Rome Statute does not establish a connection between crimes against humanity and armed conflicts. Therefore, under the Rome Statute and in accordance with customary international law,769 the existence of an armed conflict is not required.770 Importantly, crimes against humanity are invariably limited to atrocities that, due to their magnitude, savagery, or their systematic nature, have ‘endangered the international community or shocked the conscience of mankind’.771 This exemplifies that the provision must be interpreted restrictively. Crimes against humanity were first prosecuted at the Nuremberg Trials of 1945.772 Then Special Rapporteur Jean Spiropoulos included ‘crimes against humanity’ as Crime No. VIII when the ‘draft code of offences against the peace and security of mankind’ for the ILC was prepared.773 The ILC worked intensively on the definition of crimes against humanity in 1986, and contemplated including environmental and drug crimes as pos-

767 Rome Statute of the International Criminal Court (n. 342). 768 ‘The International Tribunal shall have the power to prosecute persons responsible for the following crimes [lit. (a) – (i)] when committed in armed conflict, whether international or internal in character, and directed against any civilian population’. See Statute of the International Criminal Tribunal for the Former Yugoslavia (n. 751), Article 5. 769 The Prosecutor v Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (1995) IT-94–1-AR72, para. 141; Guido Acquavista and Fausto Pocar, ‘Crimes against Humanity’ (2008), MPEPIL accessed 1 December 2019, para. 13; Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (3rd edn, OUP 2013), 91. 770 Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (3rd edn, OUP 2014), para. 883; Christopher K Hall and Kai Ambos, ‘Article 7’ in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary (3rd edn. C. H. Beck 2016), paras. 3, 9; William A Schabas (ed), The International Criminal Court: A Commentary on the Rome Statute (2nd edn, OUP 2016), Article 7, 151. 771 The United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (H. M. Stationery Office 1948), 179. See also Hall and Ambos (n. 770), para. 4. 772 Schabas (ed), The International Criminal Court: A Commentary on the Rome Statute (n. 770), Article 7, 147. 773 Draft Code of Offences against the Peace and Security of Mankind (Yearbook of the International Law Commission 1950, Volume II, 181 12 April 1950), UN Doc. A/CN.4/25, para. 64.

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sible offences under the ‘crimes against humanity’ umbrella.774 Nevertheless, these crimes were omitted from the final version of the Rome Statute. Therefore, with regard to the impacts of climate change, the only remaining alternatives are Articles 7(1)(a), (b), (d), and (k) of the Rome Statute, which prohibit murder, extermination, deportation or forcible transfer of a population, and other inhumane acts, respectively.775 An act or omission by a determinable perpetrator is required to qualify as a crime. As outlined above, there are two different types of actions that must be considered. Firstly, states who emit GHGs or fail to adopt adequate adaptation or mitigation policies, thereby contributing to the devastating impacts of climate change, could be committing crimes against humanity. In this regard, the largest emitters, notably China and the US,776 bear the main responsibility. Secondly, states who fail to protect their populations from natural disasters, whose frequency and magnitude are enhanced by global warming may also be held accountable. The following section elaborates on the question of whether and to what extent the impacts of climate change could amount to crimes against humanity and identifies the guilty party.

1.

Tolerable amount of greenhouse gas emissions

By adopting state laws tolerating GHG emissions that exceed their agreed amount, the respective states could be considered to have committed crimes against humanity. Some researchers have recently called the denial of climate change a crime against humanity.777 Donald A. Brown, a renowned scholar in sustainability ethics and law and former representative of the ‘United States Environmental Protection Agency on United States delegations to the United Nations’, has devoted himself to analysing the criminal implications of climate change denial.778 According to Brown, the climate change disinformation campaign has significantly delayed the international community’s response and thereby increased the severity of droughts, floods, negative impacts on human health, and the intensity of storm damage, amongst other adverse impacts.779 Nevertheless, he sees difficulties in arguing that participants in the campaign may be prosecuted by the ICC for crimes against humanity. 774 Report of the International Law Commission on the Work of its Thirty-Eighth Session (5 May 1986), UN Doc. A/44/10, 43–46. See also Schabas (ed), The International Criminal Court: A Commentary on the Rome Statute (n. 770), Article 7, 148. 775 Rome Statute of the International Criminal Court (n. 342), Article 7(1)(k). 776 Statista (n. 94). 777 Donald Brown, Climate Change Ethics: Navigating the Perfect Moral Storm (Taylor & Francis 2013), 132. 778 His blog ‘Ethics and Climate’ analyses whether the climate change disinformation campaign constitutes a crime against humanity, a civil tort, a human rights violation or a malfeasance. Compare Donald Brown, ‘Ethics and Climate’ (2010) accessed 1 December 2019. 779 ibid.

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Firstly, the ICC’s jurisdiction is limited to the prosecution of crimes committed either on the territory of a state party to the Rome Statute or by a national of a state party if the state in question has not accepted the jurisdiction of the court. Because many of the activities related to the disinformation campaign have occurred in the US, which has not accepted the jurisdiction of the ICC, a strong case can be made that climate change deniers will not be held accountable for crimes against humanity.780 Furthermore, it is questionable whether the disinformation campaign constitutes a ‘systematic attack against a civilian population’ as required by the Rome Statute.781 Overall, although being ‘metaphorically some kind of new crime against humanity’,782 participation in the climate change disinformation campaign does not fit the definition of a crime against humanity under the Rome Statute. Therefore, the question that arises is whether these arguments could be also applied in the case of states and non-state corporations complicit in endangering the world’s economic and social systems by emitting GHGs. The following section thus analyses whether emitters have committed crimes against humanity according to Article 7 of the Rome Statute. a)

Punishable act

The first criterion of a crime against humanity is a punishable act committed by the perpetrator. Article 7(1) of the Rome Statute enumerates the criminal acts of crimes against humanity. The impacts of climate change may thereby constitute murder under Article 7(1)(a) of the Rome Statute, extermination under Article 7(1)(b), deportation or forcible transfer of population under Article 7(1)(d), or other inhumane acts under Article 7(1)(k). aa) Murder

It is possible that emitters may have committed murder according to Article 7(1)(a) of the Rome Statute. It has been established that climate change is expected to have severe long-term effects on human health. Global warming has, with medium confidence, enhanced heat-related mortality in some regions,783 which will increase significantly if GHG emissions are not immediately reduced. For example, a recently published study by environmental sci780 ibid. 781 ibid. 782 ibid. 783 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 51.

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entists from the US and the UK determined that anthropogenic climate change was largely responsible for the European heat waves of 2003, which led to over 1000 deaths in Paris and London alone.784 DARA, a Spanish non-profit organisation that evaluates humanitarian aid, has also analysed the impact of climate change on human health.785 Its analysis estimates that the extensive use of carbon-intensive energy sources coupled with climate change has already caused nearly five million deaths in 2010 and will contribute to nearly six million deaths per year by 2030.786 In this regard, emitters cannot claim ignorance that their behaviours are likely to have devastating consequences on human beings. Climate change also aggravates humanitarian catastrophes, notably in East Africa and the SIDS, as rising sea levels, droughts, and storms lead to coastal erosion, hunger, and disease. Therefore, it is evident that people have been killed because of climate change. However, as noted earlier, emitters do not intend to cause the deaths of millions of people by compromising their life conditions. One cannot equate their ‘wilful blindness’ with the intent to kill people with respect to the principle of legality in international criminal law. Therefore, they do not commit murder according to Article 7(1)(a) of the Rome Statute. bb) Extermination

Emitters may further be understood to be responsible for extermination according to Article 7(1)(b) of the Rome Statute. The crime of extermination involves the killing of one or more persons as part of a mass killing of members of a civilian population.787 Therefore, a single act of killing is sufficient to meet the definition, if it occurred within ‘a pattern of mass killing’.788 Accordingly, like genocide, the crime of extermination constitutes by its very nature a crime directed against a large number of individuals, rendering the death of a single victim that is not part of a pattern of mass killings to insufficient for the categorisation of extermination.789 In contrast to the victims of genocide, who comprise members of a ‘national, ethnical, racial or religious group’, the crime of 784 Daniel Mitchell and others, ‘Attributing Human Mortality during Extreme Heat Waves to Anthropogenic Climate Change’ (2016) 11(7) ERL 1, 1. See also Kendra Pierre-Louis, ‘Climate Change to Blame for Deaths in 2003 Heat Wave, New Study Says’ InsideClimate News (8 July 2016) accessed 1 December 2019. 785 See DARA, ‘Climate Vulnerability Monitor: A Guide to the Cold Calculus of a Hot Planet’ (2012) accessed 1 December 2019. 786 ibid., 17. 787 ‘Elements of Crimes’ (2 November 2000), UN Doc. PCNICC/2000/1/Add.2 (2000), Article 7(1)(b). 788 Douglas Guilfoyle, International Criminal Law (OUP 2016), 250. 789 The Prosecutor v Laurent Semanza ( Judgement and Sentence) (2003) ICTR-97–20-T, para. 340.

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extermination applies to situations in which a group of individuals is seemingly killed indiscriminately.790 Furthermore, in cases of extermination, the intention to destroy the population being attacked is not required.791 In this regard, the crime of extermination is intended to fill a gap in international criminal justice by enabling the litigation of mass killings that do not meet the more constrained definition of genocide.792 As enshrined in paragraph 2, the crime of extermination can either be committed by directly killing a large number of people, or by intentionally diminishing their life conditions, for instance by depriving them of access to food and medicine, with an aim to destroy part of a population.793 As noted above, a large number of people have already been killed as a result of climate change. Furthermore, people’s livelihoods have been and will continue to be destroyed by climate change-induced natural hazards such as floods, droughts, and heat waves. Land degradation will lead to decreased food production and therefore contribute to hunger and malnutrition that will result in a tremendous number of deaths. Thus, a large number of people has been killed either directly or indirectly. However, emitters do not act with the intent to destroy the lives and livelihoods of people. Thus, their actions cannot be defined as extermination according to Article 7(1)(b) of the Rome Statute. cc)

Deportation or forcible transfer of populations

The impacts of climate change may further lead to the mass migration of people, which could constitute a deportation or forcible transfer of population according to Article 7(1)(d) of the Rome Statute. Therefore, the forced displacement of persons to another state or location by expulsion or other coercive acts without grounds permitted under international law is required to meet this definition under Article 7(2)(d) of the Rome Statute. The displacement may either be performed through deportation or through the forcible transfer of a population. While the forcible transfer of a population may occur within the frontiers of a state, deportation necessarily requires expulsion from the national territory.794 However, because both definition of Article 7(1)(d) of the Rome Statute aim to protect the right of individuals to live in their homes without 790 ‘Draft Code of Crimes against the Peace and Security of Mankind with Commentaries’ (n. 470), part 2, Article 18(b), para. 8. 791 See, inter alia, The Prosecutor v Vasilljević (Trial Judgement) (2002) IT-98–32-T, para. 227; The Prosecutor v Radislav Krstic (n. 766), para. 500. See also Hall and Ambos (n. 770), para. 116. 792 Simon Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’ (2000) 10(2) DukeJComp&IntlL 307, 336 f. 793 ‘Elements of Crimes’ (n. 787), Article 7(2)(b). See also, inter alia, The Prosecutor v Radislav Krstic (n. 766), para. 499; The Prosecutor v Elizaphan & Gérard Ntakirutimana ( Judgement and Sentence) (2003) ICTR-96–10 & ICTR-96–17-T, paras. 812–813. 794 ‘Draft Code of Crimes against the Peace and Security of Mankind with Commentaries’ (n. 470), part 2, Article 18(g), para. 13.

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outside interference, and the right not to be dispossessed of their properties by forced displacement to another location, the protected values are essentially the same.795 Displacement and migration related to climate change are no longer hypothetical, but have become an empirical reality.796 Seeking escape from the devastating effects of climate change, such as cyclones, droughts, heat waves, and floods, millions of people living in the world’s most hazardous areas have already fled to other regions or countries.797 In 2017, an estimated 68.3 million people were forced to leave their homes due to conflict or persecution.798 Among them, an estimated 18.8 million people were displaced due to natural disasters.799 Although the claim that every natural disaster is a direct result of climate change is baseless, global warming is undoubtedly altering weather patterns.800 If GHG emissions are not immediately reduced, changes in all components of the climate system are unavoidable,801 and this will lead to further migration flows. Therefore, the deportation or forcible transfer of populations could be understood to have occurred if people flee from climate change-related hazards. Emitters do not directly deport people or force them to leave their homes. Nevertheless, if people flee because their homes are at risk of being flooded or their home islands come under an increased threat of disappearing due to rising sea levels, the only alternative to leaving their homes is near certain death. Australian researchers reported the disappearance of five Pacific islands in May 2016, marking the first sample of scientific evidence of the impacts of climate change on islands in the Pacific.802 If GHG emis795 The Prosecutor v Blagoje Simić, Miroslav Tadić and Simo Zarić ( Judgement) (2003) IT-95–9-T, para. 130; The Prosecutor v Milorad Krnojelac (Appeals Chamber Judgement) (2003) IT-97–25-A, para. 218; The Prosecutor v Slobodan Milošević (Decision on Motion for Judgement of Acquittal) (2004) IT-02–54-T, para. 69. 796 Mostafa M Naser and Tanzim Afroz, ‘Human Rights Implications of Climate Change Induced Displacement’ (2009) 21(3) Bond Law Review 137 accessed 1 December 2019, 141. 797 See António Guterres, ‘Keynote Speech at the Third Symposium on Corporate Social Responsibility and Humanitarian Assistance’ (Tokyo, 26 November 2007) accessed 1 December 2019. 798 UN High Commissioner for Refugees, ‘Global Trends: Forced Displacement in 2017’ accessed 1 December 2019, 2. 799 Statista, ‘Number of People Displaced due to Disasters Worldwide from 2008 to 2017 (in Millions)’ (2018) accessed 1 December 2019. 800 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 19. 801 ibid. 802 Reuters, ‘Five Pacific Islands Lost to Rising Seas as Climate Change Hits’ The Guardian (10 May 2016) accessed 1 December 2019.

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sions are not immediately reduced, more people will move from their home islands to safer locations. These forced population movements should not be perceived as ‘free’. Accordingly, the elements of crimes of Article 7(1)(d) of the Rome Statute state that the term ‘forcibly transferred’ is interchangeable with ‘forcibly displaced’.803 It makes no difference whether people are directly forcibly transferred or whether they have no other choice than to leave their countries and are forced to flee. There can also be no doubt that the inhabitants of SIDS are lawfully present on their home islands, and that emitters of GHGs are aware of this. Therefore, the forced migration of people living in areas that are the most vulnerable to climate change does constitute a deportation or forcible transfer of populations. dd)

Other inhumane acts

Emitters may further commit other inhumane acts of a similar character to the atrocities enumerated in Articles 7(1)(a)-(j) of the Rome Statute, ‘intentionally causing great suffering, or serious injury to body or to mental or physical health’, according to Article 7(1)(k) of the Rome Statute. Considering the detailed enumeration of specific crimes in Article 7(1)(a)-(j), this residual category encompasses gross human rights violations of similar gravity to the specified crimes.804 (1)

Inhumane act of a similar character

Firstly, the perpetrator must have committed an inhumane act of a similar character to the enumerated atrocities. (a)

Inhumane act

An inhumane act causing great human suffering or serious injury to body or to mental and physical health must be committed to constitute an inhumane act. Therefore, the term ‘other inhumane act’ involves serious physical and mental injury that falls short of death.805 According to the Oxford Dictionary, ‘inhumane’ refers to cruel behaviour ‘without compassion for misery or suffering’.806 Therefore, the question that arises is whether exacerbating the impacts of climate change may be defined as inhumane.

803 ‘Elements of Crimes’ (n. 787), Article 7(1)(d), footnote 13. 804 The Prosecutor v Duško Tadić (Opinion and Judgement, Trial Chamber) (1997) IT-94–1-T, paras. 728–729; The Prosecutor v Dario Kordič & Mario Čerkez ( Judgement) (2004) IT-95–14/2-A, para. 117; Acquavista and Pocar (n. 769), para. 15. 805 The Prosecutor v Tihomir Blaškic (Trial Chamber Judgement) (2000) IT-95–14-T, para. 239. 806 Oxford Dictionary, ‘Inhumane’ accessed 1 December 2019.

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As noted earlier, climate change has not only severely impacted ecological systems, but has also entailed and will entail far-reaching consequences for human beings. Global temperature rise, shrinking glaciers, and more prominent heat waves, droughts, and floods are evidence of the changing climate.807 Forced displacement is among the most visible impacts of climate change. The UNHCR estimated in 2016 that in each year since 2008, an annual average of 21.5 million people have been forcibly displaced due to natural phenomena.808 The IPCC Fifth Assessment Report also detailed the impacts of climate change on human health. The report predicted that health problems that already exist will be exacerbated until the mid-century.809 As DARA noted in its report, climate change not only hinders global development, but may also be a ‘leading global cause of death’ if it continues unabated.810 According to this report, climate change and a carbon-based economy are responsible for the loss of five million lives each year,811 mainly through starvation and diseases in developing countries. Another estimated 4.5 million deaths are attributed to the extensive use of carbon-based energy and related activities which cause air pollution, occupational hazards, and cancer.812 This shocking data paints a clear picture of how the current energy system endangers life on earth. A comparison with terrorist incidents over the last few years reveals the true magnitude of deaths attributed to climate change. In 2014, 32,685 people lost their lives in terrorist attacks.813 When compared with the five million deaths in 2010 attributed to climate change and the use of carbon-based energy sources, the threats posed by environmental pollution are far more dangerous and devastating. Its total global range once again reveals that climate change constitutes one of the defining challenges of the 21st century. In contrast to the global threats posed by climate change, the 2015 Global Terrorism Index proves that terrorist activity is concentrated in specific regions: 78 % of all deaths occurred in five countries, namely in Iraq, Nigeria, Afghanistan, Pakistan, and Syria.814 The impacts of climate change are not only on a global scale, but are also 807 Meehl and others (n. 20), 434; Committee on Ecological Impacts of Climate Change, National Research Council (n. 17), 1; Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 40, 42. 808 UN High Commissioner for Refugees (n. 22). 809 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 15. 810 DARA (n. 785), 16. 811 ibid., 15. 812 ibid., 17. 813 Institute for Economics & Peace, ‘Global Terrorism Index’ (2015) accessed 1 December 2019, 4. 814 ibid.

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unpredictable, long-lasting, and to a certain degree irreversible. Terrorism on the other hand constitutes a rather acute challenge facing the international community. The dangers posed by terrorism should by no means be underestimated, but more attention should be focused on the ecological destruction, economic destabilisation, and millions of deaths per year associated with climate change. Furthermore, some SIDS are in peril of being completely submerged, which not only poses significant dangers to human security, but could also generate hundreds of thousands of stateless persons. As Marcus Stephen, President of the Public of Nauru, indicated at the second UNSC Debate on Climate Change in July 2011,815 ‘neither nuclear proliferation nor terrorism has ever led to the disappearance of an entire nation, though that is what we are confronted with today’.816 This once again highlights the unprece­ dented dangers posed by climate change. In conclusion, there are strong arguments for defining the exacerbation of climate change as inhumane. However, up to now, most climate-induced effects have yet to be realised. While large amounts of GHGs have been discharged into the atmosphere and will remain there for thousands of years, the most severe consequences of climate change (outlined in the first chapter) are yet to come. Therefore, the question that arises is whether the crime of ‘other inhumane acts’ requires merely the perpetration of an inhumane act or whether the effect of this act must also be ‘inhumane’. In other words, the question is whether the notion of ‘inhumane’ refers to the act as such or to its effects. An examination of the wording of Article 7(1)(k) of the Rome Statute reveals that the statute clearly addresses ‘inhumane acts’, not ‘acts with inhumane consequences’. Therefore, to qualify as a crime against humanity, emitting GHGs or failing to adopt adequate mitigation policies must be regarded as inhumane. As noted above, emitters undoubtedly behave in a reckless way by destroying the earth’s economic, ecological, and social systems. Nevertheless, using carbon-based energy resources for industrial purposes is, while objectively immoral, legitimate and cannot be referred to as ‘inhumane’. Therefore, the ‘wilful blindness’817 of policy-makers and non-state corporations may only be considered inhumane to the extent to which their acts have already led to visible impacts on human beings. As noted above, impacts have already been observed, including the several millions deaths attributed to the extensive use of carbon-intensive energy sources and climate change,818 as well as an increase in the scale of migration

815 6587th Meeting of the Security Council (20 July 2011), UN Doc. S/PV.6587. 816 Statement by Marcus Stephen at the Second UN Security Council Debate on Climate Change. See ibid., 23. 817 Westra, Environmental Justice and the Rights of Indigenous Peoples (n. 758), 165. 818 DARA (n. 785), 15.

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flows both within countries and across borders.819 In each year since 2008, an annual average of 21.5 million people have been forcibly displaced due to natural phenomena.820 Therefore, because those people certainly continue to suffer from serious physical and mental injury, falling short of death,821 the palpable impacts of climate change may be referred to as ‘inhumane’. (b)

Of a similar character

Furthermore, according to Article 7(1)(k) of the Rome Statute, the act must have been similar in character to any other act referred to in paragraph 1. The jurisprudence of the international courts offers little guidance about the question of how to prove this similarity, but the ad hoc tribunals for the former Yugoslavia and Rwanda have qualified some acts, for example serious mental or physical injury,822 or enforced prostitution, as being of similar gravity.823 In the Kupreškić et al. case, the ICTY further elaborated on which acts may constitute crimes against humanity.824 To name just a few, the tribunal referred to ‘serious forms of cruel or degrading treatment of persons belonging to a particular […] group, or serious widespread or systematic manifestations of cruel or humiliating or degrading treatment with a discriminatory or persecutory intent’.825 The forcible transfer826 and the enforced disappearance of persons827 are also covered by Article 7(1)(k) of the Rome Statute.828 The atrocities enumerated in Article 7 of the Rome Statute, such as murder, torture, rape, and apartheid, are among the most horrendous crimes one can imagine. Although at first sight the impacts of climate change may not appear to be comparable to those crimes, a closer examination of its devastating consequences reveals the enormous threats that emanate from global warming.

819 820 821 822 823

See Guterres (n. 797), 26 November 2007. UN High Commissioner for Refugees (n. 22). The Prosecutor v Tihomir Blaškic (n. 805), para. 239. ibid., para. 239. The Prosecutor v Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Antić, also known as “Vlado” (Trial Chamber Judgement) (2000) IT-95–16-T, para. 566. 824 ibid. 825 ibid. 826 Geneva Convention relative to the Protection of Civilian Persons in Time of War (4th Geneva Convention) (12 August 1949), 75 UNTS 287, Article 49; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977), 1125 UNTS 609, Article 17(1). 827 ‘Declaration on the Protection of All Persons from Enforced Disappearance’ (18 December 1992), UN Doc. A/Res/47/133. 828 The Prosecutor v Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Antić, also known as “Vlado” (n. 823), para. 566.

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Furthermore, the threats to global economic and social systems by climate change will lead to a greater risk of armed and social conflicts.829 As Robert Douglas White has argued, there are four different types of social conflicts that may arise due to climate change and related environmental transformations.830 First, conflicts over environmental resources such as access to water may emerge, particularly in Bolivia, South Africa, Israel, and Palestine.831 Second, climate-induced migration may be another stressor leading to conflicts linked to global warming.832 Receding coastlines and desertification may also induce conflicts, with Egypt, Greenland, and the USA, amongst other states, being potentially the most affected.833 The third type of conflict includes conflicts over the differential exploitation of resources.834 For example, conflicts over energy supply may occur because the world’s hydrocarbon reserves are concentrated in specific regions, such as Iraq, Iran, and Venezuela.835 Lastly, conflicts over the transference of harm may occur.836 In this regard, transference refers to ‘transactions, transmissions, and exchanges, within and across local, national, regional, transnational and global boundaries.’837 Potential conflicts are conflicts fought over global concentrations of pollutants that contribute to global warming,838 and conflicts over the illegal movement of animals (wildlife trafficking).839 The transborder movement of waste poses additional problems because organised crime groups dominate the redistribution of toxic waste across borders, to countries of least resistance, or the oceans.840 Thus, climate change has not only direct impacts on the world’s economy and welfare, but can also be considered as a trigger for climate-related conflicts.

829 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 73. 830 Robert D White, ‘Globalisation and Environmental Harm’ in Robert D White (ed), Global Environmental Harm: Criminological Pespectives (Willan Publishing 2010), 12; Robert D White, ‘The Criminology of Climate Change’ in Robert D White (ed), Climate Change from a Criminological Perspective (Springer 2012), 3. 831 White, ‘Globalisation and Environmental Harm’ (n. 830), 12. 832 ibid. 833 ibid. 834 White, ‘The Criminology of Climate Change’ (n. 830), 3. 835 White, ‘Globalisation and Environmental Harm’ (n. 830), 12. 836 ibid., 13. 837 Diane Heckenberg, ‘The Global Transference of Toxic Harms’ in Robert D White (ed), Global Environmental Harm: Criminological Pespectives (Willan Publishing 2010), 40. 838 White, ‘The Criminology of Climate Change’ (n. 830), 3. 839 Heckenberg (n. 837), 40. 840 White, ‘Globalisation and Environmental Harm’ (n. 830), 13.

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In summation, climate change not only poses risks in and of itself, but by acting as a ‘threat multiplier’,841 also increases the likelihood of (armed) conflict. In this regard, climate change can be seen as enhancing the risk of atrocities according to Article 7. Hunger, malnutrition, water scarcity, and the loss of property, amongst other visible impacts of climate change, are factors that may aggravate or even trigger armed conflict. Therefore, constituting not only a crime by itself, but by simultaneously giving rise to other crimes, the impacts of climate change are a fortiori of a similar character to the enumerated atrocities. (c) Conclusion

To the extent which climate change has already led to visible impacts on human beings, these impacts constitute ‘other inhumane acts of a similar character’ to the atrocities enumerated in Article 7(1)(a)-(j) of the Rome Statute. (2) Intention

In terms of the mental elements, the perpetrator of an ‘other inhumane act’ must firstly have had the intention to inflict great suffering or serious injury to body or to mental or physical health according to Article 30(2)(b) of the Rome Statute. Intention in this regard requires that emitters aim to inflict great suffering or serious injury to body or to mental and physical health, or at least are aware that this will follow as consequences of their activities. Though it is beyond any doubt that the use of carbon-based energy sources is not meant to cause human suffering or disease, today most people in developed countries have access to credible, relevant, and impartial information on climate change, including its causes and dangerous impacts. Large multinational corporations in particular have research departments at their disposal.842 Therefore, emitters cannot claim ignorance that their behaviours are likely to have devastating consequences on human beings.

841 The role of climate change as ‘threat multiplier’ has also by acknowledged by UN Secretary-General Ban Ki-moon and several politicians. See ‘Climate Change and its Possible Security Implications: Report of the Secretary General’ (11 September 2009), UN Doc. A/64/350, para. 13. The CAN Military Advisory Board also pointed out the security risks associated with climate change: ‘In many areas, the projected impacts of climate change will be more than threat multipliers; they will serve as catalysts for instability and conflict’. See CNA Military Advisory Board, ‘National Security and the Accelerating Risks of Climate Change’ (May 2014) accessed 1 December 2019, 2. Compare also a comment by Mark Lyall Grant, British Representative to the UN, at the Second UN Security Council Debate on Climate Change: ‘It is in that context that climate change must be seen as a threat multiplier, exacerbating existing tensions and increasing the likelihood of conflict’, 6587th Meeting of the Security Council (n. 815), 11. See also the statement of the EU Representative at the same occasion, ibid., 29. 842 Westra, Environmental Justice and the Rights of Ecological Refugees (n. 759), 189.

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The IPCC has stated unequivocally that human influence is the dominant cause of climate change and its far-reaching consequences.843 States who pollute the environment by emitting GHGs must also be aware that their carbon-based energy systems not only damage the environment and the world’s economic and social systems, but also produce far-reaching long-term consequences for human health and welfare. The initial impacts of global warming can already be observed today. Anthropogenic climate change and the use of carbon-based energy sources have led to five million deaths in 2010.844 States that fail to adopt ambitious mitigation measures cannot claim to be unaware of these facts. This behaviour is reckless, negligent, and ignorant of an overwhelming reality. Therefore, states must be aware that their behaviour maintains the status quo, and leads to great suffering and serious injury to body or mental and physical health. (3)

Awareness of the factual circumstances establishing the similar character

Furthermore, a perpetrator of an ‘other inhumane act’ must be aware of the factual circumstances that establish its character similar to any other act as stated in Article 7(1) of the Rome Statute.845 Although states are ignoring the reality of climate change, and deaths from terrorist attacks receive far more attention in the media than victims from natural disasters, the dangerous impacts of global warming can no longer be ignored. The IPCC regularly warns of the dangerous impacts of climate change. Emitters are further aware that climate change not only is a risk in itself, but that it acts as a ‘threat multiplier’ to increase the likelihood of armed conflict and other atrocities. Other atrocities could also include those listed in Article 7 of the Rome Statute, such as murder, enslavement, and torture. Emitters must be aware of these consequences because information on climate change is now widely available. Therefore, a perpetrator would be undoubtedly aware of the factual circumstances establishing the character of their acts being similar to other human rights violations. b)

Widespread or systematic attack against any civilian population

The most destructive impacts of climate change must further be assessed to determine whether they are part of a widespread or systematic attack directed against any civilian population.

843 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 2. 844 DARA (n. 785), 17. 845 ‘Elements of Crimes’ (n. 787), Crimes against Humanity, Article 7(1)(k) Rome Statute.

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aa) Attack

An attack is defined as a ‘course of conduct involving the commission of acts of violence’.846 It does not necessarily involve the use of military force, but rather encompasses any mistreatment of a civilian population.847 The use of the plural ‘acts’ already indicates that an attack must consist of multiple acts rather than a single, isolated act.848 However, the initiation of the acts enumerated in Article 7(1) of the Rome Statute also constitutes an ‘attack’ itself and, besides this, there does not need to be an additional ‘attack’.849 By emitting GHGs and failing to undertake ambitious mitigation measures, thereby spurring large migration flows and the deaths of several thousands of people, many industrialised countries commit ‘other inhumane acts of a similar character’ as defined in Article 7(1)(k) of the Rome Statute. Therefore, the emission of GHGs may be defined as an attack in this way. bb)

Widespread or systematic

The attack must be of a widespread or systematic character to constitute an ‘other inhumane act’. The Preparatory Committee Draft Statute includes the phrasing ‘widespread [and] [or] systematic’, revealing that there is uncertainty over the question of whether the conditions should be read disjunctively or cumulatively.850 Because the provision now requires a ‘widespread or systematic attack’, the conditions are considered to be two alternatives.851 Furthermore, only an attack has to be widespread or systematic, not the constitutive acts themselves.852

846 The Prosecutor v Mladen Naletic, aka “Tuta” and Vinko Martinovic, aka “Štela” ( Judgement) (2003) IT-98–34-T, para. 233; The Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu ( Judgement) (2005) IT-03–66-T, para. 182; Compare also Hall and Ambos (n. 770), paras. 105–107. 847 The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic ( Judgement) (2002) IT96–23/1-A, para. 86; The Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu (n. 846), para. 182. See also Hall and Ambos (n. 770), para. 15. 848 ibid., para. 106; Acquavista and Pocar (n. 769), para. 14. 849 The Prosecutor v Jean-Paul Akayesu ( Judgement) (1998) ICTR-96–4-T, para. 581; Hall and Ambos (n. 770), para. 14; The Prosecutor v Jean-Pierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) (2009) ICC-01/05–01/08, para. 75; Werle and Jessberger (n. 770), para. 893. 850 Schabas (ed), The International Criminal Court: A Commentary on the Rome Statute (n. 770), Article 7, 164. 851 See Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes against Humanity’ (n. 792), 314; Hall and Ambos (n. 770), para. 4; Schabas (ed), The International Criminal Court: A Commentary on the Rome Statute (n. 770), Article 7, 164. 852 The Prosecutor v Dario Kordič & Mario Čerkez (Appeals Chamber Judgement) (2004) IT-95–14/2-A, para. 94.

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Emitting GHGs may further be considered a widespread attack. The term ‘widespread’ may refer to the magnitude of the attack, as well as to the number of victims’.853 A widespread attack is characterised as one that it is ‘massive, frequent, […] and directed against a multiplicity of victims.’854 An attack may either be executed over a large geographical area, or in a small geographical area directed against a large number of civilians.855 The spread can be determined by the cumulative effect of several inhumane acts or by the effect of one single act of exceptional magnitude.856 Climate change does not represent a solely local or regional issue, but is rather the greatest global challenge humanity has ever faced. Although the impacts of climate change will be unevenly distributed across the world, with populations in developing countries being much more vulnerable than those in industrialised countries,857 climatic changes will affect all people on Earth. Thus, the geographical area under consideration must be understood as the entire planet. Furthermore, a large number of people are suffering and will continue to suffer from the adverse effects of climate change. Therefore, the attack of GHG emissions should be considered to be widespread. Because there is evidence of a widespread attack, the additional condition of an attack’s ‘systematic’ nature does not need to be demonstrated. cc)

Directed against any civilian population

Furthermore, the primary object of the attack must be a civilian population, not a random assortment of individuals or an incidental victim.858 Emanating from IHL, which distinguishes between combatants and civilians, the notion of ‘civilian’ generally refers to persons that have not participated in hostilities. Several crucial conditions are considered to determine if an attack has been directed against a civilian population, including the means and methods used during the attack, the number of victims, whether the 853 See, inter alia, The Prosecutor v Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad al Abd-al-Rahman (“AU Kushayb”) (Decision on the Prosecution Application under Article 58(7) of the Statute) (2007) ICC-02/05–01/07, para. 61; The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Confirmation of Charges) (2008) ICC-01/04–01/07, para. 394–397; The Prosecutor v Omar Hassan Ahmad al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest) (2009) ICC-02/05–01/09, para. 81. 854 The Prosecutor v Jean-Pierre Bemba Gombo (n. 849), para. 83. See also The Prosecutor v Jean-Paul Akayesu (n. 849), para. 580; The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (n. 853), paras. 395 and 398. 855 The Prosecutor v Jean-Pierre Bemba Gombo (n. 849), para. 81. 856 The Prosecutor v Dario Kordič & Mario Čerkez ( Judgement) (2001) IT-95–14/2-T, para. 179; The Prosecutor v Dario Kordič & Mario Čerkez (n. 804), para. 94. 857 Mirza (n. 48), 24. 858 See, inter alia, The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic (n. 847), para. 90– 92; The Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu (n. 846), para. 187; The Prosecutor v JeanPierre Bemba Gombo (n. 849), para. 76.

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attack is discriminatory in nature, the nature of the atrocities committed in the course of the attack, and the degree to which the attacking force has complied with the laws of war.859 The effects of climate change could be said to afflict a large number of victims in that it affects millions of people. Because people from poorer countries will be disproportionately harmed due to their high exposure and increased vulnerability to natural disasters, a discriminatory effect might also be said to occur. Nevertheless, the attack must be directed against a civilian population, requiring emitters of GHGs to intend to afflict a specific number of civilians. By depending on a carbon-based energy system for industrial and other purposes, emitters do not intend to harm a specified group of civilians, but rather impede their well-being through the consequences of their actions. Therefore, the victims of climate change-induced natural disasters do not constitute the ‘primary object of the attack’, but are rather ‘incidental victims’. In short, the attack is not directed against a civilian population. dd) Conclusion

Because the attack is not directed against a civilian population, the definition of a ‘widespread or systematic attack against a civilian population’ is not fulfilled. c) Remarks States emitting large amounts of GHGs and who fail to instigate mitigation measures do not commit genocide or ethnic cleansing because they do not intend to destroy a certain group of people. Furthermore, a ‘climate war’ currently does not exist, and thus war crimes are also not applicable in this case. The only crime that requires further consideration are crimes against humanity. In this regard, the analysis concentrated on the crimes of murder, extermination, deportation or forcible transfer of population, and other inhumane acts. Emitters do not intend to cause the deaths of millions of people by hampering their life conditions, and so their actions do not fit the definition of extermination. However, their acts do fit the ‘deportation or forcible transfer of population’ criterion as well as ‘other inhumane act[s] with a similar character’ to the enumerated atrocities according to Article 7(1)(k) of the Rome Statute. Nevertheless, emitters cannot be tried for crimes against humanity because, by affecting only a random assortment of victims, the civilian population is not the ‘primary object’ of their attack. 859 The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic ( Judgement) (2001) IT96–23-T and IT-96-23-1-T, para. 421; The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic (n. 847), para. 91; The Prosecutor v Mile Mrkšić Veselin Šljivančanin ( Judgement) (2009) IT95–13/1-A, paras. 30 – 34.

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ICC Prosecutor Fatou Bensouda has recently announced that the ICC will give special consideration in the future to prosecuting crimes involving environmental degradation.860 She referred to crimes under the Rome Statute committed by means of, or resulting in, inter alia, environmental destruction, illegal exploitation of natural resources, and illegal dispossession of land.861 In this regard, it is important to mention that Bensouda did not announce the establishment of a crime of ecocide in international law, but rather stated that environmental factors will be considered in future judgements. The only explicit reference to the environment in the Rome Statute can be found in Article 8(2)(b)(iv), where ‘[i]ntentionally launching an attack in the knowledge that such attack will cause […] long-term and severe damage to the natural environment […]’ is punished as a war crime. This would in any case require an armed conflict, and thus the scope of application of Article 8 is limited. However, damage to the environment may also have severe consequence for human beings such that this behaviour could, if the criteria are fulfilled, constitute a crime against humanity. Nevertheless, one notable shortcoming remains, given that environmental crimes are often committed by corporations. As codified in the principle of individual criminal responsibility in Article 25 of the Rome Statute, the ICC’s jurisdiction is limited to natural persons, and therefore legal entities are not subject to its jurisdiction. In the absence of an International Environmental Court, this statement can nonetheless be hailed as a landmark advancement because public awareness of the gravity of environmental crimes that has often been ignored will be raised. The announcement of the chief prosecutor could yield important developments for international law, reflecting the ICC’s recognition of the changing nature of ongoing conflicts around the world.862 The impacts of climate change will also receive further deliberation in future decisions of the court. Bensouda’s announcement also has an important signalling effect; it indicates that the international community and the ICC will act in the face of GHG emissions that destroy the world’s economic, ecological and social systems. Damaged crop yields, conflicts over environmental resources, mass movements of people, and a large number of casualties are among these negative side-effects. However, the assessment made above is not set in stone. It remains to be seen whether the ICC will take the 860 Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’ (15 September 2016) accessed 1 December 2019; Adam Taylor, ‘Is Environmental Destruction a Crime against Humanity? The ICC may be about to Find Out.’ Washington Post (16 September 2016) accessed 1 December 2019. 861 Office of the Prosecutor (n. 860), 14. 862 Compare in this regard Franziska Kring, ‘Environmental Destruction as Crime against Humanity? Climate Change and its implications on International Criminal Law’ (29 September 2016) accessed 1 December 2019.

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impacts of climate change into account in future judgements. Thus, emitters are not considered to have committed a crime that could be subsumed under the scope of R2P by current standards.

2.

States failing to protect their populations

States failing to protect their populations from climate change-induced natural disasters could also be determined to have committed crimes against humanity. When a cyclone struck Myanmar in May 2008, the international community debated the application of R2P to a natural disaster case for the first time. The following discussion of this specific case study is equally relevant to any situation in which a government fails to protect its population before or in the aftermath of a natural disaster. a)

Cyclone Nargis and the responsibility to protect

Cyclone Nargis made landfall in Myanmar in May 2008. The storm devastated important parts of the country, severely affected 2.4 million people, and led to at least 84,500 deaths.863 Because Myanmar’s government at first refused to allow foreign aid workers into the country, the international community discussed the application of R2P as a basis for securing the delivery of humanitarian aid to victims.864 Notably, former French Foreign Minister Bernard Kouchner and the whole of the European Parliament called on the Security Council to invoke R2P to offer protection to the victims of the natural disaster.865 Although the international community refused to apply R2P in response to the humanitarian crisis in Myanmar, which raised concerns over the expansion of the scope of the concept,866 the question remains concerning whether the case of Myanmar represents a case where the concept should have been invoked. Cyclone Nargis quickly turned into a humanitarian catastrophe,867 with Myanmar’s government firstly refusing to accept international aid, and thus the state could be guilty of

863 International Federation of Red Cross and Red Crescent Societies, ‘Myanmar: Cyclone Nargis 2008 Facts and Figures’ (3 May 2011) accessed 1 December 2019. 864 For a comprehensive overview of this controversial question see Rebecca Barber, ‘The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study’ (2009) 14(1) Journal of Conflict and Security Law 3. 865 Parsons (n. 586); ‘Security Council Report, Update Report No. 4, Myanmar’ (n. 586); European Parliament, ‘European Parliament Resolution of 22 May 2008 on the Tragic Situation in Burma’ (n. 587), para. 5. 866 ‘Security Council Report, Update Report No. 4, Myanmar’ (n. 586), 2; Brockmeier, Kurtz and Junk (n. 589), 442. 867 Roberta Cohen, ‘The Burma Cyclone and the Responsibility to Protect’ (2009) 1(2) Global Responsibility to Protect 253, 255.

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crimes against humanity.868 Therefore, the following section clarifies whether the failure of Myanmar to protect its population from the devastating impacts of cyclone Nargis constitutes a crime against humanity according to Article 7 of the Rome Statute. aa)

Punishable act

The perpetration of a crime against humanity firstly necessitates a punishable act according to Article 7(1) of the Rome Statute. Based on the facts of the incident that occurred in Myanmar in May 2008, there are a number of allegations against Myanmar’s government that resemble the underlying elements of a crime against humanity.869 The government blocked foreign aid, embezzled humanitarian aid resources that were intended for survivors, forcibly returned people to their destroyed villages from relief camps, and failed to warn its population of the impending cyclone. Each of these claims is explored individually below. (1)

Myanmar’s blockade of aid

The first allegation against Myanmar’s government is the initial blockade of humanitarian aid to the survivors of cyclone Nargis. In the first three weeks after the storm hit, the military leaders of Myanmar declared their willingness to accept deliveries of food and medicine, but prohibited the presence of foreign aid workers in their country.870 Furthermore, donations were not allowed to be given directly to survivors, but were rather confiscated by Myanmar’s government for distribution.871 By strictly limiting the amount of aid that was allowed into the country,872 the Myanmar government delayed the distribution of international relief to the cyclone victims.873 The UNSC has strongly condemned the intentional denial of humanitarian assistance during armed conflict in Resolution 1674 on the protection of civilians in times of war.874 These acts of the Myanmar government may thus qualify as murder, extermination, or other inhumane acts.

868 Compare ibid.; Lloyd Axworthy and Allan Rock, ‘R2P: A New and Unfinished Agenda’ (2009) 1(1) Global Responsibility to Protect 54, 57. 869 Compare also Stuart Ford, ‘Is the Failure to Respond Appropriately to a Natural Disaster a Crime against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis’ (2010) 38(2) DenvJIntlL&Pol 227, 243. 870 Seth Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ New York Times (10 May 2008) accessed 1 December 2019. 871 Voravit Suwanvanichkij and others, ‘After the Storm: Voices from the Delta’ (March 2009) accessed 1 December 2019, 8. 872 Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ (n. 870). 873 ibid. 874 SC Res. 1674 (n. 396), para. 5.

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(a) Murder

The denial of humanitarian aid could firstly constitute murder according to Article 7(1)(a) of the Rome Statute. The crime of murder requires the death of a person caused by an act or omission of the accused, or of a person or persons for whose acts or omissions the accused bears criminal responsibility. It furthermore requires the intention to kill or to inflict grievous bodily harm or serious injury, in the reasonable knowledge that such act or omission was likely to cause death.875 According to official figures, the cyclone led to nearly 100,000 fatalities.876 However, the UN estimates that a total of 2.4 million people were somehow affected by the storm.877 While a government cannot be held accountable for acts of nature beyond their control, in situations of humanitarian emergency, a government is responsible for providing humanitarian assistance to its population. Disaster-affected populations desperately need water, food, shelter, and medical care. As previously discussed, the government deliberately blocked international aid to the survivors of cyclone Nargis. Diplomats and humanitarian aid agencies agreed that the absence of relief for the victims aggravated the situation in Myanmar and led to additional deaths.878 In the first week after the cyclone hit the country, aid could only be distributed to 220,000 of the 2.4 million people left homeless, injured, or suffering from disease and malnutrition.879 If a country experi­ ences a natural disaster as grave as cyclone Nargis, a government must take more immediate action to protect its population from the worst consequences. Therefore, there are reasonable grounds to believe that the deaths of a great number of people could have been prevented if aid had been distributed in a timely and effective manner.880 Restricting the delivery of humanitarian aid intended for disaster-affected populations is therefore a crime against the whole population of the state of Myanmar. Furthermore, the deaths must have been caused by an act or omission of the government of Myanmar. As noted above, it is obvious that many deaths were in fact a result of the restrictive attitude of the Myanmar government towards international aid. Although humanitarian aid agencies and the international community were willing to provide international relief, deliveries did not reach the victims in need due to decisions taken by 875 The Prosecutor v Radoslav Brđanin ( Judgement) (2004) IT-99–36-T, para. 381. 876 International Federation of Red Cross and Red Crescent Societies (n. 863). 877 ibid. 878 Compare Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ (n. 870); Warren Hoge and Seth Mydans, ‘U. N. Leader Tells Myanmar to Hurry on Aid’ New York Times (13 May 2008) accessed 1 December 2019, quoting a foreign relief official: ‘By keeping most foreign assistance out, though, the generals must be ready to accept the deaths of hundreds of thousands more people’; Ford (n. 869), 244. 879 Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ (n. 870). 880 Compare also Ford (n. 869), 244.

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the military junta. As Paul Risley, a spokesman of the UN World Food Program in Bangkok, reported, ‘[a]ll the food aid and equipment that we managed to get in has been confiscated.’881 Therefore, there are substantial grounds to believe that some deaths were due to an act or omission of the government of Myanmar.882 The government of Myanmar must further have had the intention to kill or to inflict grievous bodily harm or serious injury to have committed murder, or at least have been aware that death was a probable consequence of their acts or omissions. It is beyond any doubt that the population of a state inflicted by a natural disaster is in immediate need of water, food, medical supplies, and shelter. If a government is not able to provide those resources, it is legally and morally obliged to ask for outside assistance under international human rights law and International Disaster Response Law (IDRL). Furthermore, the devastating humanitarian consequences of cyclone Nargis received immediate and extensive media coverage. Therefore, the Myanmar government cannot claim to have not known about the devastating consequences of the natural disaster. Therefore, it can be concluded that the military junta of Myanmar acted with indirect criminal intent. (b) Extermination

The government of Myanmar could also have committed an extermination according to Article 7(1)(b) of the Rome Statute. As noted earlier, the crime of extermination requires either the direct killing or the intentional infliction on the conditions of life of a large number of persons, for instance by depriving them of access to food and medicine, with the intent to destroy part of a population.883 The crime of extermination is similar to murder in many ways, with the exception that the latter does not require the death of persons on a massive scale.884 Therefore, many of the conclusions drawn above with respect to the crime of murder also apply to the crime of extermination. As already noted, the government of Myanmar intentionally caused the deaths of a large number of people by initially refusing to accept foreign assistance. Although it is not possible to know with absolute certainty how many people died specifically because of the absence of aid, the UN estimated that a total number of 2.4 million people were affected by the cyclone.885 In the case of The Prosecutor v. Radoslav Brđanin, the ICTY decided that the deaths of 1669 people fulfilled the criterion of massiveness.886 There are reasonable 881 Quoted in Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ (n. 870). 882 Compare also Ford (n. 869), 245. 883 ‘Elements of Crimes’ (n. 787), Article 7(2)(b). See also, inter alia, The Prosecutor v Radislav Krstic (n. 766), para. 499; The Prosecutor v Elizaphan & Gérard Ntakirutimana (n. 793), paras. 812–813. 884 The Prosecutor v Radoslav Brđanin (n. 875), para. 388. 885 International Federation of Red Cross and Red Crescent Societies (n. 863). 886 The Prosecutor v Radoslav Brđanin (n. 875), para. 465.

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grounds to believe that deaths occurred on a massive scale due to the lack of aid because aid could only be distributed to less than 10 % of those affected in the first week after the cyclone hit the country.887 Therefore, the Myanmar government also engaged in an extermination according to Article 7(1)(b) of the Rome Statute. (c)

Inhumane act of a similar character

Lastly, the perpetration of ‘other inhumane acts of a similar character’ according to Article 7(1)(k) of the Rome Statute should also be determined. Firstly, the acts of Myanmar’s government should be considered inhumane, and as having caused great human suffering or serious injury to body or to mental and physical health, while falling short of murder.888 90 % of the 2.4 million people severely affected by the cyclone did not receive any aid during the first week after Cyclone Nargis hit the country.889 However, the number of people who gained access to aid increased to 20 % of the affected population in the following two weeks.890 Cyclone Nargis not only led to the deaths of approximately 100,000 people,891 but also ruined food stocks, damaged approximately 75 % of health facilities, and destroyed nearly 60 % of all homes in the most affected townships,892 leaving people homeless and deprived of access to food and sanitation. Therefore, a large number of people suffered from the devastating impacts of cyclone Nargis and the lack of government assistance. Furthermore, the act must have been of a similar character to any other act referred to in Article 7(1). Several reports revealed that the humanitarian situation in Myanmar was disastrous,893 necessitating significant humanitarian aid. The government of Myanmar further refused to admit doctors and disaster relief experts into the country during this humanitarian crisis, thereby increasing the risk of millions of deaths by starvation and epidemic diseases.894 Notwithstanding the enormous human suffering in their country, Myanmar’s military leaders insisted on holding a constitutional referendum previously scheduled for May 10th, 2008, just one week after the cyclone hit, once again revealing

887 888 889 890 891 892 893 894

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Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ (n. 870). The Prosecutor v Tihomir Blaškic (n. 805), para. 239. Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ (n. 870). Alan Cowell and Seth Mydans, ‘Myanmar to Widen Neighbors’ Aid Role’ New York Times (20 May 2008) accessed 1 December 2019. International Federation of Red Cross and Red Crescent Societies (n. 863). The Tripartite Core Group (n. 585), 13 f. David Seekins, ‘The Social, Political and Humanitarian Impact of Burma’s Cyclone Nargis’ (2008) 6(5) The Asia-Pacific Journal 1; International Federation of Red Cross and Red Crescent Societies (n. 863). Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ (n. 870).

IV.  Crimes against humanity

the junta’s disregard for their people.895 In the meantime, Myanmar’s military leaders continued to ignore requests made by UN Secretary General Ban Ki-moon to hold a meeting on the dire humanitarian situation in the country.896 Another indicator of an inhumane act of a similar character is discriminatory or persecutory intent.897 It is now evident that Myanmar’s military junta intentionally delayed support for all victims of cyclone Nargis. In addition, relief workers reported that the government at first only gave support to the Bamar people, the dominant ethnic group in Myanmar.898 Ethnic minorities in Myanmar such as the Karen were denied assistance in the first days after the disaster hit Myanmar.899 Bamar people were rescued by boat while Karen people were left behind.900 Financial donations to ethnic minorities were significantly less than those given to Bamar people and the food distributed to Karen people was also of poor quality.901 Nearly all of the Bamar people in need were given support by the government, while only about 20 % of non-Bamar people received support.902 Therefore, the acts and omissions of the Myanmar government discriminated against ethnic minorities in favour of Bamar people. In summation, the actions taken by Myanmar’s government to provide relief to its population were inadequate and insufficient.903 Although Myanmar’s authorities did not actively take up arms against their population, they delayed relief for people in need, thereby contributing to the deterioration of the humanitarian situation in their country. 895 ibid.; Suwanvanichkij and others (n. 871), 54. 896 Mydans, ‘Myanmar Seizes U. N. Food for Cyclone Victims and Blocks Foreign Experts’ (n. 870); Andrea Thompson, ‘2008 a Devastating Year for Natural Disasters’ (29 December 2008) accessed 1 December 2019. 897 The Prosecutor v Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Antić, also known as “Vlado” (n. 823), para. 566. 898 Myanmar is a multi-ethnic country with approximately 135 recognised ethnic groups. According to the last official census of 1983, the Bamar people accounted for 68 % of Myanmar’s population and dominate the government and the military. Ethnic minorities include Shan (9 %), Karen (7 %), Rakhine (3.5 %), and Chin (2.5 %). The government of Myanmar does not engage in protecting its cultural minorities, but rather consistently oppresses the various minority ethnic groups. Many ethnic groups took up arms to protect their rights, and to demand autonomy. Therefore, the country was faced with clashes between the government and ethnic minorities, leading to an ongoing civil war in Myanmar. Compare, for a detailed overview of the ethnic composition of Myanmar and the reasons for the conflict, IRIN – The inside story on emergencies, ‘Myanmar’s Ethnic Problems’ (29 March 2012) accessed 1 December 2019; World Atlas, ‘Largest Ethnic Groups In Myanmar (Burma)’ (25 April 2017) accessed 1 December 2019. 899 Suwanvanichkij and others (n. 871), 9. 900 ibid. 901 ibid., 9. 902 ibid., 39. 903 Barber, ‘The Responsibility to Protect the Survivors of Natural Disaster’ (n. 864), 21.

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Such behaviour is comparable in terms of its gravity to murder, extermination, and the other crimes enumerated in Article 7(1)(a)-(j) of the Rome Statute. Thus, the inhumane acts of Myanmar’s government were of a similar character to these atrocities. Furthermore, Myanmar’s authorities must have had the intention to inflict great suffering or serious injury to body or to mental or physical health according to Article 30(2)(b) of the Rome Statute. They must have intended to inflict great suffering or serious injury to body or to mental and physical health or at least have been aware that these consequences will occur in the ordinary course of events. With regard to the media coverage of cyclone Nargis, the military junta of Myanmar must have been aware of the human suffering that their actions and inaction would create. A government that excludes relief workers from the country and obstructs the delivery of humanitarian aid ethnic minorities has, beyond any doubt, the intention to inflict great suffering, or serious injury to body or to mental or physical health. Furthermore, the perpetrator of an ‘other inhumane act’ must be aware of the factual circumstances that have established the character of the act as similar to any other act referred to in Article 7(1) of the Rome Statute.904 As noted above, Myanmar’s authorities were aware that their behaviour was likely to cause the deaths and suffering of thousands of people in their country. In this sense, their crimes are comparable to murder, rape, and other crimes causing great suffering. Therefore, they were aware of the factual circumstances establishing the similar character of the act to these atrocities. Therefore, it can be concluded that Myanmar’s authorities committed ‘other inhumane acts of a similar character’ according to Article 7(1)(k) of the Rome Statute. (2)

Embezzlement of aid

Another allegation lodged against the government of Myanmar was the embezzlement of donations allocated to the country to provide relief to the survivors of cyclone Nargis. Rather than allowing aid workers to independently distribute food and other goods to cyclone victims, the government insisted that all assistance be channelled through the military.905 Survivors of cyclone Nargis claimed that high quality goods were provided to the local military leaders, while civilians received inferior and rotten products.906 The directors of several relief organisations in Myanmar even accused the country’s army of 904 ‘Elements of Crimes’ (n. 787), Crimes against Humanity, Article 7(1)(k) Rome Statute. 905 Denise Grady, Seth Mydans and Eric Schmitt, ‘When Burmese Offer a Hand, Rulers Slap It’ New York Times (12 May 2008) accessed 1 December 2019. 906 ibid.; Amnesty International, ‘Myanmar Briefing Human Rights Concerns a Month after Cyclone Nargis’ (2008) accessed 1 December 2019, 8.

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IV.  Crimes against humanity

having appropriated some of the international aid arriving into the country.907 Several eyewitnesses also reported that some of the donated supplies were sold at markets run by the military and local authorities.908 This behaviour must have resulted in additional deaths and may also be considered inhumane, justifying the application of the crimes of murder, extermination, and other inhumane acts, as analysed above. Therefore, the arguments made above also apply to the diversion of humanitarian aid by the military junta. There are reasonable grounds to believe that the authorities of Myanmar embezzled disaster-relief funds and donations to the detriment of the country’s population, thereby committing crimes according to Article 7 (1)(a), (b), and (k) of the Rome Statute. (3)

Forcible transfer of people

The government of Myanmar could further have committed a ‘deportation or a forcible transfer of populations’ according to Article 7(1)(d) of the Rome Statute. While the forcible transfer of populations occurs within the frontiers of a state, deportation requires the forced removal of persons to another country.909 Several people reported to have been forcibly transferred to relief centres controlled by government authorities after having found refuge at private relief centres.910 After staying there for about a week, they were forced to return to their own villages, many of which had been destroyed by the cyclone, without any assurances for their safety or the provision of food and water.911 Therefore, because these relief centres were situated within the territory of Myanmar, this could be defined as the forcible transfer of populations. People that lost their homes, property, and in the worst cases, close relatives, were surely unwilling to return to their villages without being assured access to essential goods, shelter, and water and sanitation. Therefore, all the required conditions for a forcible transfer of a population are present in this case. However, these displacements only began in late May, after Myanmar’s government had officially announced the end of the rescue phase of the response, and continued into June.912 At that time, the humanitarian crisis in Myanmar had become less severe and the amount of aid arriving in the country was increasing.913 Thus, the

907 Warren Hoge, ‘Aid Groups Say Myanmar Food Stolen by Military’ New York Times (15.05.08) accessed 1 December 2019. 908 Suwanvanichkij and others (n. 871), 36. 909 ‘Draft Code of Crimes against the Peace and Security of Mankind with Commentaries’ (n. 470), part 2, Article 18(g), para. 13. 910 Suwanvanichkij and others (n. 871), 41 f. 911 Amnesty International (n. 906), 3; Suwanvanichkij and others (n. 871), 41 f. 912 Amnesty International (n. 906), 2; Ford (n. 869), 253. 913 Cowell and Mydans (n. 890); Ford (n. 869), 253.

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forced displacement of people occurred after the worst suffering had ended.914 By this point, the invocation of R2P would not have been useful in saving lives, which forms its primary role.915 Intervening at this point of time would have done more harm than good. This is exactly where another strength of R2P lies: it does not establish an obligation to intervene, but rather a responsibility to act, depending on an authorisation by the Security Council. Even if a crime under R2P has been committed, states can discuss measures they deem appropriate in a particular case within the UNSC. Therefore, at this point of time, although a forcible transfer of people occurred, the displacement of people did not prompt the applicability of R2P. (4)

Failure to warn the population

Soon after cyclone Nargis made landfall in Myanmar, the government was accused of being aware of the potential destructiveness of the impending cyclone, but failed to warn its population.916 If these allegations are true, the military junta might be held accountable for murder, extermination, and other inhumane acts as analysed above. Therefore, the question that remains is whether the government was aware of the approaching cyclone and its potential devastating consequences for the population of Myanmar. According to India’s meteorological agency, which monitors cyclones in the Indian Ocean, the authorities of Myanmar were warned 48 hours before the storm struck.917 Claiming that these weather reports were announced through state media, the government rejected the allegation of having failed to issue timely warnings.918 As a matter of fact, there is no evidence to support any of the claims outlined above. Therefore, the argument cannot be made that the government of Myanmar was aware of the large-scale humanitarian crisis that would result from cyclone Nargis.919 In summation, there are no reasonable grounds to believe that the military junta committed the crimes of murder, extermination, as well as other inhumane acts by failing to warn the population.

914 Ford (n. 869), 253. 915 ibid. 916 Notably, former US First Lady Laura Bush claimed that the government had failed to act to protect its population. Compare Seth Mydans, ‘Myanmar Reels as Cyclone Toll Hits Thousands’ New York Times (6 May 2008) accessed 1 December 2019; Steve Jackson, ‘Was Burma’s Cyclone Predicted?’ BBC News (6 May 2008) accessed 1 December 2019. 917 ibid. 918 ibid. 919 Compare Ford (n. 869), 254.

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(5) Conclusion

By initially refusing humanitarian aid and embezzling donations allocated to the country to provide relief to the survivors of cyclone Nargis, the government of Myanmar committed murder, extermination, and other inhumane acts of a similar character according to Article 7(1)(a), (b) and (k) of the Rome Statute. bb)

Committed as part of an attack

The acts and omissions of the government must further be analysed to determine if they qualify as part of an attack. Being defined as a ‘course of conduct involving the commission of acts of violence’,920 an attack does not necessarily involve the use of military force but rather encompasses any mistreatment of the civilian population.921 However, the commission of the acts enumerated in Article 7(1) of the Rome Statute constitutes the ‘attack’ itself and there does not need to be an additional ‘attack’.922 As noted above, by denying aid to the survivors of cyclone Nargis, the government of Myanmar committed crimes according to Article 7(1)(a), (b), and (k) of the Rome Statute. Therefore, it can be concluded that its acts were part of an attack. cc)

Widespread or systematic

Furthermore, the attack must be of a widespread or systematic character. A widespread attack is regarded ‘massive, frequent, […] and directed against a multiplicity of victims.’923 As noted above, the dire situation in Myanmar and the obstruction of humanitarian aid deliveries into the country by the government affected millions of people. Therefore, a widespread attack can be considered to have taken place. The attack was also systematic because the denial of humanitarian aid was also part of a reckless policy emanating from the government.

920 Prosecutor v Mladen Naletic, aka “Tuta” and Vinko Martinovic, aka “Štela” (n. 840), para. 233; The Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu (n. 846), para. 182; Hall and Ambos (n. 770), paras. 105–107. 921 The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic (n. 847), para. 86; The Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu (n. 846), para. 182. See also Hall and Ambos (n. 770), para. 15. 922 The Prosecutor v Jean-Paul Akayesu (n. 849), para. 581; The Prosecutor v Jean-Pierre Bemba Gombo (n. 849), para. 75; Hall and Ambos (n. 770), para. 14. 923 The Prosecutor v Jean-Pierre Bemba Gombo (n. 849), para. 83. See also The Prosecutor v Jean-Paul Akayesu (n. 849), para. 580; The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (n. 853), paras. 395 and 398.

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dd)

Directed against any civilian population

Furthermore, the primary object of the attack must be a civilian population, rather than an incidental victim or a random assortment of individuals.924 There is no evidence to suggest that an armed conflict was taking place in the Irrawaddy Delta in Myanmar, one of the areas hit hardest by the cyclone, suggesting that no one should be considered combatants.925 However, the attack was directed against the survivors of cyclone Nargis, and this suggests that a civilian population was the primary target of the attack. Therefore, the denial of humanitarian aid was directed against a civilian population. ee)

Knowledge of the attack

According to Article 7(1) of the Rome Statute, perpetrators of other inhumane acts must further have knowledge that an attack on the civilian population occurred, and that their acts were part of it.926 They do not need to be aware of every detail of the attack, but must understand the overall context in which their actions were a part.927 It is beyond any doubt that the military junta was aware of the attack against the survivors of cyclone Nargis. Due to the amount of media coverage and the reactions of the international community, Myanmar’s government must have known about the ongoing humanitarian crisis in their country. Therefore, the military leaders must have understood that their acts were part of an attack. ff) Conclusion

Overall, there are reasonable grounds to believe that some acts of Myanmar’s government represent crimes against humanity, thereby eliciting the applicability of R2P.928 By initially refusing humanitarian aid and embezzling donations, the military junta committed murder, extermination, and other inhumane acts. These acts can also be viewed 924 See, inter alia, The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic (n. 847), para. 90– 92; The Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu (n. 846), para. 187; The Prosecutor v JeanPierre Bemba Gombo (n. 849), para. 76. 925 Compare also Ford (n. 869), 260. 926 The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (n. 853), para. 401 f.; The Prosecutor v Omar Hassan Ahmad al Bashir (n. 853), para. 87; The Prosecutor v Jean-Pierre Bemba Gombo (n. 849), para. 88. 927 The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic (n. 847), para. 102; The Prosecutor v Dario Kordič & Mario Čerkez (n. 856), para. 185. 928 Compare also Gareth Evans, ‘Facing up to our Responsibilities’ The Guardian (12 May 2008) accessed 1 December 2019; Axworthy and Rock (n. 868), 56; Alison McCormick, ‘From Sovereignty to Responsibility: An Emerging International Norm and its Call to Action in Burma’ (2011) 18(1) IndJGlobalLegalStud 563, 588; Ashley McLachlan-Bent and John Langmore, ‘A Crime against Humanity? Implications and Prospects of the Responsibility to Protect in the Wake of Cyclone Nargis’ (2011) 3 Global Responsibility to Protect 37, 51.

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as part of a widespread and systematic attack on a civilian population. Therefore, there is reason to believe that events occurring in the aftermath of cyclone Nargis could have made external intervention backed by the UNSC permissible under R2P. b)

Responsibility to protect people from climate change

As outlined above, the failure of a government to offer humanitarian aid to its population after a natural disaster may under certain circumstances constitute a crime against humanity. However, in the case of Myanmar, a natural disaster has already occurred while the most horrendous impacts of climate change are yet to be felt. It is difficult to make the argument that the present effects of climate change constitute crimes against humanity. Up to now, no single disaster or abnormal weather event can be attributed to climate change for certain.929 However, it can be concluded that specific events fit the pattern and an increase in the risk of natural disasters can be attributed to climate change.930 Climate change certainly affects the frequency and intensity of extreme weather events.931 Furthermore, the number of disasters has significantly increased in recent years. While between 200 and 250 disasters occurred from 1987 to 1997, this figure doubled in the first seven years of the 21st century.932 According to the Red Cross/Red Crescent Climate Guide, examples of recent disasters that fit the pattern of increased risk due to climate change include the 2003 European heatwave that killed over 35,000 people, the 2005 Atlantic hurricane season (including Katrina), and the massive flooding witnessed during the 2007 Asian monsoon.933 Therefore, if a government has manifestly failed to protect its population from a natural disaster and its frequency or extraordinary mangnitude could be attributed to climate change, a perpetration of crimes against humanity may have occurred. This may in turn necessitate the application of R2P. Climate change has already aggravated humanitarian catastrophes in East Africa and in SIDS, as the next section further discusses. In this regard, governments could have a responsibility to protect people from the adverse impacts of climate change.

929 International Federation of Red Cross and Red Crescent Societies, ‘Red Cross/Red Crescent Climate Guide’ (November 2007) accessed 1 December 2019, 65. 930 ibid. 931 Mirza (n. 48), 238. 932 International Federation of Red Cross and Red Crescent Societies, ‘Red Cross/Red Crescent Climate Guide’ (n. 929), 15. 933 ibid.

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V. Remarks There are several conclusions that can be drawn from this chapter. The example of Myan­mar has demonstrated how an event that began as a natural disaster can transform into a humanitarian catastrophe if the affected state does not take appropriate measures to protect its population. In this situation, the level of criminal responsibility of the respective head of state should be determined. In the absence of a ‘climate war’ and in light of the high threshold for assuming the perpetration of war crimes, genocide, or ethnic cleansing, the only remaining crimes, with regard to climate change, which are eligible for external intervention under R2P are crimes against humanity. Against the background of the changing nature of armed conflicts globally, crimes against humanity appear to be the most suitable indictment to litigate acts that do not amount to genocide, war crimes, or ethnic cleansing. The rather broad scope of crimes against humanity simplifies the process of arguing that some atrocity fits this definition, particularly when compared to the more restrictive criteria of war crimes or genocide.934 Furthermore, the potential qualification of several drivers of climate change-induced disasters as crimes against humanity must not be rejected prematurely. In this regard, there are two different sets of actions that could amount to crimes against humanity. Firstly, by emitting GHGs or failing to adopt adequate adaptation or mitigation policies, states contribute to the devastating effects of climate change. Secondly, states who fail to protect their populations from natural disasters that are linked to climate change may be held accountable. However, as noted above, the most destructive impacts of climate change have not yet occurred. Furthermore, it is difficult to link a particular natural phenomenon directly to climate change, and more importantly to the potential contribution of states to this state of affairs. Therefore, it is difficult to make the argument at this stage that GHG emitters or states that fail to protect their populations from the impacts of climate change are committing crimes against humanity. Nevertheless, the number and severity of natural disasters related to climate change will increase significantly in the years to come. Therefore, the discussion of whether crimes against humanity are committed with regard to climate change will also be of lasting relevance in the coming decades. While R2P cannot be said to be directly applicable to the impacts of climate change, the next section contends with the question of whether the scope of R2P could be extended to cover the devastating effects that climate change has on human beings.

934 Compare also Ford (n. 869), 274.

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Extension of the R2P

This section proposes the extension of the scope of R2P to address the impacts of climate change.935 The primary focus of R2P is to reconcile issues of state sovereignty and external intervention, as discussed in chapter C.936 Although the ICISS has enumerated ‘natural and environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened’ as crimes triggering R2P,937 the 2005 World Summit limited the scope of R2P to be applicable only in response to the crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity.938 In 2009, then UN Secretary-General Ban Ki-moon stated that, unless UN member states decided otherwise R2P applies only to the four specified crimes, since ‘[t]o try to extend [R2P] to cover other calamities, such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility’.939 However, the ongoing impacts of climate change may necessitate a different approach. The IPCC regularly cautions that global warming gravely threatens human security and health, by enabling malnutrition or enhancing the risks of armed conflict or vectorborne diseases.940 The Zika virus may foreshadow such calamitous developments.941 Therefore, the international community’s inertia to effectively combat climate change calls for new approaches to cope with this global problem.

935 Parts of this chapter have been published in Kring, ‘Responsibility to Protect Revisited – A Promising Approach to Tackle Climate Change?’ (n. 2). 936 International Commission on Intervention and State Sovereignty (n. 13), Introduction. Compare also Susan Breau, ‘Responses by States’ in Susan Breau and Katja LH Samuel (eds) (n. 241), 71. 937 International Commission on Intervention and State Sovereignty (n. 13), para. 4.20; Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 332. 938 ‘2005 World Summit Outcome’ (n. 105), para. 138 f. 939 ‘Report of the Secretary-General. Implementing the Responsibility to Protect’ (n. 379), para. 10(b). 940 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 64. 941 Bill McKibben, ‘The Zirka Virus Foreshadows our Dystopian Climate Future’ The Guardian (25 January 2016) accessed 1 December 2019.

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During a Security Council debate on climate change, the representative of Papua New Guinea referred to R2P: This debate in the Security Council suggests that there are additional avenues for discussing one of the most critical issues for the survival of our Pacific island communities. The Security Council and the General Assembly have accepted the principle of the responsibility to protect. The dangers that small islands and their populations face are no less serious than those faced by nations and peoples threatened by guns and bombs. The effects on our populations are as likely to cause massive dislocations of people as past and present wars. The impacts on social cohesion and identity are as likely to cause resentment, hatred and alienation as any current refugee crisis.942 This reference to the concept of R2P reveals that its application to climate change seems at least plausible. At the second UN Security debate on climate change and human security, the Bolivian representative to the UN has even called for the creation of an ‘international tribunal for climate and environmental justice’.943 Such a tribunal would impose sanctions against states that contribute to the destruction of the environment and do not respect human rights.944 These developments highlight the security dimension of climate change and the necessity to find a global solution to this challenge. Hence, the author argues that R2P represents the most promising approach to guarantee adequate protection of those people suffering from the adverse impacts of climate change. This thesis posits that ‘all states, disaster-affected states and the international community of states, have a responsibility to humanity’945 to protect people from climate change. This coincides with the conclusion that Tyra Ruth Saechao has drawn with regard to natural disasters. This chapter distinguishes between different scenarios in which R2P could be applied to climate change-related problems, and outlines the factual and legal consequences arising from such applications. The suitability of applying R2P to the different scenarios is then assessed based on three criteria: the type and scale of human suffering, relevant actors and their responsibilities, and bases for external intervention. This last category is necessary because the author argues that R2P itself does not serve as a legal basis for external intervention. The second portion of this chapter is devoted to outlining potential theoretical foundations of R2P when applied to the impacts of climate change. The 942 5563rd Meeting of the Security Council (17 April 2007), UN Doc. S/PV.5663, 28. 943 6587th Meeting of the Security Council (n. 815), 26. 944 ibid. 945 The author also further clarified the obligations of states in case of natural disasters: ‘(1) to warn people and nations potentially affected by an impending or occurring disaster; (2) to unconditionally provide essential disaster relief and accept it if needed; and (3) to ensure sustainable reconstruction and rehabilitation of disaster-affected areas’. Compare Tyra R Saechao, ‘Natural Disasters and the Responsibility to Protect: From Chaos to Clarity’ (2007) 32(2) BrookJIntlL 662, 678.

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analysis of challenges arising with such an extension then forms the final part of this section.

I. Scenarios A responsibility to protect people from the impacts of climate change could manifest itself in different scenarios.

1.

Extreme humanitarian catastrophes

The first scenario in which obligations of states could arise are extreme humanitarian catastrophes linked to climate change. a)

Type and scale of human suffering

Climate change-driven human suffering is visible both in East Africa and in island nations at risk of disappearing. These regions are used as case studies in this section. A number of countries across East Africa are currently affected by dire humanitarian crises, particularly Ethiopia, Somalia, Sudan, South Sudan, and Kenya.946 In South Sudan, nearly half of the population or 4.9 million people are considered to be severely food insecure by the UN.947 According to Oxfam, 11 million people in Ethiopia, Somalia, and Kenya are also facing starvation.948 In 2011, 260,000 people died as a result of a famine in the East African region,949 which is now in its fourth consecutive year of drought and has seen an exceptional number of people lose vast amounts of livestock.950 To give an example, 10 million of an estimated total of 18 million livestock are estimated to have died in Somalia. These developments will lead to loss of human lives in large numbers.951 About 615,000 people have been displaced since the beginning of the drought.952 If assistance is not provided, many people will be forced to leave their homes to take refuge 946 Irish Aid – Department of Foreign Affairs and Trade, ‘Ireland Responding to the Crises in East Africa’ (8 February 2017) accessed 1 December 2019. 947 Lucy Lamble and Ben Quinn, ‘‘Countless Lives at Stake’ Warn NGOs as Hunger in East Africa Prompts Major Appeal’ The Guardian (15 March 2017) accessed 1 December 2019. 948 Carty (n. 176). 949 Lynch (n. 178). 950 Carty (n. 176). 951 ibid. 952 UN News Service Section, ‘UN News – Somalia: 1.4M Children to Suffer Acute Malnutrition this Year – UN Agency’ (2 May 2017) accessed 1 December 2019.

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in displacement camps with little privacy, precarious hygiene situations, and limited access to water and electricity. Potential outbreaks of cholera and malaria pose another threat to people in these conditions.953 There is increasing scientific evidence that climate change will worsen the already dire humanitarian situation in East Africa.954 Climate change in particular is responsible for extremely high temperatures and consequentially low rainfall, resulting in the aforementioned loss of livestock.955 People in East Africa are generally suffering on a massive scale; they are not only facing the direct effects of climate change such as extreme weather events and droughts, but also suffer from the indirect impacts of climate change, such as crop shortfall, malnutrition, and the outbreak of diseases. Therefore, in light of the East African situation, climate change should not be considered a ‘hoax or a distant future threat. It is real, it is happening now, and it is helping fuel the humanitarian disaster in East Africa.’956 With regard to sinking islands, climate change continues to aggravate humanitarian catastrophes, particularly in the Solomon Islands, the Maldives, and the Republic of the Marshall Islands (RMI). Although none of the five Solomon Islands that have already been submerged were inhabited, local communities depended on these islands for fishing.957 Another island threatened to disappear is Nuatambu, which is home to 25 families and has already lost more than half of its surface area, prompting the relocation of people to a more elevated volcanic island.958 If climate change-induced sea-level rise is not immediately stopped, more populations will be forced to relocate. The University of Queensland’s Dr. Simon Albert, the lead author of a 2016 study on the interaction between sea-level rise and wave exposure in the Solomon Islands,959 states that ‘[t]his kind of relocation will be incredibly complex and likely cost hundreds of millions of dollars, which will make the country more reliant on international help.’960 The Maldives is one of the countries that is most vulnerable to the negative effects of climate change. According to the estimations of the World Bank, the entire country of the Maldives could disappear by the year 2100, with an estimated sea level rise between 953 ibid. 954 Oxfam, ‘How Climate Change is Helping Fuel a Massive Hunger Crisis in East Africa’ accessed 1 December 2019; Carty (n. 176). 955 ibid. 956 ibid. 957 Compare Angela Dewan, ‘Five Solomon Islands Swallowed by the Sea’ (10 May 2016) accessed 1  December 2019. 958 ibid.; Reuters (n. 802). 959 See Albert and others (n. 179). 960 Albert, quoted in Dewan (n. 957).

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10 to 100 centimetres.961 The Maldives is particularly vulnerable to the risks of extreme weather events such as strong winds, and flooding.962 Former President of the Marshall Islands Christopher Jorebon Loeak has also stated that his country has been severely affected by climate change, including unprecedented droughts in the north, exceptionally high tides in the south, and some of the most devastating typhoons in history that have destroyed parts of the country.963 People’s lives in the RMI are frequently threatened by higher tides and floods. When homes are flooded, children and elderly people in particular are at risk of drowning.964 In 2013, the Maduro airport, which serves the island’s capital region, was temporarily closed because high tides had flooded the runway.965 When a storm or a flood hits, there is nowhere for people to evacuate on such low-lying islands, making the islands particularly vulnerable to the impacts of climate change.966 In summation, the RMI represents ‘a place where no one has the luxury of denying the existence of climate change. People here in the Marshall Islands are living it. Have been living it.’967 However, not all islands that barely rest above the sea level will necessarily be fully submerged in the next century. New Zealand coastal geomorphologist Paul Kench has analysed the impacts of rising sea levels on reef islands in the Pacific and Indian Oceans.968 Together with his team, Kench has observed the movements of reef islands caused by shifting sediments and has also observed enlargements of island surface area rather than shrinking.969 According to their analysis, about 80 % of the islands in their study sample have remained unchanged or even increased in size, whereas the remaining 20 % have

961 The World Bank, ‘Climate Change in the Maldives’ (6 April 2010) accessed 1 December 2019. 962 ibid. 963 Christopher J Loeak, ‘A Clarion Call from the Climate Change Frontline’ The Huffington Post (18 September 2014, last update 18 November 2014) accessed 1 December 2019. 964 Compare also John D Sutter, ‘You’re Making this Island Disappear’ accessed 1 December 2019. 965 Coral Davenport, ‘The Marshall Islands Are Disappearing’ New York Times (2 December 2015) accessed 1 December 2019. 966 Renee Lewis, ‘Nowhere to Move: Marshall Islands Adapts amid Climate Change Threat’ Al Jazeera America (19 May 2015) accessed 1 December 2019. 967 Sutter (n. 964). 968 They analysed more than 600 coral reef islands in the Pacific and Indian Oceans. See Kennedy Warne, ‘Will Pacific Island Nations Disappear as Seas Rise? Maybe Not’ (13 February 2015) accessed 1 December 2019. 969 ibid.

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shrunk, as is typically assumed with sea level rise.970 However, residents of the islands that belong to this 20 % are suffering on a massive scale. Mohamed Aslam, an oceanographer, has concluded that they will reach a point when people are no longer able to adapt to these environmental changes.971 The greatest fear of the inhabitants of these islands is that they are uncertain when this point will be reached, or what will happen afterwards.972 b)

Actors involved and their potential responsibilities

R2P addresses individual states, the international community, and regional and international NGOs. The responsibilities of each actor can be classified based on the different components of R2P: prevent, react, and rebuild. Because the potential responsibilities of states bear important similarities to IDRL, this section primarily utilises these provisions. aa)

Affected states

Firstly, R2P imposes on states affected or threatened by humanitarian catastrophes the responsibility to protect their own populations. It is widely accepted that humanitarian catastrophes should primarily be addressed by domestic actors, in order not to undermine the sovereignty of states.973 (1)

Responsibility to prevent

The first component of R2P is the responsibility to prevent. The responsibility to prevent requires states ‘to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk’.974 In this regard, the ICISS proposes a toolbox of political, diplomatic, economic, and legal preventative measures for states to fulfil their R2P, including consultation with the UN Secretary-General, financial sanctions, and offers of mediation or arbitration.975 In terms of the humanitarian impacts of climate change, individual states’ responsibility to prevent encompasses the responsibility to take measures to avert humanitarian catastrophes. States should engage in CCM measures and, at the very least, disaster planning

970 ibid. 971 Mohamed Aslam, quoted in ibid. 972 See Davenport, ‘The Marshall Islands Are Disappearing’ (n. 965). 973 Compare also International Federation of Red Cross and Red Crescent Societies, ‘Law and Legal Issues in International Disaster Response: a Desk Study’ (n. 14), 89. 974 International Commission on Intervention and State Sovereignty (n. 13), XI. 975 ibid., para. 3.26 – 3.28.

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and adaptation measures.976 The first guiding principle of the Sendai Framework for Disaster Risk Reduction 2015–2030 states: Each state has the primary responsibility to prevent and reduce disaster risk, including through international, regional, subregional, transboundary and bilateral cooperation. The reduction of disaster risk is a common concern for all states and the extent to which developing countries are able to effectively enhance and implement national disaster risk reduction policies and measures in the context of their respective circumstances and capabilities can be further enhanced through the provision of sustainable international cooperation.977 The ILC Draft Articles on the Protection of Persons in the Event of Disasters also contain a prevention mandate: 1. Each state shall reduce the risk of disasters by taking appropriate measures, including through legislation and regulations, to prevent, mitigate, and prepare for disasters. 2. Disaster risk reduction measures include the conduct of risk assessments, the collection and dissemination of risk and past loss information, and the installation and operation of early warning systems.978 Thus, the responsibility to prevent disasters plays an essential role in international politics. Although the Sendai Framework and the ILC Draft Articles do not explicitly refer to R2P, their wording closely resembles the concept. The ‘primary responsibility to prevent and reduce disaster risk’ devolving upon states corresponds to the primary responsibility under R2P. The ILC Draft Articles also include a responsibility to prevent disasters, even if the wording is different. The measures under these agreements also help to prevent humanitarian disasters caused by climate change because early warning mechanisms and disaster preparedness equally contribute to the mitigation of the impacts of climate change.979 976 Compare also Breau, ‘Responses by States’ (n. 936), 74. 977 Sendai Framework for Disaster Risk Reduction 2015–2030 (18 March 2015), para. 19(a). 978 Draft Articles on the Protection of Persons in the Event of Disasters (2016), UN Doc. A/71/10, ILC Rep 12, Article 9. 979 The IPCC has also stressed that ‘[t]here are many potential synergies between disaster risk management and climate change adaptation that can contribute to social, economic, and environmental sustainability and a resilient future.’ See Intergovernmental Panel on Climate Change (ed), Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation. A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change (Christopher B. Field, Vicente Barros, Thomas F. Stocker, Dahe Qin, David John Dokken, Kristie L. Ebi, Michael D. Mastrandrea, Katharine J. Mach, Gian-Kasper Plattner, Simon K. Allen, and Tignor, Melinda and Midgley, Pauline M. CUP 2012), 469.

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Ethiopia has conducted large dam projects on many of its rivers, including the Grand Ethiopian Renaissance Dam which will be the largest in Africa once completed.980 The country has further concluded partnership agreements with China, and Chinese firms have invested billions in Ethiopian dam projects.981 These dams will generate hydropower and irrigate agriculture in neighbouring areas.982 This improved water management will reduce drought risk by ensuring a steady supply of water.983 Despite these benefits, the construction of mega dams remains controversial, given that they might cause large-scale environmental disruption and pose disadvantages for downstream countries.984 However, downstream states such as Egypt and Sudan will also benefit from the dam project due to increased coordination and cooperation.985 The Ethiopian government has further established the Productive Safety Net Program (PSNP), one of the world’s biggest safety net programs,986 which pools money from different donors, primarily from the World Bank.987 Unlike disaster response programs, the PSNP provides regular cash- and food assistance to people in need as well as additional support during droughts and other emergencies.988 Correspondingly, the PSNP is also part of Ethiopia’s responsibility to react in addition to the responsibility to prevent. Strengthening national capacity to prevent and to react to natural disasters and climate change is also one of the key priorities of Somalia’s National Development Plan 2017– 2019, the first one in 30 years.989 The report highlights the necessity to implement land and urban policies to adapt and mitigate the impacts of climate change and natural disasters.990 980 Lynch (n. 178). 981 ibid. 982 The Economist, ‘Ethiopia Opens Africa’s Tallest and Most Controversial Dam’ The Economist (21 December 2016) accessed 1 December 2019; Lynch (n. 178). 983 Jean Kumagai, ‘The Grand Ethiopian Renaissance Dam Gets Set to Open’ IEEE Spectrum (30 December 2016) accessed 1 December 2019, Gavin Du Venage, ‘Ethiopian Dam Creates Waves’ The National (24 April 2017) accessed 1 December 2019. 984 Dalia Abdelhady and others, ‘The Nile and the Grand Ethiopian Renaissance Dam: Is There a Meeting Point between Nationalism and Hydrosolidarity?’ [2015] Journal of Contemporary Water Research 73, 74; The Economist (n. 982). 985 Du Venage (n. 983). 986 The World Bank, ‘Moving Away from Humanitarian Appeals to Managing Droughts in Ethiopia’ (2 May 2017) accessed 1 December 2019. 987 ibid. 988 ibid. 989 Federal Government of Somalia, ‘National Development Plan 2017–2019’ (1 October 2016) accessed 1 December 2019, 37. 990 ibid., 146.

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Island states suffering from the negative consequences of climate change have also commenced measures to prevent the worst impacts from occurring. In 2013, the largest gathering of Pacific leaders ever was convened in Majuro, leading to the adoption of the Majuro Declaration for Climate Leadership.991 The represented states pledged to be ‘climate leaders’ and committed to further develop and implement laws and policies aimed at building resilience against climate change.992 This declaration was also presented to former UN Secretary-General Ban Ki-moon, who praised the Pacific island nations for taking the lead in the fight against climate change.993 In 2013, the RMI adopted a Joint National Action Plan focusing on CCA and DRR.994 In the immediate aftermath of the 2013 drought,995 the RMI government declared its commitment to better coordinate DRM and CCA and to enhance emergency preparedness and resilience.996 In July 2015, the RMI also became the first small island state to renew its emissions target for 2025.997 The RMI thereby accepts the reduction of emissions by 32 % below 2010 levels by 2025.998 All in all, the RMI has already embarked on a range of measures aimed at preventing further climate change, which will also contribute to reducing the impacts of humanitarian catastrophes. The Maldives has also adopted a National Adaptation Programme of Action999 that equally tries to incorporate CCA and DRM, recognising that the majority of disasters that will affect the country will be linked to climate change.1000 A pilot project for an 991 Pacific Islands Forum, ‘Majuro Declaration for Climate Leadership’ (5 September 2013) accessed 1 December 2019. 992 ibid., paras. 8, 14. 993 Sophie Yeo, ‘Ban Ki-moon Accepts Pacific Island Climate Declaration’ (10 January 2013) accessed 1 December 2019. 994 Republic of the Marshall Islands, ‘Republic of the Marshall Islands Joint National Action Plan for Climate Change Adaptation & Disaster Risk Management 2014 – 2018’ (2013) accessed 1 December 2019. 995 According to the Government of the RMI, almost half of the population was affected by the drought and lacked safe drinking water and food. See International Federation of Red Cross and Red Crescent Societies, ‘Red Cross launches Emergency Appeal for Drought hit Marshall Islands’ (24 June 2013) accessed 1 December 2019 996 Republic of the Marshall Islands (n. 994), 24 f. 997 David Saddington, ‘Small Islands, Big Impact: Marshall Islands Set Bold Carbon Targets’ Huffington Post (21 July 2015) accessed 1 December 2019. 998 ibid. 999 Republic of the Maldives, ‘National Adaptation Programme of Action’ (2007) accessed 1 December 2019. 1000 Lewis (n. 966).

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early warning system for disasters has also been launched which seeks to improve information dissemination prior to extreme disasters.1001 The Maldives has also committed themselves to achieving carbon neutrality by 2020.1002 The responsibility to prevent natural disasters is ‘part and parcel of the obligations of sovereignty’.1003 Therefore, states are equally obliged to avert humanitarian catastrophes linked to climate change. By these means, states also reduce climate-induced migration because minimising the impacts of climate change will eliminate the reasons of people to flee their homes. States can take a vast array of measures to fulfil their protection duties, as the examples of Ethiopia, Somalia, the RMI, and the Maldives have demonstrated. However, even if preventive measures are taken, humanitarian catastrophes often cannot be totally prevented. Therefore, how states react to these events is also fundamentally important. (2)

Responsibility to react

The responsibility to react becomes significant when all preventative measures have failed. In the context of climate change and climate-induced displacement, the responsibility to react could implicate a responsibility on individual states to react to humanitarian catastrophes linked to anthropogenic climate change.1004 Indeed, the most regulated aspect of International Disaster Law (IDL) is that of states’ responsibility to react in this way.1005 According to IDL, and corresponding to R2P, each state is primarily responsible for offering protection to its citizens in the aftermath of a disaster. Furthermore, it has the primary role in directing, controlling, coordinating, and supervising relief assistance in its territory.1006 It is now scientifically certain that the severity and frequency of the negative impacts of climate change are increasing and will further generate extreme weather events such as fires, floods, heat waves, and droughts.1007 States affected by a disaster are generally re1001 ibid. 1002 Warne (n. 968). 1003 Breau, ‘Responses by States’ (n. 936), 77. 1004 Although one cannot link a particular natural phenomenon individually to climate change, the IPCC stated that ‘[a] changing climate leads to changes in the frequency, intensity, spatial extent, duration, and timing of extreme weather and climate events, and can result in unprecedented extreme weather and climate events.’ See Intergovernmental Panel on Climate Change (ed), Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation. A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change (n. 979), 7. 1005 Compare also Breau, ‘Responses by States’ (n. 936), 79. 1006 Draft Articles on the Protection of Persons in the Event of Disasters (n. 978), Article 10. Compare also Breau, ‘Responses by States’ (n. 936), 76. 1007 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Cli-

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sponsible for providing for ‘disaster risk reduction, relief, and initial recovery assistance on their territory.’1008 A state may seek external assistance from other states, the UN, and other potential assisting actors only if it is unable to respond adequately to a disaster.1009 Most importantly, Article 13(2) of the Draft Articles stress that affected states are under an obligation not arbitrarily to withhold offers to humanitarian assistance. For states to comply with these requirements, they need to put forward reasonable grounds to refuse humanitarian aid. Therefore, because the IDRL framework is equally applicable to those humanitarian catastrophes linked to climate change, affected states bear the primary responsibility to provide relief assistance. For example, the Maldives has established a National Disaster Management Centre to improve the quality and coordination of relief efforts prior to and in the aftermath of disasters.1010 Furthermore, the state is currently drafting a National Emergency Operation Plan to clarify the roles, responsibilities, sequence of actions, and framework necessary for disaster management at every level.1011 The coordination of assistance plays an important role in this context, as IFRC’s desk study emphasises by dedicating a separate chapter to this subject.1012 In this regard, the study proposes the establishment of a national focal point or entity to coordinate relief efforts between national, international and non-state actors.1013

mate Change (n. 3), 72; Daniel A Farber, ‘International Law and the Disaster Cycle’ in David D Caron, Michael J Kelly and Anastasia Teletsky (eds), The International Law of Disaster Relief (Cambridge University Press 2014), 11–13. 1008 International Federation of Red Cross and Red Crescent Societies, ‘Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’ (30th International Conference, Geneva 26 November 2007), 30IC/07/R4 annex, Article 3(1); IFRC, Office for the Coordination of Humanitarian Affairs (OCHA) and Inter-Parliamentary Union, ‘Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (with commentary)’ (March 2013), para. 2a (although both documents are not considered to be legally binding); Breau, ‘Responses by States’ (n. 936), 80. 1009 Draft Articles on the Protection of Persons in the Event of Disasters (n. 978), Article 11. 1010 Maldives National Disaster Management Centre, ‘National Disaster Management Centre (NDMC)’ accessed 1 December 2019. 1011 See UN Development Programme, ‘Working Together Build to Protection against Disasters in the Maldives’ (27 December 2014) accessed 1 December 2019; Asian Disaster Risk Reduction Centre, ‘Information on Disaster Risk Reduction of the Member Countries’ accessed 1 December 2019. 1012 International Federation of Red Cross and Red Crescent Societies, ‘Law and Legal Issues in International Disaster Response: a Desk Study’ (n. 14), 150. 1013 ibid., 153.

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E.  Extension of the R2P

In summation, the responsibility under the ILC Draft Articles on the Protection of Persons in the Event of Disasters corresponds to the primary responsibility of individual states under R2P.1014 It would be consistent to apply this legal framework to natural disasters caused by anthropogenic climate change because R2P clarifies existing laws regarding the primary responsibility of states.1015 States are aware of these obligations, as the examples of the Maldives and Ethiopia’s program that provides cash- and food assistance to people during droughts and other emergencies, have demonstrated. Thus, states are already adopting a number of measures that fulfil their responsibility to react, although they do not necessarily claim to act under R2P. (3)

Responsibility to rebuild

The third element of R2P, the responsibility to rebuild, describes a responsibility ‘to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.’1016 This element pertains to the responsibility for post-conflict operations, which may include peace building measures or the promotion of good governance and sustainable development.1017 Another crucial post-conflict responsibility is to establish a functioning judicial system.1018 Both conflict and humanitarian disasters provoke the ‘loss of lives, homes and livelihoods’,1019 and therefore rebuilding works similarly by requiring recovery and reconstruction. Recovery is first and foremost a state responsibility, as with the responsibilities to prevent and to react. If people lack access to food, shelter, health care, or employment, states are responsible for providing these basic needs.1020 Because the ILC Draft Articles seem to solely focus on the immediate aftermath of disasters, which here is classified as pertaining to the reaction phase, they do not refer to a responsibility to rebuild.1021 Africa is one of the most vulnerable continents to climate change-induced natural disasters due to the continent’s high exposure to climate variability and low adaptive capaci-

1014 Compare also Andrea de Guttry, ‘Surveying the Law’ in Andrea de Guttry, Marco Gestri and Gabriella Venturini (eds), International Disaster Response Law (T. M. C. Asser Press 2012), 9. 1015 See chapter C. III. 2, p. 134 f. 1016 International Commission on Intervention and State Sovereignty (n. 13), XI. 1017 ibid., para. 5.1. 1018 ibid., para. 5.13. 1019 Breau, ‘Responses by States’ (n. 936), 84. 1020 ibid. 1021 Compare also ibid.

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ty.1022 Scientists of the Potsdam Institute for Climate Impact Research have identified three regions, namely North-east, Central, and South-east Africa, as ‘climate change hotspots’ most likely to experience negative consequences of climate change.1023 Generally, the states in these regions lack the ability to rebuild their infrastructures and to care for their populations when affected by a climate change-induced weather event. Therefore, the international community is most likely to be responsible to protect populations in this region. However, rebuilding efforts in SIDS are impossible in some cases because submergence constitutes an irreversible change to the physical environment of an island. In this regard, the responsibility to rebuild focuses more on assisting people to relocate away from threatened areas, although such assistance could also be subsumed under the responsibility to react. In summation, although often overlooked, it is conceivable that a broad range of mea­ sures falls under the responsibility to rebuild. In contrast to potential actions under the responsibilities to prevent and react, rebuilding efforts have not yet been codified in international law. However, it is well recognised that recovery and reconstruction measures are also the responsibilities of states to their populations in that failures in this regard equally endanger people. bb)

International community and the United Nations

Little existing international law has been developed with regard to the international community’s responsibility to provide relief to disaster-affected states. Most importantly, there is no overarching juridical baseline for international disaster response.1024 However, a number of organisations under the auspices of the UN are working to enhance states’ abilities to manage the impacts of natural disasters and climate change. These measures are categorised below into the three components of R2P. (1)

Responsibility to prevent

IDL is relatively underdeveloped as far as a responsibility to prevent bestowed on the international community and the UN is concerned. The ILC Draft Articles do not refer to prevention measures that should be adopted by the international community. 1022 Isabelle Niang and others, ‘Africa’ in Vicente R Barros and others (eds), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014), 1205. 1023 Christoph Müller and others, ‘Hotspots of Climate Change Impacts in Sub-Saharan Africa and Implications for Adaptation and Development’ (2014) 20(8) Global change biology 2505, 2513. 1024 International Federation of Red Cross and Red Crescent Societies, ‘Law and Legal Issues in International Disaster Response: a Desk Study’ (n. 14), 33.

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The Sendai Framework for Disaster Risk Reduction delineates the significance of international cooperation for effective disaster risk management, emphasising that DRR is a common concern for the international community.1025 Developed countries should fulfil their commitments of official development assistance to prevent disasters in developing countries.1026 For example, the United Nations Development Programme (UNDP) is working in Somalia to minimise the country’s vulnerability to the impacts of natural disasters and climate change, particularly to avert the risk of famine.1027 As noted above, the responsibility to prevent intends to remedy both the root causes and the more immediate sources of conflict.1028 Accordingly, UNDP supports long-term development solutions in Somalia aimed at reducing the root causes of vulnerability to climate shocks to build resilience.1029 National and state disaster response mechanisms, drought response initiatives, and long-term solutions to protracted crises are also provided by the UNDP.1030 The international community also supports states to build resilience against climate change, such as islands that are at risk of submerging. In April 2010, the government of the Maldives, the EU, and the World Bank Group signed a Memorandum of Understanding that created a trust fund to strengthen CCA and CCM in the country.1031 The EU has since contributed some €6.5 million to this multi-donor Maldives Climate Change Trust Fund.1032 Thus, potential responsibilities of the international community include assistance for people in need to prevent the occurrence of humanitarian catastrophes. This assistance could take the form of financial aid or active support in the respective countries in building dams and taking other measures to strengthen resilience against natural disasters. Similar measures should be also initiated to prevent humanitarian catastrophes both in East Africa and in SIDS.

1025 UN World Conference on Disaster Risk Reduction (n. 970), para. 19(a). 1026 ibid., para. 19(l). 1027 UN Development Programme, ‘Facing Famine – 20 million people are at risk of starvation in worst humanitarian crisis since World War II’ (21 April 2017) accessed 1 December 2019. 1028 International Commission on Intervention and State Sovereignty (n. 13), XI. 1029 UN Development Programme (n. 1027). 1030 ibid. 1031 The World Bank (n. 961). 1032 ibid.

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(2)

Responsibility to react

While the responsibility to react is certainly the best-known element of R2P, it is likewise the most controversial1033 because it also entails a responsibility of the international community to intervene when a state manifestly fails to protect its population.1034 Military intervention for humanitarian purposes should be an extraordinary measure,1035 and therefore non-military measures must be considered first.1036 In the context of climate change and climate-induced displacement, the responsibility to react could also imply the responsibility of the international community to assist states in their response to sudden and protracted disasters, as well as humanitarian catastrophes caused by climate change. The duty to provide aid to other states has significant precedent in international law.1037 As early as 1797, Emer de Vattel stated that, ‘if a nation is afflicted with famine, all those who have provisions to spare ought to relieve her distress, without however exposing themselves to want.’1038 According to the ILC Draft Articles, in the case of disasters, states, the UN, and other potential actors may assist the affected state, and the affected state may request this external assistance from other states, the UN, or other potential actors.1039 Therefore, if disaster-affected states are unable to offer adequate protection to their populations on their own, humanitarian assistance is necessary to protect the lives of victims.1040 The ICJ acknowledged the lawfulness of international humanitarian aid in the case of Nica-

1033 Breau, ‘Responses by States’ (n. 936), 80. 1034 International Commission on Intervention and State Sovereignty (n. 13), para. 2.29; ‘2005 World Summit Outcome’ (n. 105), para. 139. 1035 Evans and Sahnoun (n. 300), 103. 1036 Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 332. 1037 ‘One state owes to another state whatever it owes to itself, so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself. Such is the eternal and immutable law of nature’. Compare Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, Book II (edited and with an Introduction by Béla Kapossy and Richard Whitmore tr, Liberty Fund 1797, edited 2008), Chapter 1, para. 3. 1038 ibid., Chapter 1, para. 5. Compare also Breau, ‘Responses by States’ (n. 936), 78. 1039 Draft Articles on the Protection of Persons in the Event of Disasters (n. 978), Article 12. 1040 Peter Macalister-Smith, International Humanitarian Assistance: Disaster Relief Actions in International Law and Organizations (Martinus Nijhoff 1985), 56; Saechao (n. 945), 680.

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ragua, in which aid was supplied impartially and for human reasons,1041 thereby abiding by an entirely lawful intervention.1042 In response to the humanitarian crises in South Sudan, Somalia, Kenya, and Ethiopia, the EU allocated €165 million in 2017 to support the urgent needs of people suffering from famine and droughts.1043 However, one cannot link specific phenomena directly to climate change in every instance. Nevertheless, climate change has unquestionably aggravated the dire situation in East Africa.1044 Therefore, the action taken by the European Commission can be viewed as fulfilling its potential responsibility to react to humanitarian catastrophes linked to climate change. Responding to displacement caused by the disappearance of states will be a major challenge in the near future, particularly in terms of island submergences. In this regard, R2P could demand a responsibility for states to offer asylum to those people fleeing their homes that may be engulfed by the sea. Such a responsibility does not yet exist in international law. However, due to rising sea levels and more frequent and severe extreme weather events, the necessity to advance international law to include a responsibility to protect people displaced by climate change could emerge. Alex J. Bellamy, Director of the Asia Pacific Centre for the Responsibility to Protect, has already advocated for R2P to be invoked to protect people fleeing atrocities.1045 As two renowned scholars on 1041 The ICJ refers to the Fundamental Principles of the Red Cross, notably the principles of humanity and impartiality. Compare International Committee of the Red Cross, ‘The Fundamental Principles of the Red Cross: commentary’ (1979) accessed 1 December 2019. 1042 ‘There can be no doubt that the provision of strictly humanitarian aid [such as food, clothing, and medicine] to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.’ See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (n. 319), para. 242. 1043 European Commission, ‘EU scales-up its Response to Famine and Drought affected Countries in Horn of Africa with an additional €165 million’ (17 March 2017) accessed 1 December 2019. 1044 Carty (n. 176); Oxfam (n. 954). 1045 Alex J Bellamy, ‘The Responsibility to Protect and the “Migrant Crisis”’ (2016) accessed 1 December 2019. Compare also the comments by Erika Feller, former Director of International Protection at the UNHCR, who stated that ‘[…] we decided to try to encourage states to […] examine the adjustments necessary in the global protection regime to ensure there are no groups who fall through the cracks, that there are no gaps, if you like: in other words, to give genuine form to, and real Outcomes flowing, from the notion of the ‘responsibility to protect’’. See Erika Feller, ‘The Responsibility to Protect – Closing the Gaps in the International Protection Regime and the new ExCom Conclusion on Complementary Forms of Protection’ (Moving On: Forced Migration and Human Rights Conference, NSW Parliament House, Sydney, 22 November 2005) accessed 1 December 2019.

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I. Scenarios

refugee protection, Brian Barbour and Brian Gorlick, have argued, ‘[t]here may be no easier way for the international community to meet its responsibility to protect than by providing asylum and other international protection on adequate terms.’1046 Thus, R2P could guarantee the protection of people by granting asylum and non-refoulement.1047 A potential responsibility to react to humanitarian catastrophes linked to climate change could necessitate a wide range of measures, all of which fall short of the use of force. The use of force should only be used as a last resort by the international community when authorised by the UNSC. Therefore, R2P should not be understood as entailing a legal obligation of states to intervene, but rather states bear the political responsibility to react. (3)

Responsibility to rebuild

Although individual states bear the primary responsibility to rebuild in the aftermath of natural disasters, the international community is accountable for ‘[e]nsuring [the] sustainable reconstruction and rehabilitation’1048 of disaster-stricken communities. States can exploit the toolbox of measures proposed by the ICISS to assist affected states repair their infrastructure, rebuild their homes, and recreate financial markets.1049 For example, the World Bank is committed to attaining sustainable development in East African states that are at an increased risk of damage from natural disasters and climate change.1050 The World Bank funds the long-term development and disaster recovery programs of governments and has also begun post-disaster needs assessments in several countries.1051 Furthermore, in June 2017, the Third World Reconstruction Conference was convened in Brussels, with the goal of ‘identify[ing] effective and forward-looking approaches to achieve resilient post-crisis recovery in which climate and disaster risk reduction, fragility, and conflict considerations are mainstreamed.’1052 1046 Brian Barbour and Brian Gorlick, ‘Embracing the ‘Responsibility to Protect’: A Repertoire of Measures Including Asylum for Potential Victims’ (2008) 20(4) IJRL 533. 1047 ibid., 564. 1048 International Commission on Intervention and State Sovereignty (n. 13), para. 5.2. 1049 ibid., para. 5.4, 5.19. 1050 Compare The World Bank, ‘As Natural Disasters Rise, Countries Call for Action on Resilient Crisis Recovery Planning’ (6 June 2017) accessed 1 December 2019. 1051 To name an example, the World Bank has recently approved another $ 100 million for a program in Ethiopia focusing on long-term measures to prevent famine in the country. Compare The World Bank (n. 986). 1052 Global Facility for Disaster Reduction and Recovery, ‘World Reconstruction Conference 3’ (2017) accessed 1 December 2019.

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States could also be responsible to permit people displaced by climate change to stay in their country and to help them begin a new life.1053 The massive inflow of refugees to Europe in 2015 has demonstrated that there are significant challenges in managing incoming population flows. States should begin now to prepare for large numbers of ‘climate refugees’1054 even if they cannot estimate the exact number of people that will flee from the adverse impacts of climate change. The international community as a whole could therefore play a crucial role in rebuilding in the aftermath of natural disasters and catastrophes resulting from climate change. cc)

Non-governmental organisations

International NGOs equally play a crucial role in addressing humanitarian catastrophes. They differ from governmental organisations in that their mandates are established by their members rather than ‘individually endorsed by states’.1055 NGOs are defined as: [g]roups of individuals organised for the myriad of reasons that engage human imagination and aspiration. They can be set up to advocate a particular cause, such as human rights, or to carry out programs on the ground, such as disaster relief. They can have memberships ranging from local to global.1056 R2P does not impose responsibilities on NGOs. However, both the ICISS report and the 2005 World Summit Outcome document attribute a special role to them in terms of preventing, reacting, and rebuilding in cases of humanitarian disasters.1057 The ICISS report further specified the important role of NGOs in influencing states’ internal decision-making processes by directly addressing policy makers or indirectly those who influence them.1058 This emphasises that NGOs should act as a bridge between decision makers and populations.

1053 McAdam and Saul, ‘An insecure climate for human security? Climate-induced displacement and international law’ (n. 243), 401. 1054 As noted above, this notion has no legal implications, given that the 1951 Refugee Convention only applies to persons fleeing persecution or violence committed by human actors. 1055 International Federation of Red Cross and Red Crescent Societies, ‘Law and Legal Issues in International Disaster Response: a Desk Study’ (n. 14), 33. 1056 Steve Charnovitz, ‘Two Centuries of Participation: NGOs and International Governance’ (1997) 18(2) MichJIntlL 183, 186. 1057 ‘Beyond the UN itself, including all the organs and agencies in the system beyond the Secretariat, there are multiple other international actors whose roles are immensely relevant to the intervention issue, in particular regional and sub-regional organizations, and international NGOs, and the media.’ See International Commission on Intervention and State Sovereignty (n. 13), para. 8.20. 1058 ibid., para. 8.11.

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I. Scenarios

As far as the involvement of NGOs in environmental protection is concerned, Agenda 21 adopted at the 1992 UN Conference on Environment and Development is of great significance. It stresses the need for the UN system to cooperate with NGOs and to use their experience in policy and program design to create new environment protection mechanisms or enhance existing ones.1059 The following section analyses the past and potential future initiatives of NGOs, bearing in mind that these entities are not legally obliged to take such actions. (1)

Responsibility to prevent

The ICISS report admonishes the international community to support local institutions and organisations working to promote human rights as a root cause prevention measure.1060 However, regional and sub-regional organisations should also do their part by sharing their experiences to ‘mak[e] the UN the repository of best practice tools and strategies.’1061 For example, the NGO ‘CARE’ is committed to preventing acute watery diarrhoea by supporting water, sanitation, hygiene, and health efforts.1062 It also raises awareness and provides information on effective strategies for preventing these diseases through the use of clean water and maintaining good hygiene standards.1063 In conclusion, NGOs play a vital role in preventing humanitarian catastrophes. NGOs are present in the most vulnerable countries, and have a deep understanding of incountry situations, including the needs of the people. In anticipation of an impending humanitarian disaster, NGOs can launch emergency appeals to raise additional funds. NGOs also help to reduce climate change-induced displacement by assisting states to prevent humanitarian catastrophes. In light of more severe climate change impacts, the work of NGOs will become even more important in the future. (2)

Responsibility to react

In terms of the responsibility to react, the ICISS report proposes action by regional organisations under Chapter VIII as an alternative to Security Council action; however it is dependent on subsequent authorisation by the latter.1064 The report and the World 1059 ‘Agenda 21’ (United Nations Conference on Environment & Development Rio de Janeiro, Brazil June 3rd to 14th, 1992), para. 27.9(b). 1060 International Commission on Intervention and State Sovereignty (n. 13), para. 3.23. 1061 ibid., para. 3.39. 1062 Care, ‘Humanitarian Crisis in Somalia’ (February 2018) accessed 1 December 2019. 1063 ibid. 1064 International Commission on Intervention and State Sovereignty (n. 13), XIII.

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E.  Extension of the R2P

Summit Outcome document further stress the necessity of intervening military forces, civil authorities and humanitarian organisations coordinating their actions and working together to offer assistance to at-risk populations.1065 In 2011, 3.7 million people, more than half of the population of Somalia, needed humanitarian assistance due to major droughts.1066 In response, CARE carried out drought relief activities and provided food and nutrition assistance.1067 The ICRC also perform an important function in terms of disaster relief. The ICRC is neither an intergovernmental nor a non-governmental organisation because it was founded as a private association under Swiss law, but its actions are based on international law.1068 Therefore, the ICRC is commonly referred to as ‘hybrid’ in nature.1069 In the aftermath of conflicts and disasters, the ICRC establishes medical centres, delivers food, and repairs drinking-water points.1070 In 2013, two devastating natural disasters occurred in the Somali regions of Eastern Puntland and Middle Shabelle, where thousands of people suffered from the effects of a disastrous cyclone1071 and major flooding respectively.1072 In both regions, the ICRC distributed food, water, and other essentials, constructed latrines for displaced people at the airport, and delivered emergency surgical supplies to hospitals.1073 In terms of climate change induced displacement, the NGO ‘Displacement Solutions’ works to assist people whose homes have become uninhabitable due to the impacts of climate change, or are at risk of such.1074 Displacement Solutions is committed to finding new land and housing for affected communities.1075 1065 ibid., Operational Principle F; para. 7.22; ‘2005 World Summit Outcome’ (n. 105), para. 139. 1066 Care, ‘Somalia Famine’ (20 July 2011) accessed 1 December 2019. 1067 ibid. 1068 Hans-Peter Gasser, ‘The International Committee of the Red Cross (ICRC)’ in Frauke Lachenmann and Rüdiger Wolfrum (eds), The Law of Armed Conflict and the Use of Force: The Max Planck Encyclopedia of Public International Law (Thematic Series Volume 2. OUP 2017), para. 43.ibid. 1069 Gabor Rona, ‘The ICRC’s Status: in a Class of its Own’ (17 February 2004) accessed 1 December 2019; Gasser (n. 1068), para. 48. 1070 ibid., para. 26. 1071 International Committee of the Red Cross, ‘Somalia: Struggling in the Face of Twin Natural Disasters: Operational Update No 03/13’ (27 November 2013) accessed 1 December 2019. 1072 ibid. 1073 ibid. 1074 Displacement Solutions, ‘Climate Diplacement Land Initiative 2016 – 2020’ accessed 1 December 2019. 1075 ibid.

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I. Scenarios

Thus, consistent with the responsibility to prevent, the work of NGOs is vital for supporting disaster relief efforts, particularly food distribution and assistance to displaced people. (3)

Responsibility to rebuild

NGOs are also involved in reconciliation and reconstruction measures in the aftermath of conflicts and disasters. In Kenya, numerous studies recommend a number of mitigation measures, which need to be implemented to avert future natural disasters.1076 The Agency for Co-operation and Research in Development (ACORD) International implements the ‘Community Social Peace and Reconciliation Model’ (CSPR), which aims to enhance community capacity-building.1077 A modified version of this model, the so-called Community Peace Recovery and Reconciliation (CPRR) model, has been developed in 2011 by the UNDP in cooperation with ACORD.1078 According to this model, local mitigation mechanisms should be reinforced and communities themselves should acquire conflict resolution skills to avoid escalations.1079 This is an important point because conflicts in these countries mostly arise due to external factors, such as food and water scarcity, or disasters, but proficient social skills could aid reconciliation. Through this framework, the vision of long-term peace becomes more realistic. The Post-Disaster Needs Assessment 2008–2011 Drought report, published by the government with technical support from the EU, the UN, and the World Bank, estimated that some $ 3.9 billion need to be invested in recovery, reconstruction, and DRR programs ‘to break the cycle of drought’.1080 Accordingly, in 2012 and 2013, development partners agreed to assist Kenya in these recovery and reconstruction efforts by rehabilitating dams and water pans, and helping to establish livestock feed reserves.1081 In Somalia, a borehole was rebuilt by the Somalia Regional Water Bureau with funding from UNICEF, providing clean water to 9,000 people.1082 Thanks to these reconstruc-

1076 Peter Warutere, ‘East Africa: Why the Horn of Africa Is Starving Again’ (16 March 2017) accessed 1 December 2019. 1077 UN Development Programme, ‘Community Peace Recovery & Reconciliation: A Handbook for Generating Leadership for Sustainable Peace and Recovery Among Divided Communities’ (2011) accessed 1 December 2019, 6. 1078 See ibid. 1079 ibid., 13–14. 1080 Warutere (n. 1076). 1081 ibid. 1082 ibid.

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tion efforts, the impacts of the 2017 drought were diminished and Somalians were less dependent on external donors.1083 Given that Displacement Solutions is committed to finding long-term solutions for displaced people, its work can also be classified as upholding a responsibility to rebuild. In conclusion, although R2P primarily addresses individual states and the international community, NGOs can also assist states in fulfilling their protection duties. c)

Potential consequences

When R2P is applied to humanitarian catastrophes linked to climate change, besides the primary responsibility of individual states, the concept would place a political and moral responsibility on the international community to act if states manifestly fail to offer protection to their populations. As the situation needs to be comparable to the other crimes under the concept, R2P should only be applied in extreme humanitarian catastrophes with immense human suffering. A state that refuses to fulfil its secondary responsibility would not only draw strong criticism from the international community, but could also be condemned by the UNSC. Strong international pressure and, if backed by the UNSC members, a resolution of the Security Council would then force the state to act. If the state continues to ignore its responsibilities, states might consider sanctions, such as diplomatic or economic sanctions. These unilateral sanctions should not be confused with international sanctions against threats to international peace and security under Chapter VII of the UN Charter, which only the UNSC is allowed to impose. Unilateral sanctions by states, on the contrary, can be announced by each state. Furthermore, albeit not in a legal sense, extending R2P to humanitarian catastrophes would be a strong political symbol. The application of the concept to the issue of climate change would raise awareness of the impending dangers of global warming. People and states around the world would notice the gravity of environmental threats and their impacts on human beings and potentially rethink their own actions. It would also become clear that climate change is already altering weather patterns and that it is possible to establish a link between current natural disasters and climate change, although several factors play a role in this regard. In summation, applying R2P to humanitarian catastrophes linked to climate change would be aprimarily symbolic gesture. However, it would send a strong signal to states to act in the face of climate change, and it would isolate those states that are unwilling

1083 ibid.

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to make their contribution. As a matter of fact, a large number of states have recognised that everyone has to participate within the international community of states. d)

Potential legal bases for external intervention

Because R2P does not generate legal obligations, a different legal grounding is necessary for the legitimisation of external intervention by states. As a matter of fact, external intervention should only be considered as a last resort. The potential legal bases for the international community to intervene in the name of protecting civilians from humanitarian catastrophes include UNSC resolutions, self-defence, the ILC Draft Articles, and customary international law. aa)

UN Security Council resolution

The Security Council is the primary international organ responsible for the peaceful settlement of disputes (Chapter VI of the UN Charter) and addressing threats to international peace and security (Chapter VII). When the Security Council seeks to authorise the provision of relief to states affected by climate change-induced natural disasters, the consent of the affected state is absolutely necessary. If the state consents to external assistance, legal problems do not arise, because humanitarian assistance to a consenting state does not qualify as prohibited intervention according to Article 2(7) of the UN Charter. With regard to the humanitarian crises in East Africa and those Pacific island states at risk of total submergence, it can be assumed that most of these affected states would accept external assistance. For example, in January 2017, Ethiopia launched an UN-backed humanitarian appeal for $ 948 million to address the urgent alimentary and non-alimentary needs of their people due to failed rains and a disastrous El Niño event.1084 However, if the state refuses external assistance, the only option available to the Security Council is to act under Chapter VII of the UN Charter. If natural disasters have transboundary effects, or if a disaster accompanies violations of international environmental law, such events cannot be viewed as having purely domestic consequences.1085 According to Article 39 of the UN Charter, the UNSC has the sole power to determine the existence of ‘any threat to the peace, breach of the peace, or act of aggression’ and may subsequently authorise appropriate non-military or military measures under Articles

1084 UN News Centre, ‘Ethiopia: UN-Backed Humanitarian Appeal Launched, Seeking $ 948 million in 2017’ (17 January 2017) accessed 1 December 2019. 1085 Compare also Donald K Anton and Dinah Shelton, Environmental Protection and Human Rights (CUP 2011), 757.

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41 and 42. Therefore, the following section elaborates on the question of whether humanitarian catastrophes linked to climate change could be considered threats to peace. As early as 1992, the Zairean President of the Security Council stated that ‘[t]he nonmilitary sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.’1086 Nearly ten years later, then Secretary-General Kofi Annan urged the UN to confront what he called the ‘soft threats’ to international peace and security, among them climate change: All of us know there are new threats that must be faced – or, perhaps, old threats in new and dangerous combinations: new forms of terrorism, and the proliferation of weapons of mass destruction. But, while some consider these threats as self-evidently the main challenge to world peace and security, others feel more immediately menaced by small arms employed in civil conflict, or by so-called ‘soft threats’ such as […] climate change and environmental degradation. In truth, we do not have to choose. The United Nations must confront all these threats and challenges – new and old, ‘hard’ and ‘soft’.1087 Furthermore, a growing body of literature seeks to address the security implications of environmental issues.1088 Although the Security Council itself has not explicitly identified climate change as a threat to international peace and security, the Council has expressed ‘its concern that possible adverse effects of climate change may, in the long run, aggravate certain existing threats to international peace and security.’1089 As of November 2019, four formal debates of the UNSC on the relationship between climate change and human security have been held. In April 2007, the first such debate was convened,1090 which mainly focused on the question of whether the Security Council is the correct forum to discuss issues surrounding climate change and human security. Many delegates argued that there are other bodies more suitable than the UNSC to

1086 Bagbeni A Nzengeya, ‘Statement by the President of the Security Council’ (31 January 1992) accessed 1 December 2019, 3. 1087 Kofi Annan, ‘The Secretary General Address to the General Assembly’ (New York, 23 September 2003) accessed 1 December 2019. 1088 Compare, inter alia, Alexandre S Timoshenko, ‘Ecological Security: Response to Global Challenges’ in Edith Brown Weiss (ed), Environmental Change and International Law: New Challenges and Dimensions (UNU Press 1992), 418; Alexandra Knight, ‘Global Environmental Threats: Can the Security Council Protect our Earth?’ (2005) 80(5) NYULRev 1549; Frederick S Tipson, ‘Natural Disasters as Threats to Peace’ (February 2013), No. 324, United States Institute of Peace Special Report. 1089 Peter Wittig, ‘Statement by the President of the Security Council’ (20 July 2011) accessed 1 December 2019. 1090 For a full transcript of the debate, see UN Security Council, ‘5563rd Meeting of the Security Council’ (n. 936).

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deal with the security implications of climate change.1091 However, other countries, including the UK, the Netherlands, Switzerland, and several SIDS like the Maldives and Papua New Guinea, welcomed the debate, referring to climate change as a pertinent security issue.1092 The UNSC debated the implications of climate change on human security for the second time in July 2011.1093 Although some states still questioned whether the Security Council was responsible for deliberating on climate change,1094 many participants moved the discussion further towards addressing what actions the Council could take on the issue. Notably, Marcus Stephen, President of the Republic of Nauru, argued that the international community should further engage in discussions on the security dimensions of climate change. He proposed appointing a ‘Special Representative on Climate and Security’.1095 Speaking at the debate, Secretary-General Ban Ki-moon emphasised that climate change constitutes a threat to international peace and security.1096 Furthermore, as Maria Ribeiro Viotti, Permanent Representative of Brazil to the UN and other delegations indicated, the adverse effects of climate change may also aggravate existing threats to international peace and security.1097 The third Security Council debate on the nexus between climate change and conflicts around the globe was convened in July 2018.1098 Although states agreed on the fact that climate change and its impacts pose serious threats, they disagreed over the question of whether the Security Council should address climate change. Some states argued that the Council must address climate change as a security risk, while others warned against expanding the Council’s mandate.1099 The appointment of a new Special Representative of the Secretary-General on Climate and Security was once again proposed by Pacific SIDS.1100

1091 Notably the delegations from (rising) developing countries such as the Group of 77, China, Qatar and Russia, raised concern. See ibid., 10, 13–15, 17, 24. 1092 ibid., 2, 21, 23, 25, 29. 1093 6587th Meeting of the Security Council (n. 815). 1094 With the exception of China, Russia, the Islamic Republic of Iran, Bolivia and the Group of 77 raising concern, all states involved agreed that the security implications of climate change should be placed on the agenda of the Security Council. See ibid., 9, 13, 27; 6587th Meeting of the Security Council (20 July 2011), UN Doc. S/PV.6587 (Resumption 1), 19–20; 26. 1095 This function has not yet been created. See 6587th Meeting of the Security Council (n. 815), 23. 1096 ibid., 2. 1097 ibid., 8, 10. 1098 8307th Meeting of the Security Council (11 July 2018), UN Doc. S/PV.8307. 1099 Russia in particular was cautious to establish a connection between climate change and security risks. See ibid., 15 f. 1100 ibid., 25.

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The fourth Security Council debate on climate change was held in January 2019.1101 In her opening remarks, Rosemary DiCarlo, the Under-Secretary-General for Political and Peacebuilding Affairs, unequivocally stressed that the risks associated with climate change are not about future predictions, but rather constitute ‘a reality for millions of people around the globe, and they are not going away.’1102 She further qualified climate change as a threat multiplier, and urged states to recognise that deeds must follow words.1103 The fourth debate marked also the first time in history that a scientist of the UN World Meteorological Organisation participated to provide members of the UNSC with scientific data on the impacts of climate change. According to him, reducing access to food, deteriorating air quality, increasing risks of water conflict and leading to more internal displacement, climate change ‘is increasingly regarded as a national security threat’.1104 If environmental damage occurs in the context of an armed conflict, there are reasonable grounds to assume a threat to peace because the armed conflict itself might already constitute a threat. For example, the UNSC has classified the Kuwaiti oil fires caused by Iraq as a threat to peace because they took place during Iraq’s invasion of Kuwait in 1991.1105 Damages to the environment that occur in the absence of an armed conflict might be classified as a threat to international peace and security if they cause massive loss of life or population displacement.1106 As previously discussed, the situation in several East African countries is dire due to people suffering from droughts, food insecurity, and disease. Residents of SIDS are equally threatened due to the substantial risk that their homes are being submerged. A large number of people have been and will be displaced as a result. Therefore, there would be reasonable grounds to assume a threat to international peace and security in both cases. However, the final decision on whether such a threat exists must be made by the UNSC. In sum, the UNSC might authorise external intervention on the basis of Chapter VII of the UN Charter if such action is likely to diminish human suffering. In fact, this does not necessarily require military intervention,

1101 8451st Meeting of the Security Council (25 January 2019), UN Doc. S/PV.8451. 1102 ibid., 2. 1103 ibid., 3. 1104 UN News Centre, ‘Climate Change Recognized as ‘Threat Multiplier’, UN Security Council Debates its Impact on Peace’ accessed 1 December 2019. 1105 ‘Iraq […] is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources […] as a result of its unlawful invasion and occupation of Kuwait’. See SC Res. 687 (3 April 1991), UN Doc. S/RES/687, para. 16. 1106 Compare also Knight (n. 1088), 1571.

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which would not be feasible if populations are suffering from the effects of a natural disaster. bb) Self-defence

The UN Charter further permits external intervention in another country in cases of an armed attack against a state. However, it is difficult to argue that a natural disaster on the territory of another state could constitute an armed attack.1107 Therefore, justifying external intervention in a state affected by a humanitarian catastrophe with the concept of self-defence is not feasible. cc)

Draft Articles on the Protection of Persons in the Event of Disasters

The ILC Draft Articles on the Protection of Persons in the Event of Disasters could also provide a legal basis for states to provide humanitarian assistance to states affected by climate change-induced natural disasters. However, the ILC Draft Articles do not yet comprise elements of international law because the ILC only adopted its ‘first reading’ of the Draft Articles in 2014. States were asked to deliver written comments on the articles by January 2016. In May 2016, a draft preamble and 18 draft articles were adopted and submitted to the UN General Assembly, together with a recommendation to establish a Convention on the Protection of Persons in the Event of Disasters.1108 The General Assembly decided to include the topic in the provisional agenda of its seventy-third session.1109 Therefore, the ILC Draft Articles do currently not provide a legal basis for external intervention to provide humanitarian assistance. dd)

Customary international law

This subchapter expounds on the question of whether states bear a customary obligation to offer relief to states affected by natural disasters that result in the large-scale loss of life. For such an obligation to represent customary international law, the actions to be taken by states must ‘amount to a settled practice’, and ‘the states concerned must […] feel that they are conforming to what amounts to a legal obligation.’1110 As the notion of ‘may offer assistance’ in Article 12 of the Draft Articles already indicates, states seem to be unwilling to accept any legal obligation to provide humanitarian 1107 Compare also Anton and Shelton (n. 1085), 757. 1108 International Law Commission, ‘Sixty-eighth Session (2016)’ (9 May 2017) accessed 1 December 2019. 1109 ‘Protection of Persons in the Event of Disasters’ (13 December 2016), UN Doc. A/Res/71/141. 1110 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (n. 523), para. 77.

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assistance.1111 The aforementioned example of the 2008 cyclone in Myanmar further supports this assumption. In this case, states seeking to support the victims were unwilling to intervene without the authorisation of the Security Council. Therefore, the ILC Draft Articles do not reflect customary international law in terms of the obligations of the international community.1112 Although states have in the past been willing to intervene in situations of humanitarian catastrophes,1113 their actions are subject to the authorisation of the UNSC unless the affected state provides its consent. Therefore, a customary obligation of states to intervene in these situations does not exist. e) Suitability R2P is a suitable means to protect people who are suffering from humanitarian catastrophes linked to climate change. Although those who oppose the idea of extending R2P to humanitarian catastrophes fear that aid delivery under R2P would be conducted primarily by military forces, enabling ‘militaries [to] prioritize aid delivery over political goals’,1114 this analysis has established that R2P is not solely concerned with military intervention, but rather encompasses a variety of non-military measures. R2P could therefore serve as an important tool to admonish states to prevent, react to, and rebuild in cases of natural disasters linked to climate change. From the perspective of the victims, it makes little difference whether the source of their suffering is classified as a human rights violation or an impact of climate change. In both cases, the lives of people are threatened, and many are forced to leave their homes and abandon their lifestyles to survive. Furthermore, in both cases, states refusing to allow refugees to remain in their territory unnecessarily exacerbate civilian death tolls.1115 Consequently, states should have the responsibility to unconditionally offer aid and 1111 Compare, inter alia, United States, ‘Comments from the United States on the International Law Commission’s Draft Articles on “Protection of persons in the event of disasters”’ (2001) accessed 1 December 2019, 15. On the other hand, see Nordic Countries, ‘Joint Comments by the Nordic Countries on the Report of the International Law Commission on the Work of its Sixty-Sixth Session (Chapter V: Protection of Persons in the Event of Disasters)’ (2001) accessed 1 December 2019, 3: ‘[T]he Nordic countries note that it is necessary to set a duty for states not only to take relevant domestic measures, but also to engage in international cooperation’. 1112 Compare also Macalister-Smith (n. 1040), 7; Saechao (n. 945), 665. 1113 Compare also ibid., 699; Breau, ‘Responses by States’ (n. 945), 83. 1114 Benton Heath (n. 192), 434. 1115 Bellamy (n. 1045).

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protection to people suffering from the adverse effects of climate change, if affected states are unable to provide adequate relief to their populations. In this regard, international assistance after natural disasters linked to climate change will also contribute to future political stability in those countries. As previously discussed, the authorisation of the Security Council should be sought in all cases prior to any intervention of the international community. In this regard, addressing environmental degradation and climate change as a security issue through the Security Council would further emphasise the necessity of managing these threats through a collective security approach.1116 f) Remarks This analysis has revealed that the different components of R2P could be applied to situations of humanitarian catastrophes caused by climate change. Individual states, the international community, and NGOs all have different responsibilities in preventing, reacting to, and rebuilding in the aftermath of disasters and regarding islands that are under threat of disappearing due to rising sea levels. If a natural disaster leads to a humanitarian catastrophe on the territory of a single state, the culprit is easily identifiable, as in the case of cyclone Nargis in Myanmar in 2008. Furthermore, because human suffering in East Africa and the SIDS is presently immense, and in accordance with international human rights law, states bear the primary responsiblity to protect their people from humanitarian catastrophes. If states are unable to offer this protection on their own, they are required not to arbitrarily refuse humanitarian assistance offered by third states. The responsibilities of the international community only arise on the condition that states fail. In this regard, states need to cooperate in order to assist states affected by humanitarian catastrophes. These responsibilities have to some extent already been incorporated into IDRL, notably into the ILC Draft Articles and the Sendai Framework for Disaster Risk Reduction. Other elements, such as a potential responsibility of states to grant asylum to people fleeing the impacts of climate change, have not yet been codified. However, the intensifying impacts of climate change on the environment, ecosystems, the global economy, and human well-being necessitate the inclusion of these issues on the political agenda. Furthermore, as the IFRC desk study equally stresses, IDL does not have an ‘overarching legal framework’ like international humanitarian law.1117 The previous chapter has put emphasis on a number of relevant instruments to guide responses to humanitarian catastrophes, such as the ILC Draft Articles and the Sendai Framework for Disaster 1116 Compare also Knight (n. 1088), 1562. 1117 International Federation of Red Cross and Red Crescent Societies, ‘Law and Legal Issues in International Disaster Response: a Desk Study’ (n. 14), 15.

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Risk Reduction. In this regard, the overarching concept of R2P could take a coordinating function as to provide a more effective response to humanitarian catastrophes. Additionally, the UNSC should authorise an intervention of the international community in cases of a humanitarian catastrophe in a country. A Security Council resolution constitutes the only possible legal vehicle for the international community to provide humanitarian assistance to those states that refuse external intervention. However, because the ILC Draft Articles on the Protection of Persons in the Event of Disasters do not yet represent international law, and a rule of customary international law to intervene in case of disasters has not yet emerged, external intervention cannot be based on these grounds. In conclusion, there are reasonable grounds for the application of R2P to humanitarian catastrophes linked to climate change. Besides international responsibilities codified in IDRL, this particular reconceptualisation of R2P would establish an additional political and moral responsibility to support people in need.

2.

Mitigation of climate change

The second scenario concerns the responsibility of states to adopt positive long-term measures to mitigate climate change. Climate change is a man-made phenomenon1118 similar in kind to the atrocities which R2P has been designed to prevent.1119 Therefore, states could also be responsible for preventing the worst impacts of climate change from occurring. a)

Type and scale of human suffering

In contrast to the first scenario, human suffering in this scenario looms more as a future rather than a present threat. However, in some parts of the world, the impacts of climate change are already palpable and have begun to seriously affect the lives of people. For example, the IPCC has concluded with high confidence that the period between 1983 and 2012 was very likely the warmest 30-year period of the last 800 years in the northern hemisphere.1120 The aforementioned examples of East Africa and the Pacific islands indicate that climate change is definitely occurring, and that people in these regions

1118 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 48. 1119 Breau, ‘Responses by States’ (n. 936), 76. 1120 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 40.

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are suffering on a massive scale. Furthermore, since 1950, both the frequency and the intensity of extreme weather and climate events has changed.1121 However, although there is an overwhelming amount of scientific evidence that climate change is real,1122 how its impacts will manifest themselves in the future remains contested. The impacts of climate change are not yet measurable in some regions of the world, such as in most parts of Europe, and predicting future developments is difficult. Accordingly, it is impossible to measure the precise magnitude of human suffering at the hands of climate change. Therefore, long-term measures to mitigate climate change primarily seek to prevent future human suffering rather than current anguish. b)

Actors involved and their potential responsibilities

Climate change can be characterised as a ‘collective action problem at the global scale’ because a variety of agents emits GHGs that accumulate over time, the impacts of which are felt collectively on a global scale.1123 Thus, a situation of shared international responsibility arises which requires international cooperation to cope with climate change. Therefore, mitigating the impacts of climate change necessitates a multitude of actors working together, such as individual states, the international community, individuals, companies, and NGOs.1124 The goal of mitigation is to limit future climate change by lowering emissions and increasing sinks of GHGs.1125 The following section does not distinguish between the responsibilities to prevent, react, and rebuild, because CCM is solely concerned the responsibility to prevent. Potential reactions of the international community to climate change-related disasters have already been discussed in the previous chapter. Given that some impacts of climate change are already regarded as irreversible,1126 the responsibil1121 Mirza (n. 48), 238. 1122 The IPCC recently stated that global warming is ‘unequivocal’. See Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 40. 1123 ibid. 1124 Compare also Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Mitigation of Climate Change. Working Group III Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Ottmar Edenhofer, Ramón Pichs-Madruga, Youba Sokona, Ellie Farahani, Susanne Kadner, Kristin Seyboth, Anna Adler, Ina Baum, Steffen Brunner, Eickemeier, Patrick, Kriemann, Benjamin, Jussi Savolainen, Steffen Schlömer, Christoph von Stechow, Tim Zwickel, and Jan C. Minx, CUP 2014), 138. 1125 Yamin and Depledge (n. 38), 76. 1126 To name an example, the IPCC stated that ‘[w]arming caused by CO2 emissions is effectively irreversible over multi-century timescales unless measures are taken to remove CO2 from the atmosphere.’ See Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 63.

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ity to prevent climate change appears, at least partly, impossible. However, bearing in mind that the worst predicted impacts of climate change such as droughts, longer and more intense heat waves, flooding, and stronger storms are yet to come, states may still have options available and have indeed already initiated several mitigation measures. The following section expands up on these measures. aa)

Individual states

A responsibility of individual states to mitigate climate change could take various forms. Due to the relatively low cost of reducing emissions, carbon reductions in the energy sector are an important policy option.1127 Accordingly, under R2P, individual states could bear the responsibility to produce low-carbon electricity using energy sources such as biomass, geothermal, hydroelectric, nuclear, solar, and wind power1128 to reduce the atmospheric concentrations of CO2. As noted above, to keep global temperature rise below 2 °C relative to pre-industrial levels, the share of zero- and low-carbon energy supply from renewable sources must increase by threefold to nearly fourfold by the year 2050.1129 To achieve this goal, researchers have proposed the implementation of a ‘carbon emissions portfolio standard’ for states, which obliges suppliers of electricity to meet an overall constraint on their carbon emissions.1130 Another potential responsibility of individual states concerns effective demand-side management. By reducing energy demand in the private sector, associated emissions may be substantially diminished.1131 Thus, governments could be responsible for raising public awareness of potential measures to be undertaken by households. These mea­ sures include living car-free, avoiding airplane travel, eating a plant-based diet, and using low-energy light bulbs and A-rated electrical appliances.1132

1127 Jay Apt, David W Keith and M. G Morgan, ‘Promoting Low-Carbon Electricity Production’ (2007) 23(3) Issues in Science and Technology accessed 1 December 2019. 1128 ibid.; Fay and others (n. 58), 29 f. 1129 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 82. 1130 Apt, Keith and Morgan (n. 1127). 1131 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 100. 1132 Rory Sullivan and Andy Gouldson, ‘Whose Responsibility is it to Reduce Carbon Emissions?’ The Guardian (18 April 2011) accessed 1 December 2019; Seth Wynes and Kimberly A Nicholas, ‘The Climate Mitigation Gap: Education and Government Recommendations Miss the Most Effective Individual Actions’ (2017) 12(7) ERL 1.

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A number of states have adopted national laws on CCM.1133 For example, the UK adopted the Climate Change Act of 2008 which seeks to transform the UK to a low-carbon economy.1134 For these purposes, the Act authorises ministers to adopt the measures necessary to limit GHG emissions.1135 The Secretary of State for Energy and Climate Change is responsible for ensuring that the UK’s amount of GHG emissions for the year 2050 is at least 80 % lower than the base year of 1990.1136 As discussed earlier in chapter B, in October 2018, an appeals court in The Hague confirmed a historic judgement on climate change which places the obligation on the Dutch government to accelerate carbon emissions cuts,1137 derived from international human rights law. The judges ruled that GHG reductions of at least 25 %, measured against 1990 levels, are required by 2020. While it remains to be seen whether other courts will follow the Dutch court, the judgement highlights the increasing recognition of the legal dimension of climate change. A corresponding verdict by the ECtHR would carry significant weight in terms of legal obligations to counteract climate change. In sum, a wide range of measures in different branches exists for individual states in terms of CCA. A potential responsibility of states to enter into international climate agreements is discussed in the next section. bb)

International community and United Nations

The international community could bear a responsibility to sign on to positive longterm measures aimed to mitigate climate change. This responsibility is particularly pertinent to global participation in multilateral climate agreements. A large number of treaties within the UNFCCC require states to protect people by reducing their GHG emissions,1138 including the Kyoto Protocol and the 2015 Paris Agreement. The Paris Agreement established a new principle of international environmental law, namely the principle of progression,1139 requiring that the efforts of all states represent 1133 For an overview of national legislation and strategies to mitigate climate change, see Navroz K Dubash and others, ‘Developments in National Climate Change Mitigation Legislation and Strategy’ (2013) 13(6) Climate Policy 649. 1134 Climate Change Act 2008 (26 November 2008). 1135 ibid., Article 47. 1136 ibid., Article 1(1). 1137 Neslen (n. 255). 1138 Breau, ‘Responses by States’ (n. 936), 76. 1139 ‘The efforts of all Parties will represent a progression over time, while recognizing the need to support developing country Parties for the effective implementation of this Agreement’; ‘Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution’; ‘[…] Developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances’. See Paris Agreement

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a progression over time in which every new effort aims to exceed previous ones.1140 In this regard, the Paris Agreement does not set binding annual emission targets. States are rather free to determine their own reduction targets, the so-called ‘Nationally Determined Contributions’ (NDCs). Applied to the prevention of the most devastating impacts of climate change, the principle of progression requires states’ NDCs to progress when compared to previous contributions. Under R2P, states could further be required to vote in favour of climate change-related resolutions in the Security Council and the General Assembly to support the global battle against anthropogenic climate change. The UNSC in particular could play an important role in combatting climate change; this is discussed in section d) aa) of this chapter. In conclusion, a potential R2P of the international community could entail the responsibility to sign and ratify international climate agreements, and to support related resolutions in the Security Council and the General Assembly. This section is devoted to outlining potential responsibilities of the international community and the UN. This is followed by a discussion of the legal bases and the suitabilities in sections d) and e) of this chapter. cc)

Individuals and companies

Individuals and companies could also participate in mitigating climate change through measures such as enhancing efficient energy use in households, using public transportation, and reducing food wastes.1141 The Centre for Climate Change Economics and Policy at the University of Leeds conducted a three-year research project on the role of corporations in climate change governance.1142 Given that corporate activity con­ tributes significantly to global GHG emissions, many companies have instituted a broad range of measures to reduce their own emissions and to influence the behaviour of their suppliers and customers.1143 These measures can be divided into three categories.

(n. 100), Art. 3, 4.3 and 4.4. Compare also Christina Voigt and Felipe Ferreira, ‘‘Dynamic Differentiation’: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement’ (2016) 5(2) Transnational Environmental Law 285, 296; Voigt (n. 291). 1140 Voigt and Ferreira (n. 1139), 296; Voigt (n. 291). 1141 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3). 1142 Centre for Climate Change Economics and Policy, ‘Climate Governance beyond the State?’ accessed 1 December 2019. 1143 ibid.

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Firstly, some companies have attempted to reduce embedded emissions in cooperation with their suppliers through Product Carbon Footprint (PCF) standards,1144 and to reduce GHG emissions from transport and logistic processes.1145 By establishing uniform standards, global industrial GHG emissions could be regulated to maintain damage from global warming to a minimum. However, such a standard does not yet exist on a global scale. Secondly, the provision of low emission products and services represents another important step to reduce GHG emissions. Low-energy light bulbs as well as A-rated electrical appliances are among the most important energy efficient products that companies could embrace.1146 Thirdly, companies can encourage changes in customer behaviour through product labelling (e. g. airfreight labels and carbon footprint information) and information on potential actions to reduce emissions (e. g. low-temperature washing).1147 In conclusion, companies can not only establish their own mitigation measures, but also encourage their customers to live more sustainable lifestyles. dd)

Non-governmental organisations

NGOs are also capable of engaging in a variety of measures on a local and a global level to aid in reducing GHG emissions. Their primary role is to promote governmental and civil society action in CCM. NGOs are also able to foster exchange between the government and its people by acting as a bridge between these two groups. In terms of state action, a number of NGOs are involved in international climate negotiations as observers, which means that they are allowed to attend the sessions of the convention bodies.1148 NGOs work therein to enhance support for international climate agreements through lobbying activities.1149 For example, a number of NGOs have been 1144 A PCF is a ‘means for measuring, managing and communicating GHG emissions related to goods and services’. See PRé Sustainability, ‘Product Carbon Footprint Standards: which Standard to Choose?’ (3 August 2012) accessed 1 December 2019. 1145 Sullivan and Gouldson (n. 1132); Centre for Climate Change Economics and Policy (n. 1142). 1146 Sullivan and Gouldson (n. 1132). 1147 Centre for Climate Change Economics and Policy (n. 1142). 1148 To name an example, over 2,000 NGOs are admitted as observers to the UNFCCC as of 2016. Compare UNFCCC, ‘Observer Organizations’ accessed 1 December 2019. 1149 Barbara Gemmill and Abimbola Bamidele-Izu, ‘The Role of NGOs and Civil Society in Global Environmental Governance’ in Daniel C Esty and Maria H Ivanova (eds), Global Environmental Governance: Options & Opportunities (Yale School of Forestry & Environmental Studies 2002), 78; Anita Krajnc and Larry Wartel, ‘Top 10 Canadian NGO Strategies & Tactics to Combat Climate Change’

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engaged in raising awareness of the deleterious health and environmental impacts of fossil fuel use.1150 NGOs could also help to reduce emissions by raising awareness of the causes and impacts of climate change and by providing guidance on potential countermeasures.1151 By acting as catalysts for environmental action in civil society, NGOs might discover ways in which citizens could engage in CCM.1152 They can also support people in living more sustainable lifestyles through waste reductions and the use of energy-efficient products. c)

Potential consequences

Establishing a responsibility of states to take positive long-term measures to mitigate climate change could have extensive implications. A state that failed to sign an environmental agreement would be viewed as having violated its responsibilities under R2P. Potential consequences of this could include an intervention by the international community to admonish the state into participating in the treaty backed by Security Council action. The Security Council can, in cases of a threat to international peace and security under Article 39 of the UN Charter, determine appropriate measures according to Article 41 and 42 of the UN Charter. Another option for state parties to the Rome Statute and the Security Council would be to refer a situation to the ICC to hold individual leaders criminally responsible for neglecting their environmental obligations. Assuming that states were required to vote in favour of climate change-related resolutions in the UNSC and the General Assembly, vetoing respective resolutions would create strong international pressure, leaving the state isolated from the rest of the international community. Whereas this section was devoted to illustrating potential factual consequences of a responsibility to mitigate climate change, the feasibility and suitability of such an approach and potential legal bases are discussed in the next sections.

(2004) 38(1) Canadian Dimension accessed 1 December 2019. 1150 Duncan Green, ‘How Civil Society and Others Achieved the Paris Climate Agreement’ (26 April 2016) accessed 1 December 2019. 1151 Compare also Joseph Szarka, ‘Non-Governmental Organisations and Citizen Action on Climate Change: Strategies, Rationales and Practices’ [2014] The Open Political Science Journal 1. 1152 ibid., 7.

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d)

Potential legal bases for external intervention

Potential legal bases for external intervention to enforce mitigation action include UNSC resolutions and the justification of self-defence. aa)

UN Security Council resolution

As noted above, the Security Council can, acting under Chapter VII of the UN Charter, determine the existence of ‘any threat to the peace, breach of the peace, or act of aggression’ and authorise appropriate non-military or military measures under Articles 41 and 42. Therefore, the question that arises is whether climate change constitutes a threat to international peace and security. Climate change has already had palpable effects on many regions of the world, and its cataclysmic impacts are currently being felt in the most vulnerable countries. However, most of the effects of climate change are only visible on a local scale and do not necessarily transcend state borders.1153 Increasing temperatures, droughts, and extreme weather events are commonly understood as intrastate problems rather than threats to international peace and security, unless they lead to conflict and mass migration. In fact, the majority of people displaced by natural disasters and climate change do not cross borders, but rather stays within their own countries.1154 Therefore, the world is currently witnessing threats to national security that do not permit Security Council intervention. It has been argued that human rights violations resulting from climate change could require a more active stance on the part of the Security Council in reacting to polluters that fail to establish appropriate mitigation measures.1155 The Security Council has not yet deliberated on CCM, stating that it does not accept such a responsibility. However, with more frequent and more intense extreme weather events, and rising sea levels and erosion leading to the disappearance of entire islands, concrete threats to international peace and security might arise in the future. Currently, the Security Council cannot force states to mitigate climate change because projections of future climate change do not constitute current threats. It remains to be seen how this will change in the future. 1153 Compare also Pierre Thielbörger, ‘Climate Change and International Peace and Security: Time for a ‘Green’ Security Council?’ in Hans-Joachim Heintze and Pierre Thielbörger (eds), From Cold War to Cyber War: The Evolution of the International Law of Peace and Armed Conflict over the last 25 Years (Springer 2016), 83. 1154 UN High Commissioner for Refugees, ‘In Photos: Climate Change, Disasters and Displacement’ (1 January 2015) accessed 1 December 2019. 1155 Christina Voigt, ‘Security in a “Warming World”: Competences of the UN Security Council for Preventing Dangerous Climate Change’ in Cecilia Bailliet (ed), Security: A multidisciplinary normative approach (Martinus Nijhoff Publishers 2009), 300.

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bb) Self-defence

As noted above, the justification of self-defence requires the existence of an armed attack against a state. However, a state that fails to adopt mitigation measures may be in violation of international environmental law, but it has not committed an armed attack. Therefore, in the absence of an armed attack against a state, the rationale of self-defence cannot force states to mitigate climate change. e) Suitability Establishing a responsibility to take measures to mitigate climate change based on R2P does not appear feasible. Firstly, although the responsibility to rebuild had not been included into the 2005 World Summit Outcome document, the essence and most innovative factor of R2P is its holistic nature, given that it does not only apply to the reaction phase, but rather additionally encompasses preventive and rebuilding responsibilities. It is not possible to apply all three components of R2P in terms of CCM because only the sphere of prevention is relevant. Furthermore, and similar to the sequence foreseen in the UN Charter, which prescribes that non-military options must be exhausted before the use of force, the last resort for states would be a military intervention in the dissenting state. Therefore, it would seem inappropriate and in violation of the principle of proportionality to intervene militarily to coerce states into signing environmental agreements. However, such a consequence might be possible in the future, when the impacts of climate change become more visible, but at this point it would be too late to sign environmental agreements. In fact, bringing individual leaders before the ICC further does not constitute an appropriate means to enforce participation in agreements. If climate change continues unabated, holding states accountable before the ICJ for their failure to adopt mitigation measures might become an option in the future. In the absence of an International Environmental Court, the ICJ might be the most appropriate forum to evaluate states that neglect their environmental obligations. Between 1993 and 2006, the ICJ disposed of an environmental chamber dedicated for environmental cases. The chamber was abolished because it did not try a single case in 13 years. However, the full ICJ also deals with environmental cases, as in the case concerning the Gabčíkovo–Nagymaros Dams project.1156 Therefore, it remains to be seen whether future cases of the ICJ will include disputes over the mitigation of climate change, and whether an environmental chamber will be reinstalled if the impacts of climate change become more severe.

1156 Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (n. 290).

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Another challenge that accompanies the potential responsibility to mitigate climate change concerns the ‘free-rider’ problem. When managing global challenges such as climate change, each actor intends to pay the least possible cost, hoping that other actors assume the costs of achieving the common goal of emission reduction.1157 The ‘free rider’ therefore enjoys the benefits of CCM, although it has contributed little because other actors have made their contributions.1158 Therefore, there are significant consequences to adopting an optional CCM system, making the establishment of global emission standards a more attractive option. In conclusion, applying R2P to enforce CCM is not suitable. Most of the impacts of climate change are future rather than current threats, and it is not possible to identify a particular culprit to blame for climate change. Furthermore, apart from the discussed examples of East Africa and the SIDS, human suffering is not manifest, but rather looms as a future possibility. f) Remarks This analysis has demonstrated that R2P cannot be reasonably applied to enforce CCM. A number of different actors should be involved in CCM. Individual states, the international community, individuals and companies, and NGOs can all take different measures with the overall aim of reducing global GHG emissions. However, R2P only concerns the behaviour of states, and their constituent role as members of the international community; individuals, companies and NGOs do not have responsibilities in the same manner. As noted above, relying on this multitude of actors being potentially involved in CCM could also create major challenges, most importantly the ‘free rider’ problem. When confronting a global challenge such as climate change, countries have the incentive to benefit from the efforts of others without taking proportionate domestic mitigation measures. In this regard, the establishment of global emission standards, dependent on the respective capacities of states, would be a more attractive option. Furthermore, it has become apparent that there is no legal basis for external intervention to enforce CCM. Given that the effects of climate change are mostly visible only within state borders, climate change in general currently does not represent a threat to international peace and security. Therefore, in the absence of a current security threat, the Security Council is unlikely to adopt legally binding resolutions on CCM. Other potential legal bases for external intervention are not apparent. However, climate 1157 Compare Matthew E Kahn, ‘No More Free Riders? Lessons from the Paris Climate Change Mitigation Treaty’ (16 December 2015) accessed 1 December 2019. 1158 ibid.

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change will have more severe impacts in the long term, and will lead to an increase in migration as people that are forced to flee their homes. Therefore, climate change will play a defining role in future peace and security challenges. In this regard, future climate change will reveal whether a different assessment is required. Therefore, R2P cannot be applied to this second scenario.

3. Conclusion This analysis has demonstrated that applying R2P to climate change is only feasible in the first scenario, in terms preventing, reacting to, and rebuilding in the aftermath of humanitarian catastrophes linked to climate change. In this regard, the R2P framework fits aptly to ensure the protection of people.1159 A culprit is easily identifiable in this scenario in which people are suffering on a massive scale and an (essentially non-military) intervention of the international community has reasonable prospects of success. Furthermore, climate change-induced displacement and relocation create additional challenges because people from different cultural and political backgrounds will be forced to live in close proximity.1160 For example, in the Solomon Islands, ethnic rivalry has led to ongoing conflicts over land and resources.1161 In this scenario, if a population from the island Guadalcanal in the Solomon Islands is relocated to the island Malaita, it may come into confrontation with the Malaitan population, which could lead to ethnic violence. Therefore, the security dimensions of climate change can no longer be ignored. If the Security Council in this scenario authorised measures under Chapter VII of the UN Charter, states would be obligated to intervene. Disobedience of the Security Council would then amount to a violation of Article 25 of the UN Charter. In the second scenario, human suffering is a future threat that is not yet measurable. Furthermore, one cannot identify a single culprit of climate change because many states, individuals, and companies are contributing to this global phenomenon. Most importantly, an intervention of the international community would lack reasonable prospects of success; taking military means to force states into signing environmental treaties does not seem appropriate in this context. Having determined the potential applicability of R2P to humanitarian catastrophes linked to climate change, the next section moves on to a theoretical basis of such a responsibility, and also examines the basis of a responsibility to mitigate climate change.

1159 Compare also, with regard to the three phases of a disaster, Valencia-Ospina, Eduardo, Special Rapporteur, ‘Preliminary Report on the Protection of Persons in the Event of Disasters’ (5 May 2008), UN Doc. A/CN.4/598, para. 55. 1160 Compare also Displacement Solutions (n. 1074). 1161 ibid.

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II.

Theoretical foundations

The 2001 ICISS report delineates the core foundations of R2P, notably the obligations arising out of the concept of state sovereignty; the responsibility of the UNSC for the maintenance of international peace and security; legal obligations under international human rights law, humanitarian law, and national law; and the developing practice of states, regional organisations and the Security Council.1162 The following section analyses whether these foundations are suitable for establishing a responsibility to protect people from humanitarian catastrophes that are linked to climate change, and a general responsibility to mitigate climate change. As the fourth foundation is, in the author’s understanding, already included in the other foundations, the analysis focuses on the first three foundations.

1.

Extreme humanitarian catastrophes

The first scenario in which R2P should be applied is an extreme humanitarian catastrophe linked to climate change. a)

Obligations inherent in the concept of sovereignty

As discussed earlier, R2P is based on a different perception of the essence of sovereign­ ty, requiring a shift in understanding from sovereignty-as-control to sovereignty-asresponsibility.1163 The following section determines whether the concept of state sovereignty may be a basis for the responsibility of individual states to protect their own populations from humanitarian catastrophes linked to climate change, and a secondary responsibility of the international community to act where necessary. aa)

Responsibility of affected states

The notion of sovereignty does not only entail rights, but also carries with it obligations of states to their own citizens and to other states.1164 It is beyond any doubt that state sovereignty assumes a responsibility of states to assure the welfare of all people within their jurisdiction.1165 Accordingly, if a state considers itself to be a ‘legitimate and 1162 International Commission on Intervention and State Sovereignty (n. 13), Synopsis, XI. 1163 ibid., para. 2.14; Evans and Sahnoun (n. 300), 101; Thakur, ‘In Defence of the Responsibility to Protect’ (n. 299), 161; Kreuter-Kirchhof (n. 296), 340. See also Peters, ‘Humanity as the A and Ω of Sovereignty’ (n. 471), 514, who argues that the R2P ‘definitely ousted the principle of sovereignty from its position as a Letztbegründung (first principle) of international law.’ 1164 See section C. II. 1, p. 96. See also Herdegen, ‘Souveränität heute’ (n. 482), 123; Kreuter-Kirchhof (n. 296), 340. 1165 Deng, ‘From ‘Sovereignty as Responsibility’ to the ‘Responsibility to Protect’’ (n. 472), 354; Herdegen, ‘Souveränität heute’ (n. 482), 123; Kreuter-Kirchhof (n. 296), 340. See also section C. II. 1.

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respected member of international society’,1166 it is, by virtue of its sovereignty, responsible for protecting its citizens and adequately assisting them when necessary. One can even go so far as to say that one of the primary functions of a state is to care for the wellbeing of its population. Therefore, a strong state is able to offer protection to its people, while a weak state is incapable of protecting its citizens. Humanitarian catastrophes occurring within the boundaries of a state are extreme events that require immediate and coordinated action on the part of states. Accordingly, the notion of sovereignty-as-responsibility not only entails the responsibility of states to act during and after such catastrophes but should also be interpreted as involving protective responsibilities. The concrete duties arising in this regard have been discussed in the previous section. If governments do not adhere to these responsibilities, they may not only draw outside criticism, but must also fear disapproval and, in extreme cases, sanctions by the international community.1167 Furthermore, the secondary responsibility of the international community is activated. In sum, individual states’ responsibility to protect people from humanitarian catastrophes linked to climate change might be based on the notion of sovereignty-as-responsibility. bb)

Responsibility of the international community

Establishing a responsibility of the international community to respond to humanitarian catastrophes caused by climate change based on the notion of sovereignty-asresponsibility poses several problems. At first glance, it appears that state sovereignty solely entails the responsibility of states to care for their own populations. However, in light of the Western canon of values, nationalities and international boundaries cannot preclude a responsibility of the international community for the well-being of people. Given that state boundaries have in many cases been drawn arbitrarily, such as the straight lines between the US and Mexico, the responsibility of states should not end at their state borders. The people-centred approach of R2P together with the principle of solidarity clearly envisages a global responsibility of the international community towards humankind. As developments such as the emergence of the concept of ‘common concern of mankind’ indicate, it is necessary for international law to switch from sovereignty to solidarity, or, at least, to find a balance between these two principles.

1166 Deng, ‘From ‘Sovereignty as Responsibility’ to the ‘Responsibility to Protect’’ (n. 472), 354. 1167 Compare also ibid., 360.

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According to UNGA resolutions 56/151 and 57/213, solidarity constitutes a fundamental value, by virtue of which global challenges must be managed in a way that distributes costs and burdens fairly, in accordance with basic principles of equity and social justice, and ensures that those who suffer or benefit the least receive help from those who benefit the most.1168 As Laurence Boisson de Chazournes has accurately stressed, the notion of solidarity has two dimensions: the ‘horizontal’ and the ‘vertical’ dimension.1169 The horizontal dimension concerns a ‘state-to-state’ form of solidarity with the aim of reducing existing inequalities between states.1170 The vertical dimension of solidarity which sees solidarity as a call to assist people facing serious dangers that cannot be prevented by their own state,1171 is of utmost relevance for the concept of R2P. Accordingly, the latter dimension of solidarity is about the ‘relationship between states and populations of other states’.1172 This perfectly fits the residual responsibility of states under R2P, emphasising that R2P and the principle of solidarity are closely ’intertwined’.1173 Similar to R2P, the principle of solidarity is not meant to establish legal obligations of states, but should rather take a ‘more inspirational but still constitutional role in facilitating inter-branches cross-fertilisation’.1174 Karel Wellens has described R2P as the ‘first major articulation on a global level of the constitutional principle of solidarity’,1175 which seems feasible, given that sovereignty constitutes an overarching principle that should not only govern relationships between states, but also between states and people. Therefore, emanating from the understanding of sovereignty-as-responsibility and the principle of solidarity, states are responsible for the preservation of humanity by assisting other states in managing humanitarian catastrophes, particularly for the sake of future generations. In this regard, human beings should be seen as humans, and not as nationals of a particular state. Thus, state sovereignty should be interpreted as encompassing a responsibility of the international community to protect people from humanitarian catastrophes linked to climate change. However, the sovereignty of the affected 1168 ‘Promotion of a Democratic and Equitable International Order’ (8 February 2002), UN Doc. A/ RES/56/151, para. 3(f); ‘Promotion of a Democratic and Equitable International Order’ (25 February 2003), UN Doc. A/RES/57/213, para. 3(f). 1169 Laurence Boisson de Chazournes, ‘Responsibility to Protect: Reflecting Solidarity?’ in Rüdiger Wolfrum and Chie Kojima, Solidarity: A Structural Principle of International Law (Springer 2010), 102. 1170 ibid. 1171 ibid. 1172 ibid. 1173 ibid., 109. 1174 Karel Wellens, ‘Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflection’ in Rüdiger Wolfrum and Chie Kojima (ed), Solidarity: A Structural Principle of International Law (Springer 2010), 30. 1175 ibid.

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state must invariably be respected so that unilateral intervention without a resolution of the UNSC is prohibited, unless the state declares its consent. Recent natural catastrophes have demonstrated the willingness of the international community to provide relief to affected states, which highlights that states accept a political responsibility to act. Taking the aforementioned example of the 2008 cyclone Nargis in Myanmar, it has become apparent that the international community was ready to act, in a timely and decisive manner, to protect affected people in Myanmar. However, the case of Myanmar also reveals that IDRL is still underdeveloped, and that the UNSC is often unable to act. Nevertheless, most states live up to their moral responsibility to take action if natural disasters occur. Overall, although individual states bear the primary responsibility to care for their populations, the notion of sovereignty-as-responsibility admonishes states to not stand idly by while people suffer from natural disasters whose frequency and magnitude are enhanced by climate change. Professor Rüdiger Wolfrum has concisely pointed out that ‘the principle of solidarity reflects the transformation of international law into a value based international legal order’.1176 This reflection on solidarity equally stresses the need for R2P to be interpreted as encompassing a responsibility to protect other populations when disasters strike. b)

Responsibility of the Security Council

The responsibility of the Security Council might further constitute a theoretical basis of a responsibility to protect people from humanitarian catastrophes. In this regard, it is important to distinguish between obligations that are part and parcel of international law (obligations lex lata) and obligations which are desirable, but do not yet constitute existing law (obligations lex ferenda). Therefore, a question arises concerning whether the Security Council in its present state is obliged to react to humanitarian catastrophes linked to climate change. In recent times, the Security Council has had the tendency to not only qualify conflicts between states, but also intrastate conflicts as potential threats to international peace and security,1177 if they entail cross-border implications such as the influx of people in neighbouring countries.1178 1176 Rüdiger Wolfrum, ‘Solidarity amongst States: An Emerging Structural Principle of International Law’ in Pierre-Marie Dupuy, Bardo Fassbender, Malcolm N. Shaw and Karl-Peter Sommermann (ed), Völkerrecht als Wertordnung, Festschrift für Christian Tomuschat (N. P. Engel 2006), 1087. 1177 Compare Andreas S. Kolb, The UN Security Council Members’ Responsibility to Protect (Springer 2018), 11; The Prosecutor v Duško Tadić (n. 769), para. 30; Schabas, Genocide in International Law: The Crime of Crimes (n. 761), 530. 1178 Weiss (n. 305), 52; Kolb (n. 1177), 11.

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As Article 25, as well as Chapter VII of the UN Charter already indicate, the Security Council is relatively free from legal limits.1179 However, as enshrined in Article 24(2) of the UN Charter, the Council cannot do whatever it wants because it is constrained by the ‘purposes and principles’ of the UN Charter.1180 The ‘purposes and principles’ of the UN Charter are those referred to in Articles 1 and 2 of the Charter, and form the basis of international relations. Article 1(3) states that one of the primary purposes of the Charter is ‘[t]o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character […].’ Therefore, one might argue that the occurrence of humanitarian catastrophes linked to climate change, as international problems of a humanitarian character, would require the Security Council to take action. However, this provision cannot be interpreted as imposing a duty on the Security Council to intervene in cases of economic, social, cultural, and humanitarian crises. It is rather intended to establish a general principle of cooperation among UN member states, which is further emphasised by the fact that the UNSC is not mentioned in this provision. Stating that UN member states ‘agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’, Article 25 of the Charter appears to contain another legal constraint on the Security Council in addition to Article 24(2). However, it remains unclear whether this provision refers to Security Council action as such or to efforts of the member states to implement resolutions of the Security Council.1181 Even if it referred to Security Council action, the decision not to intervene in humanitarian crises would not violate a principle of the UN Charter because the Security Council has a margin of appreciation. Nevertheless, the criteria for military intervention established by the ICISS are primarily addressed to the Security Council, aiming at guiding intervention under Chapter VII of the UN Charter.1182

1179 For example, compare the wording of Article 39: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’ Compare also Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (Stevens & Sons 1950), 727; Nico Krisch, ‘Article 41’ in Bruno Simma and others (eds), The Charter of the United Nations: a Commentary (II, 3rd edn. OUP 2012), para. 19. 1180 Terry D Gill, ‘Legal and some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 NYIL 33, 73; Peters, ‘Humanity as the A and Ω of Sovereignty’ (n. 471), 538. Compare also, arguing in favour of limiting the Council’s powers, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Separate Opinion of Judge Gerald Fritzmaurice) (1971), ICJ Rep 208, 280, para. 112. 1181 Compare also Klabbers (n. 518), 198. 1182 Compare also Kolb (n. 1177), 27.

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The Security Council’s powers are further limited by peremptory norms of international law ‘from which no derogation is permitted’ (jus cogens).1183 Examples of jus cogens include the prohibitions of the use of force, genocide, piracy, slavery, torture, and aggression,1184 as well as guaranteeing the right to self-determination.1185 Currently, there does not exist a peremptory norm obliging the Security Council to intervene in humanitarian catastrophes linked to climate change. The Security Council can, within the above-mentioned parameters, essentially do what it wants in taking what measures it deems necessary, as in the aftermath of the 2008 cyclone in Myanmar.1186 Therefore, the Security Council is not obliged to react to humanitarian catastrophes linked to climate change. It could be desirable to establish an obligation on the Security Council to react to these catastrophes. The Security Council is the most powerful body of the UN and its resolutions are binding on all member states, according to Article 25 of the UN Charter. Therefore, the majority of states tend to obey the Council. If the Council would adopt a resolution on a humanitarian crisis aggravated by climate change, its addressees would be obligated to fulfil their obligations under the resolution by assisting the affected state. If the humanitarian disaster reaches a certain threshold, the involvement of the Security Council would certainly be useful and desirable. Given that the Council has a wide range of measures at its disposal, including the making of recommendations and other non-military measures and the use of military means as a last resort, a potential obliga1183 Compare Article 53 of the Vienna Convention on the Law of Treaties (VCLT), Vienna Convention on the Law of Treaties (n. 12). Compare also Gill (n. 1180), 79; Antonios Tzanakopoulos, ‘L’invocation de la Théorie des Contre-Mesures en Tant que Justification de la Désobéissance au Conseil de Sécurité’ (2013) 47 RBDI 78, 88; Alain Pellet and Alina Miron, ‘Sanctions’ (2013) MPEPIL, MPEPIL, accessed 1 December 2019, para. 51. 1184 Compare, inter alia, Draft Articles on the Law of Treaties with Commentaries (1966), Vol. II, Yearbook of the International Law Commission, 247 f.; Stefan Kadelbach, Zwingendes Völkerrecht (Duncker & Humblot 1992), 284, 297, 308; Gill (n. 1180), 79; The Prosecutor v Anto Furundžija (Trial Chamber Judgement) (1998) IT-95–17/1, paras. 155–157; Al-Adsani v The United Kingdom ( Judgement) (2001), 34 EHRR 11, para. 60; ‘Report of the International Law Commission: Fifty-Third Session (23 April –1 June and 2 July –10 August 2001)’, Supplement No. 10 (UN Doc. A/56/10), Commentary to Article 26, para. 5, 208; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) ( Judgement) (2006), ICJ Rep 6, para. 64; Martin Dixon, Textbook on International Law (7th edn, OUP 2013), 80; Klabbers (n. 518), 27. 1185 Kadelbach (n. 1184), 284; ‘Report of the International Law Commission’ (n. 1184), Commentary to Article 26, para. 5, 208. 1186 In the aftermath of Cyclone Nargis in Myanmar, the UK and the US proposed a draft Security Council resolution obliging the government of Myanmar to allow humanitarian organisations unhindered access to the country, amongst other issues. Nine states voted in favour of the resolution, three states (Democratic Republic of the Congo, Indonesia, and Qatar) abstained, and China, Russia, and South Africa voted against the resolution. Compare also Noële Crossley, Evaluating the Responsibility to Protect: Mass atrocity prevention as a consolidating norm in international society (Routledge 2016), 185.

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tion to react to humanitarian catastrophes cannot be equated with a carte blanche for military intervention anywhere and everywhere. It would rather be a powerful political symbol that draws attention to the security dimensions of climate change. Establishing such an obligation would enhance the protection of individuals before, during, and in the aftermath of such events, and raise awareness of the challenges and human implications of global climate change. However, the Security Council is a political body that makes political decisions. The veto powers of its five permanent members give those states control over the Council. Therefore, the permanent members would not accept any obligation to act in a certain way in all situations. It has been argued that the good faith obligation under Article 2(2) of the UN Charter could potentially be interpreted as prohibiting any vote made for reasons others than the realisation of the objectives of the UN Charter and the UN as such.1187 However, as Andreas Kolb noted with reference to Bernd Martenczuk, two main difficulties arise with this subjective approach, the first one being the fact that member states are not under an obligation to state their motives for a particular vote.1188 Furthermore, it is difficult to evaluate whether the reasons stated correspond to the factual reasons of a decision.1189 Nevertheless, as Anne Peters has submitted, the right to veto constitutes a procedural right, emphasising that its exercise in a situation originally covered by the R2P concept could constitute an abuse of right.1190 Recent reactions of the UN Security Council to crises such as in Sudan, Côte d’Ivoire and Libya show that it exercises its primary responsibility for the maintenance of international peace and security by acting in the face of massive intrastate violations of human rights.1191 States further seem to agree on the fact that the Security Council cannot remain inactive if humanitarian catastrophes occur and the host state is unable or unwilling to protect its population.1192 In conclusion, while it would be desirable to create an obligation of the Security Council to consider humanitarian disasters resulting from climate change, its establishment is greatly implausible. However, it can be argued that a corresponding responsibility of the Security Council exists. Members of the UN Security Council further must comply with jus cogens obligations.

1187 Kolb (n. 1177), 152. 1188 Kolb (n. 1177), 152; Bernd Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats: Die Überprüfung nichtmilitärischer Zwangsmaßnahmen durch den Internationalen Gerichtshof (Duncker & Humblot 1996), 80. 1189 Kolb (n. 1177), 152; Martenczuk (n. 1188), 80. 1190 Peters, ‘The Security Council’s Responsibility to Protect’ (n. 504), 27–30. 1191 Kolb (n. 1177), 522. 1192 Kolb (n. 1177), ibid.

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All in all, a responsibility to protect people from humanitarian catastrophes linked to climate change can be based on the responsibility of the Security Council to maintain international peace and security, albeit this responsibility is not comparable to a legal obligation. c)

International human rights law, humanitarian law, and national law

International human rights law, humanitarian law, and national law could further provide a theoretical basis for individual states and the international community to confront humanitarian catastrophes linked to climate change. Because international human rights law has already been discussed separately in chapter B, this section solely summarises the most important aspects of this topic. aa)

Responsibility of affected states

The obligation of states to protect their people under international human rights law implies the primary responsibility to prevent humanitarian catastrophes on their territories, to react to catastrophes that could not have been prevented, and to rebuild in the aftermath. It has also been explained that IHL obliges states to protect their populations.1193 There are also a number of national laws that govern the reaction of states to humanitarian catastrophes.1194 In sum, state parties to the twin covenants, the Rome Statute, and the Geneva Convention undoubtedly have the obligation to offer protection to their populations and to accept offers of external assistance when affected by humanitarian catastrophes linked to climate changeunder international human rights law, humanitarian law, and national law. bb)

Responsibility of the international community

An analysis of a responsibility of the international community should focuse on international human rights law because national laws and IHL cannot establish protection duties of the international community within the territory of other states. As noted above, international human rights law also foresees responsibilities on the part of the international community. The CESCR has indicated that state parties should cooperate

1193 Notably, the Geneva Conventions enshrine protection duties for states. See Geneva Convention relative to the Protection of Civilian Persons in Time of War (4th Geneva Convention)’ (n. 826). 1194 Examples include the 1998 US Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) in the US as well as the 2009 German Act on Federal Civil Protection and Disaster Assistance.

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to provide disaster relief and humanitarian assistance to states in emergency situations, which also encompasses assistance to refugees and internally displaced persons.1195 In this regard, a responsibility of the international community to support states affected by extreme humanitarian catastrophes can be based on international human rights law, although the latter does not stipulate obligations in a strict legal sense. States are rather admonished to cooperate and responsible for providing assistance to people in need. d) Conclusion The analysis has demonstrated that the core foundations of R2P can, to some extent, serve as a legal basis for a responsibility to protect people from humanitarian catastrophes linked to climate change. The responsibility of states to protect their populations from humanitarian catastrophes linked to climate change might be based on the notion of sovereignty-as-responsibility. Irrespective of the causes of human suffering, states are responsible for offering protection to their people. The understanding of sovereignty-as-responsibility further provides a moral basis for a secondary responsibility of the international community to deal with humanitarian catastrophes. In today’s globalised world, one that faces the intertwined challenges of climate change, political instability, food insecurity, conflict, and poverty, the international community as a whole bears the responsibility to cope with humanitarian catastrophes. Though the Security Council bears responsibility for the maintenance of international peace and security, this does not necessitate a legal obligation on the Council to act in a particular way or to authorise intervention on the behalf of states affected by natural disasters resulting from climate change. Although the establishment of certain duties of the Council would be desirable, particularly with regard to the humanitarian crisis in Syria, such a development is greatly implausible. The veto-wielding Security Council members preclude any changes in the current balance of power. The responsibility of the Security Council implies only political and moral responsibilities of its members to behave in a certain way, rather than legal obligations. In this regard, a responsibility to protect people from humanitarian catastrophes linked to climate change exists. Individual states and the international community must undertake a broad range of measures before, during, and in the aftermath of humanitarian catastrophes regarding international human rights law, humanitarian law, and national law. Although the responsibility to protect their populations primarily falls upon individual states, the existence of an international duty to cooperate, derived from international human rights law, is now widely recognised. Therefore, the responsibility to respond to humanitarian 1195 General Comment No. 14: The Right to the Highest Attainable Standard of Health (n. 141), para. 40.

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catastrophes linked to climate change can also be based on human rights law, IHL, and national law.

2.

Mitigation of climate change

The second scenario concerns a general obligation of states to take measures to mitigate climate change. a)

Obligations inherent in the concept of sovereignty

The notion of sovereignty-as-responsibility could encompass a responsibility to mitigate climate change both of individual states and the international community. aa)

Responsibility of individual states

As noted above, states are, by virtue of their sovereignty, responsible for assuring the well-being of their populations. This duty is not limited to care for current generations but encompasses a responsibility towards future generations. If GHG emissions are not immediately reduced, these future generations will likely suffer from consequences such as rising temperatures, extreme weather events of higher frequency and higher intensity, flooding, and coastal erosion. Malnutrition, aggravation of poverty, and economic slowdown are among the potential long-term impacts of these effects. Notably, residents of those states most vulnerable to the impacts of climate change, among them countries in East Africa and some SIDS, will suffer on a massive scale. Current heads of state cannot ignore the severe, far-reaching, and, in most cases, irreversible effects that climate change will have on the planet in the future. Therefore, they must act now to avoid the most devastating consequences, if this possibility still exists. In conclusion, the notion of sovereignty-as-responsibility should be interpreted as encompassing a responsibility of states to mitigate climate change and to promote environmental sustainability. By acting responsibly for the sake of future generations, states can ensure the preservation of their territory. bb)

Responsibility of the international community

The notion of sovereignty-as-responsibility may also be construed as encompassing a responsibility of the international community to mitigate climate change. The last ­decades have been marked by a ‘greening of sovereignty’,1196 characterised by the inclusion of environmental elements into the notion of state sovereignty. Thus, the notion

1196 Karen T Litfin, The Greening of Sovereignty in World Politics (The MIT Press 1998); Eckersley (n. 297), 203.

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of sovereignty has undergone important changes over time.1197 A number of environmental treaties have been adopted and ‘soft law’, commonly referred to as quasi-legal instruments without legally binding force, is also developing.1198 In line with these developments, the principle of solidarity equally plays a crucial role for the international community’s responsibility to counteract climate change. As noted above, UN General Assembly Resolution 43/53 has referred to climate change as ‘a common concern of mankind’,1199 which encourages states to cooperate to solve global problems that need to be addressed through collective action. This understanding shows important similarities with the above-mentioned dimensions of solidarity, especially as far as the horizontal dimension is concerned. If the principle of solidarity aims at reducing existing inequalities between states, it is necessary for states to reduce their GHG emissions. Otherwise, the imminent risk of the impacts of climate change is likely to exacerbate the humanitarian situation in states particularly vulnerable to climate change. Mitigating climate change can equally help states to live up to the vertical dimension of solidarity, given that there are people in one country suffering from the GHG emissions of another. Generally speaking, similar to the first scenario of extreme humanitarian catastrophes, the challenges of international climate protection reflect the need for international law to develop from sovereignty to solidarity without neglecting the utmost importance of sovereignty. In this regard, the greatest merit of the concept of R2P is its attempt to strike a balance between state sovereignty and a responsibility of states to assist people in need. It is also important to note that international environmental law can be helpfully understood as an attempt to balance competing sovereign interests.1200 States’ sovereign right to use their territories is limited to actions that do not cause significant transboundary harm (no harm-rule). The no-harm rule was first mentioned by the Permanent Court of Arbitration in the 1941 Trail Smelter Arbitration, a dispute between Canada and the US concerning a smelter situated in the former country whose emissions affected livestock and farmland in the latter.1201 The arbitral award stated that a state does not possess the right to ‘use or permit the use of its territory in such a manner as to cause injury by

1197 However, these changes are ‘best understood as evolutions rather than as revolutions in sovereignty’. Compare ibid., 228. 1198 Notably, the UNFCCC and its additional Kyoto Protocol as well as the most recent 2015 Paris Agreement oblige states to reduce their GHG emissions. 1199 See p. 64, n. 273. 1200 See Island of Palmas Case (The Netherlands v USA) (n. 473), 839; Bodansky, Brunnée and Rajamani (n. 259), 40. 1201 Trail Smelter Arbitration (United States v Canada) (Arbitral Award) (1938 and 1941), 3 RIAA 1905.

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fumes in or to the territory of another’.1202 The award further affirmed a responsibility on the part of Canada to establish control measures to prevent future harm.1203 According to Principle 21 of the 1972 Stockholm Declaration, the product of the first global environmental conference,1204 states are responsible for ensuring that activities within their territories or their control do not damage the environment of other states, or areas beyond the limits of national jurisdiction.1205 This principle is considered to lie ‘at the core of international environmental law’,1206 and was confirmed as a rule of customary international law by the ICJ in 1996.1207 Consistent with Principle 21, one might argue that a state’s sovereign right to promote industries that emit GHGs is restricted, in the sense that this activity should not harm other states or the global commons.1208 Anthropogenic GHG emissions do not only cause environmental damage, but could also contribute to sea level rise and extreme weather events that pose imminent dangers to human beings.1209 Although it is currently not possible to measure the concrete impacts of a particular facility that emits GHG, emissions undeniably deplete the ozone layer, thereby contributing to anthropogenic climate change. In this regard, a responsibility of states to mitigate climate change can be based on the understanding of sovereignty-as-responsibility in that a responsible state would refrain from allowing activities with these extensive consequences for the environment. b)

Responsibility of the Security Council

A responsibility to mitigate climate change could also be based on the responsibility of the Security Council to maintain international peace and security. As mentioned above, international law imposes few constraints on Security Council action. In the absence of international treaty law, the question that arises is whether a customary norm has crystallised whereby the Council would be obligated to react to 1202 ibid., 1965. 1203 ibid., 1974–1978 and 1980–1981. Compare also Bodansky, Brunnée and Rajamani (n. 259), 40. 1204 Günther Handl, ‘Declaration of the United Nations Conference on the Human Environment and Rio Declaration on Environment and Development, Introduction’ (2012) accessed 1 December 2019. 1205 Declaration of the United Nations Conference on the Human Environment (16 June 1972), UN Doc. A/CONF.48/14/Rev 1, 11 ILM 1416. 1206 Yamin and Depledge (n. 38), 68. 1207 Legality of the Threat or Use of Nuclear Weapons (n. 272), 241–242, para. 29. 1208 Compare also Bodansky, Brunnée and Rajamani (n. 259), 40. 1209 Compare Crowley (n. 24), 276; Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 42.

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climate change-related problems. The first section of this chapter clearly deduced that, under current international law, the Security Council is not legally bound to respond in any way to humanitarian catastrophes linked to climate change. Therefore, a fortiori, the Security Council does not possess an obligation to contend with CCM. However, it is an open question whether the Security Council ought to be obligated to adopt resolutions on CCM. The Council has already held four formal debates on the relationship between climate change and human security, and has maintained that it recognises the dangers posed by climate change. However, it remains doubtful that the Security Council represents the most effective international forum to deal with CCM. Although some effects of climate change are already visible in some regions of the world, its worst impacts are yet to come, in that climate change is a future threat to international peace and security rather than a current danger. Therefore, it should be determined whether the Security Council might authorise preventative measures. As written in Article 1(1) of the UN Charter, one of the purposes of the UN is [t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and to bring about by peaceful means […] adjustment or settlement of international disputes situations which might lead to a breach of the peace. Given that the Security Council holds the primary responsibility for the maintenance of international peace and security, this provision indicates its prevention and mitigation responsibilities.1210 In the past, the Security Council has embarked on several preventive activities.1211 The 2000 thematic resolution on HIV/AIDS and international peace-keeping operations formally declared HIV/AIDS as a security issue, stressed the important role of the General Assembly and the Economic and Social Council in addressing HIV/AIDS, and encouraged member states to develop effective long-term strategies for HIV/AIDS

1210 Compare also Security Council Report, ‘Can the Security Council Prevent Conflict?’ (9 February 2017) accessed 1 December 2019, 2 f. 1211 The Security Council has different meeting formats available that are relevant for preventive action, including open debates, informal dialogues, Council country visits, and Arria-formula meetings, amongst others. See Formats of Meetings Related to the Security Council’ accessed 1 December 2019. The Council has also adopted resolutions relating to the conflict prevention sphere. See, inter alia, SC Res. 1625 (14 September 2005), UN Doc. S/RES/1625: ‘The Security Council, [d]ecides to adopt the attached declaration on strengthening the effectiveness of the Security Council’s role in conflict prevention, particularly in Africa.’

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education and prevention.1212 A similar resolution related to climate change would raise awareness of its impending dangers and remind states of their responsibilities towards both their own populations and the international community as a whole. Although the Security Council cannot, in the absence of a current threat to international peace and security, force individual states to reduce their GHG emissions, it could adopt a thematic resolution on climate change which adresses its security dimensions and calls upon member states to develop long-term mitigation strategies. To conclude, the Security Council is not yet obligated to adopt CCM. Therefore, a responsibility to mitigate climate change cannot be based on the responsibility of the Security Council for the maintenance of international peace and security. c)

International human rights law, humanitarian law, and national law

Another theoretical basis for a potential responsibility of states to protect people from climate change could be included under states’ obligations under international human rights law, IHL, and national law. aa)

Responsibility of individual states

Firstly, a potential responsibility of individual states must be assessed, because certain obligations of states in terms of CCM already exist. On the national level, the majority of states have adopted laws and policies on CCA and CCM that require them to adopt suitable measures.1213 In the absence of an armed conflict, IHL is not relevant in this regard. As noted above, international human rights law does not require states to mitigate climate change. However, a customary obligation to mitigate climate change could exist. For a rule of customary international law to emerge, two components are necessary, namely the existence of state practice and a corresponding opinio juris.1214 With regard to state practice in mitigating climate change, the majority of states have recognised the impending dangers of climate change and have initiated mitigation measures. The adoption of the Paris Agreement in 2015 redoubled international commitment to mitigation 1212 SC Res. 1308 (2000) on the Responsibility of the Security Council in the Maintenance of International Peace and Security: HIV/AIDS and International Peace-keeping Operations (17 July 2000), UN Doc. S/RES/1308, preamble, para. 2. 1213 Grantham Research Institute on Climate Change and the Environment and Sabin Center for Climate Change Law, ‘Climate Change Laws of the World Database’ accessed 1 December 2019. 1214 Compare chapter C. III. 1. a), p. 102.

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action on climate change, demonstrating that mitigation is a current key priority for states.1215 However, states are not inclined to be legally obligated to act. The Paris Agreement, similar to the Kyoto Protocol, is based on NDCs, and states that individual states may define their own emission reduction targets. Ratification of the agreement is similarly voluntary for states. Therefore, a customary obligation of states to mitigate climate change does not yet exist. However, gradual environmental degradation, coupled with the humanitarian consequences of climate change, might necessitate a different assessment in the future. A customary rule of international law to confront climate change might therefore emerge. To conclude, a responsibility to mitigate climate change can, to some extent, be based on national laws and international human rights law. However, in the absence of a human right to a healthy environment and a customary obligation to counteract climate change, human rights-based action on climate change requires a violation of human rights. bb)

Responsibility of the international community

The investigation of a potential responsibility of the international community to mitigate climate change depends on international human rights law, the reason being that national law and IHL are not applicable in this scenario. As previously discussed, the international community does not yet have an obligation to mitigate climate change, or an obligation to support CCM in developing countries. However, such responsibilities could emerge in the future. Therefore, the responsibility to mitigate climate change cannot be based on international human rights law, humanitarian law, and national laws. d) Conclusion This analysis has demonstrated that the core foundations of R2P only partially establish a responsibility to mitigate climate change. States bear a political and moral responsibility to reduce their GHG emissions based on the notion of sovereignty-as-responsibility. The concept of state sovereignty implies responsibilities, and these responsibilities are not solely owed to the populations of states, but also to the international community and to humankind as a whole. This does not only emanate from the understanding of sovereignty-as-responsibility, but also from the linked principle of solidarity that characterises international relations in 1215 As of 1 December 2019, 187 states have ratified the agreement. See UNFCCC, ‘Paris Agreement – Status of Ratification’ accessed 1 December 2019.

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recent times. Therefore, individual states and the international community are morally obligated to mitigate the drivers of climate change. A responsibility to mitigate climate change cannot be based on the duty of the Security Council to maintain international peace and security. The adoption of a thematic resolution on climate change by the UNSC is a worthwhile aim. However, there are several obstacles in the way of generating the political will to cement climate change as an issue of international security, particularly in the era of US President Donald Trump who, even before reaching the six-month mark of his presidency, announced the withdrawal of the US from the Paris Agreement. In terms of the efficacy of international human rights law, humanitarian law, and national laws, only national laws obligate states to mitigate climate change. Unless the impacts of climate change directly affect the realisation of human rights, states are, under international human rights law, not yet required to undertake mitigation measures. However, bearing in mind the devastating impacts that climate change will have in the long term, new obligations on states should be established. A customary obligation to mitigate climate change might emerge, and a human right to a healthy environment should be recognised. CCM should equally be treated as an erga omnes obligation due to the fact that climate change does not merely concern the most vulnerable countries, but rather affects every state in the world.

3. Remarks In conclusion, only the first of the two scenarios, featuring a responsibility to protect people from humanitarian catastrophes linked to climate change, could be based on the core foundations of R2P. Several obligations of states already exist toward their own populations and the international community deriving from conceptualisations of state sovereignty and being enshrined in international human rights law. A potential responsibility of the Security Council to intervene in cases of humanitarian catastrophes is not yet anchored in international law. Nevertheless, UN member states possess a political and moral responsibility, acting as an incentive to assist states in need. This thesis posits that R2P itself does not entail legal consequences, and this moral responsibility suffices to justify the application of R2P in this scenario. In terms of the second scenario concerning the mitigation of climate change, existing international law is less developed, with only those duties arising from state sovereignty and the principle of sovereignty obliging states to mitigate climate change. As noted above, the Security Council is not obligated to react in specific situations. Lastly, in the absence of a right to a healthy environment and a customary obligation to mitigate climate change, a human rights-based approach would require the violation of a human

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right, such as the right to health under Article 12 of the ICESCR, to force states to act. The future developments of climate change will reveal whether a different assessment is required.

III.

Guidelines for the application of an extended R2P

This section proposes guidelines for how R2P could be applied to humanitarian catastrophes linked to climate change. These guidelines aim to clarify the scope of the concept, its components, its addressees, and its application in practice, thereby preventing misuse.

1. Scope The scope of the R2P concept should be applicable to genocide, war crimes, ethnic cleansing, crimes against humanity, and humanitarian catastrophes linked to climate change that feature a massive scale of human suffering. How is such a catastrophe defined? A catastrophe is commonly referred to as ‘[a]n event causing great and usually sudden damage or suffering; a disaster’.1216 ‘Humanitarian’ derives from ‘human’, and can therefore be equated with ‘concerning humans’. The catastrophe must be in a certain way linked to climate change. Because a number of factors are contributing to natural phenomena, climate change cannot be the only cause for a particular event in the sense of a ‘conditio sine qua non’. However, several studies have proven that climate change influences the frequency and intensity of extreme weather events, particularly heat waves and droughts. Researchers of the Energy and Climate Intelligence Unit have analysed 59 studies on climate change and extreme weather, all of which having been published between the Paris summit in December 2015 and December 2017. Their report concludes that of the 59 papers that have been subject to their analysis, 41 determined a positive link between climate change and extreme weather events.1217 A ‘positive link’ in this sense is understood as impacting the frequency, duration, or intensity of a specific event, or contributing to a particular type of impact.1218 According to their findings, the effects of climate change are most obvious for heat waves (stated by 15 reports), droughts, and rainfall/flooding (each stated by nine reports).1219 Although the scientific findings are somewhat inconclusive, it is possible to establish a link between climate change and a particular natural event. Therefore, 1216 Oxford Dictionary (n. 175). 1217 Energy & Climate Intelligence Unit, ‘Heavy Weather: Tracking the fingerprints of climate change, two years after the Paris summit’ (December 2017) accessed 1 December 2019, 6. 1218 ibid. 1219 ibid.

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a ‘catastrophe linked to climate change’ solely requires that climate change has contributed to its appearance, duration, or intensity. The last condition that the author argues is required for the application of R2P is a massive scale of human suffering. When determining what is understood by this term, it is necessary to examine the other crimes under R2P. The committing of war crimes, genocide, crimes against humanity, and war crimes requires the wilful killing of one or more persons, while ethnic cleansing necessitates a particular group to be eliminated. Therefore, the application of R2P requires one or more persons being killed, displaced, or otherwise severely affected. People must further be exposed to harsh conditions of life in the aftermath of a natural disaster, in the sense that they suffer from malnutrition, water scarcity, homelessness, or other serious impacts. Although a natural disaster linked to climate change has not been wilfully ‘caused’ by a perpetrator as in the case of the other crimes of R2P, the application of R2P is nonetheless justified. These crimes and events are of a similar gravity, and, for the protected populations, it makes no difference whether the source of their suffering is classified as one of the ‘original’ crimes associated with R2P or is caused by the impacts of climate change. Furthermore, unlike in the original crimes, the affected state is not necessarily involved in humanitarian catastrophes linked to climate change. Therefore, a lower threshold for applying R2P to the consequences of these natural phenomena is also justified, given that the affected state is not guilty of any crime in most cases, but rather requires assistance of the international community. Therefore, a lower threshold should be used to determine the applicability of R2P to natural catastrophes linked to climate change, which equally requires human suffering in the aftermath of a climate changerelated natural disaster, but on a lower scale. As this section has demonstrated, such an application is warranted.

2. Addressees The extended R2P primarily addresses individual states affected by or at risk of such catastrophes. If states are unwilling or unable to protect their populations, the sec­ondary responsibility of the international community, through the UN, is activated. The R2P framework developed in this dissertation understands the notion of ‘international community’ as solely encompassing states because responsibilities of NGOs and other subjects are are separate affairs. Although every state belongs to the international community as a whole, this thesis posits that states in close proximity to the disaster must be the first to act, according to their capacities. If these states do not possess the necessary means to offer relief, other states must step in to help. In this regard, reacting to natural disasters would be simplified if states would create an agreement that determines responsibilities of states in

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situations of disasters. Although such an enumeration would not entail any legal obligations, it would establish a responsibility of states to contribute to specific relief efforts. This agreement could also determine a responsibility of particular states for disasters in particular states based on factors such a geographical proximity and economic capacity. Although states have already agreed to mutual support in supranational organisations such as the EU, such an enumeration would provide further clarity and simplify disaster relief.

3. Components The people-centred approach of R2P developed in this dissertation encompasses the responsibilities of states to prevent, react, and rebuild in cases of humanitarian catastrophes. This thesis has argued that a number of responsibilities of states already exist under IDRL and international human rights law, most importantly in the preventive and reactive spheres. These legal frameworks should be incorporated into the general framework of R2P to guarantee effective protection of people from such catastrophes. In terms of the responsibility to prevent, an important responsibility of states owed towards their own populations is the mitigation of climate change. In this regard, states’ NDCs as determined under the 2015 Paris Agreement can be classified as part of their R2P. Other responsibilities of states and the international community have already been incorporated into IDL. With regard to the responsibility to react, IDRL also provides important guidelines for the immediate reaction to natural disasters, including assistance for relief and recovery. This thesis has further advocated for a responsibility for states to offer asylum to those people fleeing their homes that may be engulfed by the sea. This responsibility is necessary given that these people are not protected under the 1951 Refugee Convention. In this regard, bilateral and multilateral treaties between states are required because one single state alone cannot cope with a large influx of ‘climate refugees’. Therefore, global and regional agreements between EU, AU, OAS members and member states of other regional organisations on a shared responsibility for people fleeing the impacts of climate change would be beneficial. Potential (financial) sanctions for states that fail to live up to their responsibilities should also be established. Such agreements are far from being uncontested and are faced with a number of challenges, as the EU-Turkey refugee deal has demonstrated. However, states are required to work together to guarantee the most effective protection to people based on the principles of solidarity and cooperation. This responsibility towards people displaced by climate change continues in the rebuilding phase through offering long-term protection to people. These people are then in need of support so that they can begin new lives in other countries. A potential ave-

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nue to provide this support could be a ‘Special Responsibility to Protect Fund’, included in or similar to the Special Climate Change Fund that was founded at the 2001 UN Climate Change Conference in Marrakesh. The latter serves to support developing countries in their adaptation and mitigation measures with the goal of building resilience against climate change. The so-called R2P Fund could be used to support disaster relief actions in affected states, and equally as an incentive for states to take in refugees. States would be required to make a pledge to the fund in accordance with their capacities and their level of liability for climate change. These donations could then be used to support governments that accept refugees and climate migrants that have fled to other countries.

4.

Application in practice

It is important to note that any action should be strictly limited to the overall aim of protecting civilians with regard to the implementation of measures under R2P. Measures that seem to be in pursuit of other goals, such as regime change, or purely economic motivations, are therefore prohibited. Thus, the mandate of the UNSC could help clarify the mission of states. However, formulations in resolutions of the Council are often vague, making them particularly vulnerable to misunderstandings and misinterpretations, as in the case of Resolution 1973 on Libya. The establishment of an independent body to monitor the implementation of R2P would be an important step towards preventing misuse of the concept. Such a body could be composed of former statesmen, judges, and international law scholars from every continent in a similar fashion to the ICISS. The General Assembly could adopt a resolution establishing this monitoring body. Such a body should not necessarily have the power to make binding decisions on states, which emphasises that it will not be at risk of undermining the authority of the Security Council. The tasks of such an organ could rather include the prescription of standards for the implementation of R2P, such as those proposed in this section, as well as the codification of violations of these standards and their consequent sanctioning. If the monitoring body detects a violation of the prescribed R2P standards, it may refer the situation to the proper body, which would be either the Security Council or the ICC. Accordingly, appropriate means in this context could be the imposition of financial sanctions, or, as a last resort, the referral of a situation to the ICC. If states knew what the consequences of their actions might be, the advent of another Libya, and any situation in which states go beyond their initial mandate, could be prevented. This section was intended to develop standards for the application of R2P to humanitarian catastrophes linked to climate change to clarify the scope and content of the concept. Nevertheless, several challenges arise from the establishment of an extended R2P framework. This is further explored in the following section.

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IV.

Challenges and opportunities

This section discusses the challenges and opportunities that arise from the enlargement of the framework of R2P. Because the previous chapters have proposed applying R2P only to humanitarian catastrophes linked to climate change, this analysis focuses on the challenges of such an approach. Most of the presented concerns have been in relation to R2P’s application to natural disasters in the context of cyclone Nargis in Myanmar.1220 However, due to the similarity of impacts, these concerns are equally relevant in the case of climate change. The ensuing analysis centres on potential harms to the R2P doctrine, a potential risk of abuse, the infeasibility of R2P for disaster relief, and the absence of political support for accepting a climate change-related R2P. Each challenge is examined separately, and arguments to overcome these challenges are then presented afterwards.

1.

First challenge: harm to doctrine

Opponents of extending R2P beyond the agreed scope fear that any extension of R2P’s ambit would damage the concept itself.1221 As Ramesh Thakur indicated in terms of cyclone Nargis, [t]here would be no better way to damage R2P beyond repair in Asia and the developing world than to have humanitarian assistance delivered into Myanmar backed by Western soldiers fighting in the jungles of Southeast Asia again.1222 Others are worried that applying R2P to natural disasters would undercut political support for confronting future atrocity crimes.1223 Furthermore, extending R2P could lead to states of the Global South returning to their initial arguments regarding the primacy of sovereignty that led to the international community’s failure to act in Rwanda and Srebenica in the 1990 s.1224 Dangers inherent in extending R2P to humanitarian catastrophes linked to climate change cannot be summarily dismissed. However, it is important to recognise that this approach also offers R2P the chance to become one of the milestones in successfully 1220 See chapter C. III. 1. a) cc) (1) (b), p. 111 f. 1221 Thakur, ‘Should the UN Invoke the ‘Responsibility to Protect’?’ (n. 109); Evans, ‘Facing up to our Responsibilities’ (n. 928); Bellamy, ‘Realizing the Responsibility to Protect’ (n. 364), 120. 1222 Thakur, ‘Should the UN Invoke the ‘Responsibility to Protect’?’ (n. 109). 1223 Evans, ‘Facing up to our Responsibilities’ (n. 928). Compare also Benton Heath (n. 192), 432, stating that states will not accept ‘any treaty or customary rule that explicitly applies the Responsibility to Protect to natural disasters.’ 1224 Evans, ‘Facing up to our Responsibilities’ (n. 928). Compare also Ramesh Thakur, ‘To Invoke or Not to Invoke R2P in Burma’ (20 May 2008) accessed 1 December 2019.

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abating the plight of millions of people adversely affected by climate change. It would signal a return to the initial conception of the ICISS that envisaged its applicability in cases of ‘overwhelming natural or environmental catastrophes’ with significant loss of life.1225 The ICISS had argued in favour of a broad perception of human security that not only focuses on territorial security, but rather encompasses security through human development and environmental security.1226 This approach corresponds to the changing nature of conflicts that are more often related to the environment and natural resources.1227 Although the World Summit Outcome document did not take up this broad scope of R2P, the current circumstances may justify reconsidering this initial conception. Furthermore, it is not obvious that extending R2P to climate change would weaken support for the doctrine as such. It does not seem that the proposal to invoke R2P after Nargis has created further distance between the sovereignty-conscious states of the Global South and their acceptance of the concept. Notably, Bolivia and Rwanda supported the concept at the 2009 General Assembly Debate on R2P.1228 R2P is not intended to undermine state sovereignty, but is rather referred to as ‘an ally of sovereignty, not an adversary’.1229 Sovereignty refers to ‘the right to exercise therein [in the territory of a state], to the exclusion of any other state, the functions of a state’.1230 However, one of the functions of a state is to provide for the security and well-being of its citizens.1231 If a state is unwilling or unable to care for its population, the international community may have the responsibility to hold states accountable and may even be called upon to provide the needed assistance and protection to the internally displaced and perhaps other segments of the population.1232 R2P thus reinforces the sovereignty of individual states by emphasising their primary responsibility for the well-being of their citizens. Furthermore, as discussed in the previous section, unlike in cases of the original crimes under R2P, affected states are not necessarily involved in humanitarian catastrophes linked to climate change. This not only has 1225 International Commission on Intervention and State Sovereignty (n. 13), para. 4.20. 1226 ibid., para. 2.22 – 2.23. Compare also Asunción L St. Clair, ‘Global Poverty and Climate Change: towards the Responsibility to Protect’ in Karen O’Brien, Asunción L St. Clair and Berit Kristoffersen (eds), Climate Change, Ethics & Human Security (CUP 2010), 180–181. 1227 Compare also Thomas Homer-Dixon, ‘On the Threshold: Environmental Changes as Causes of Acute Conflict’ (1991) 16(2) International Security 76; Norman Myers, Ultimate Security: The Environmental Basis of Politics Stability (Norton 1993). 1228 ‘Prevention of Armed Conflict’ (14 September 2009), UN Doc. A/63/PV.105. 1229 ‘Report of the Secretary-General. Implementing the Responsibility to Protect’ (n. 379), para. 10(a). Compare also Saechao (n. 945), 673. 1230 Island of Palmas Case (The Netherlands v USA) (n. 473), 838. 1231 Deng, ‘Internally Displaced Persons’ (n. 493), para. 34; Arbour (n. 496), 448; Dederer (n. 105), 171. 1232 Deng, ‘Internally Displaced Persons’ (n. 493), para. 34.

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implications for the scope of an extended R2P, but also for its effects on state sovereign­ ty. Only a state that demonstrates responsibility towards its own citizens may plead its sovereignty.1233 The ‘original’ crimes that activate R2P are far more able to challenge the sovereignty of states, as the respective state itself is the perpetrator. In cases of climate change-related natural disasters, the residual responsibility of the international community is caused if affected states are unable to offer adequate protection to their populations. Therefore, because sovereign states are able to exercise the functions of a state, R2P does not contradict state sovereignty, but rather supports states that are not able to act as responsible and sovereign states in fulfilling their obligations towards their populations. A narrow interpretation would blur the lines between R2P and humanitarian intervention, while too broad an interpretation would deprive the concept of any theoretical and practical meaning beyond humanitarian assistance.1234 Therefore, the application of R2P must be limited to issues equivalent to the atrocity crimes for which its application is already accepted.1235 A lower threshold for applying R2P is therefore justified, and humanitarian catastophes linked to climate change can be determined to be of a similar gravity. Additionally, in these climate change-related situations, a great number of people will be affected. Furthermore, people are already beginning to flee from the devastating impacts of climate change.1236 An estimated 68.5 million people were forced to leave their homes due to conflict or persecution in 2017 alone.1237 Among them, about 18.8 million people were displaced due to natural disasters.1238 Although it cannot be concluded that every natural disaster is related to climate change, global warming is unquestioning changing weather patterns.1239 As noted above, there are a number of humanitarian catastrophes that can be directly or indirectly linked to climate change. Therefore, states should prepare for the influx of large numbers of ‘climate refugees’.1240 In sum, humanitarian ca1233 Gilbert (n. 490). 1234 Barbour and Gorlick (n. 1046), 554. 1235 Dederer (n. 105), 179. 1236 However, one cannot estimate the concrete number of people that will flee or be displaced from the adverse impacts of climate change. Compare Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 16; UN High Commissioner for Refugees, ‘UNHCR, the Environment and Climate Change’ (October 2015) accessed 1 December 2019, 5. 1237 UN High Commissioner for Refugees, ‘Global Trends: Forced Displacement in 2017’ (n. 798), 2. 1238 Statista (n. 799). 1239 Intergovernmental Panel on Climate Change (ed), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (n. 3), 19. 1240 Compare Biermann and Boas (n. 239), 67. However, this notion has no legal implications, given that the 1951 Refugee Convention only applies to persons fleeing persecution or violence committed by

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tastrophes linked to climate change are equivalent to the other crimes under R2P. The application of R2P to these issues would therefore not harm the doctrine as such. By establishing clear standards of what constitutes a crime under R2P, the doctrine would still be focused and its application would thus be limited to the most horrendous crimes. In doing so, it could be guaranteed that R2P is not overextended.

2.

Second challenge: risk of abuse

Another challenge concerns the risk of abusing the concept of R2P, which could also pose problems for protected populations. As argued by some states in the case of ­Libya, R2P could be used as a tool to legitimise actions other than the protection of civilians.1241 Critics fear that R2P could accordingly serve as an excuse for states to intervene in countries affected by climate change. A broader scope of R2P increases the risk of abuse because a number of circumstances justify the application of R2P. Therefore, if states pursue specific goals in particular countries, they could potentially intervene in a country by choosing to identify and act on a legal justification based on one of the crimes under R2P. Furthermore, a number of authors fear that ‘if R2P is to be about protecting everybody from everything, it will end up protecting nobody from anything’.1242 Thus, the critics both criticise a broad scope of R2P and argue in favour of limiting the concept’s scope to the four core crimes to guarantee adequate protection to vulnerable populations. In terms of the risk of abuse, it is important to mention that the R2P framework developed in this dissertation does not allow unilateral intervention by states without human actors: ‘Persecution is normally related to action by the authorities of a country.’ See International Convention Relating to the Status of Refugees (n. 5), Article 1a(2); ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (n. 241), para. 65; Edwards (n. 241), 64; Kälin and Entwisle Chapuisat (n. 241), 364. 1241 In the case of Libya, it had been argued that Western states had expanded the action authorised by the Security Council, going beyond the protection of civilians to advancing regime change. Compare, inter alia, Ian Black, ‘Libya Regime Change is West’s Goal, but Doubts Remain over How to Achieve it’ The Guardian (15 April 2011) accessed 1 December 2019; Micah Zenko, ‘The Big Lie about the Libyan War’ Foreign Policy (22 March 2016) accessed 1 December 2019. Compare also, confirming this assumption, Nicolas Sarkozy, Barack Obama and David Cameroon, ‘Sarkozy, Obama, Cameron: “Kadhafi doit partir”’ Le Figaro (14 April 2011) accessed 1 December 2019. 1242 Gareth Evans, ‘The Responsibility To Protect: Ending Mass Atrocity Crimes Once and for All’ (London, 15 December 2008) accessed 1 December 2019; Benton Heath (n. 192), 433.

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being backed by the UNSC. Therefore, members of the Security Council can control any action under the R2P umbrella and veto any proposals they do not consider to be justified. Furthermore, as mentioned in the previous section III on guidelines for R2P’s application, measures taken by states are strictly limited in this sense that they should only be intended to protect civilians. The proposed establishment of a monitoring body would ensure compliance of states with this objective. Potential actions to be taken by states are enshrined in IDRL, which provides important guidelines for these situations. Unilateral action by states with goals that differ from the protection of civilians is therefore prohibited and highly unlikely. Furthermore, applying R2P to humanitarian catastrophes linked to climate change would not create disadvantages for protected populations. Consistent with its original conception, an expanded R2P would place the protected populations at the centre, advancing the ‘responsibility to protect’ rather than the ‘right to intervene’.1243 R2P would serve as an important political tool to force stakeholders to not stand idly by while millions of people suffer from the effects of natural disasters, but to assist them in the prevention of, reaction to, and rebuilding after humanitarian catastrophes connected to climate change. Therefore, R2P would help ‘drawing a much larger circle of involvement and interest to the prevailing storm that is upon us[.]’1244 In fact, large-scale disasters can be as devastating and cause as many deaths as the situations currently subsumed under the R2P regime.1245 From the victims’ perspective, there is no important difference between the death of a person by a gun or in a climateinduced disaster that could have been prevented by a proper international response to climate change.1246 Nevertheless, the situations are essentially different when considering human influence in both cases. Although climate change is equally man-made, the emitters of GHGs do not aim to harm people, as noted in the previous chapter D. A head of state who orders or tolerates one of the ‘original’ R2P crimes being committed against his population is certainly not willing to accept any external assistance, and other states are accordingly equally reluctant to intervene. However, if states are affected by climate change-related natural disasters, these states do not commit crimes against 1243 International Commission on Intervention and State Sovereignty (n. 13), para. 2.29; Evans and Sahnoun (n. 300), 101; Thakur, ‘Outlook: Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’ (n. 307), 328. 1244 Axworthy and Rock (n. 868), 68. 1245 Ana Polak Petrič, ‘Application of “Responsibility to Protect” in the Event of Natural Disasters, with a Special Focus on the Work of the International Law Commission’ in Vasilka Sancin and Maša Kovič Dine (eds), Responsibility to Protect in Theory and Practice (Conference Papers) (GV Založba 2013), 856. 1246 Lloyd Axworthy, ‘International Community has a Responsibility to Protect Myanmar’ (13 May 2008) accessed 1 December 2019.

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their populations, but are rather dependent upon external aid. In these situations, the international community is also more eager to offer humanitarian assistance, and there are therefore reasonable grounds to apply R2P in this scenario. Furthermore, as Dr. Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect, argues, climate change acts as a ‘threat multiplier’ by aggravating the existing threats of instability, hunger, poverty, and conflict, and could increase the risk of atrocities under R2P being committed.1247 The impacts of climate change may also accelerate the risk of state failure which could then lead to serious harm to a population.1248 Therefore, there is a strong correlation between the consequences of climate change and the commission of crimes, which could, in extreme cases, amount to some of the atrocities under R2P. The proposed application of R2P to humanitarian catastrophes adopts this connection and directly equates the ‘original’ R2P crimes with grave natural disasters. The last decades have been marked by the international community’s failure to effectively respond to the threats posed by climate change and to formulate strong climate commitments. It has equally become apparent that simply preserving the status quo in climate change governance is insufficient. In this regard, R2P would constitute an important political tool for states to respond to climate change. R2P reminds the international community of its responsibilities towards people with its focus on protected populations. In this regard, it is particularly the prevention of humanitarian catastrophes under R2P that should be strengthened, given that the concept is often applied far too late in the reaction phase.

3.

Third challenge: infeasibility for disaster relief

Another challenge concerns the potential infeasibility of R2P for disaster relief action. It has been argued that R2P is strongly oriented towards military intervention, which makes the concept inappropriate for peacetime disaster relief.1249 Therefore, it has been stated that other rules of international law, such as IDRL, as well as human rights law, are more suitable to guarantee people’s protection. Focusing solely on the reaction component of R2P undermines the concept’s potential as an innovative and holistic model for the protection of people. Some of the major criticisms of the R2P concept are based upon misinterpretation and misunderstanding. Although R2P does permit military intervention as a last resort, the analysis has determined that it could entail a far broader range of measures falling short of the use of force. 1247 Adams (n. 7). 1248 McAdam and Saul, ‘An insecure climate for human security? Climate-induced displacement and international law’ (n. 243), 401. 1249 Benton Heath (n. 192), 432.

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In fact, military intervention to provide relief to people does not seem to be feasible. However, the holistic concept of R2P, encompassing the responsibilities to prevent, react, and rebuild, offers far more than a ‘carte blanche’ for coercive military intervention. In terms of humanitarian assistance to victims of natural disasters, R2P could, together with IDRL and international human rights law, establish a general framework ranging from the prevention of humanitarian catastrophes to recovery efforts. In this regard, the branches of IDRL and human rights law should not be treated separately from R2P. This thesis rather posits that IDRL and human rights law are incorporated within the R2P concept, in the sense that they are mutually reinforcing. R2P is viewed as the broad framework that frames action in cases of climate change-related humanitarian catastrophes, while international human rights law provides a legal underpinning, and IDRL concretises responsibilities under R2P. The holistic concept of R2P foresees preventive, reactive, and rebuilding responsibilities, while IDRL focuses on the first components, limiting rebuilding measures to the immediate aftermath of humanitarian catastrophes, which is here classified as pertaining to the reaction phase. In terms of a responsibility to prevent of the international community, R2P complements IDRL, which could help to further develop laws governing international responses to disasters, and to establish a general framework for the prevention of, reaction to, and recovery in the aftermath of humanitarian catastrophes linked to climate change. Furthermore, the application of R2P is not limited to situations of armed conflict. Geno­cide, ethnic cleansing, and crimes against humanity do not require the existence of an armed conflict, which deflates the argument that R2P is inappropriate for peacetime disaster relief. Reducing R2P to being solely concerned with coercive military intervention also conflates R2P with humanitarian intervention, an association that the ICISS obviously wanted to avoid. To counter this misinterpretation, the components of prevent, react, and rebuild were included to clearly distinguish R2P from humanitarian interventions that only resemble the reaction component. Therefore, based on the interpretation used in this thesis, R2P is not infeasible for disaster relief action.

4.

Fourth challenge: absence of political support

Another challenge is created by the potential absence of political support for a climate change-related R2P. A number of states have declared their opposition to extending R2P to natural disasters.1250 In this regard, the primary problem is that states have also 1250 Compare, inter alia, 63rd Session, 23rd Meeting (21 November 2008), UN Doc. A/C.6/63/SR.23, para. 31 (China); 63rd Session, 24th Meeting (21 November 2008), UN Doc. A/C.6/63/SR.24, para. 42 (Islamic Republic of Iran); 64th Session, 22nd Meeting (8 February 2010), UN Doc. A/C.6/64/SR.22, para. 12 (Ghana). See also, arguing in favour of considering R2P in IDL, 63rd Ses-

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been reluctant to accept the initial R2P concept foreseen by the ICISS that also encompassed natural catastrophes, which is emphasised by the fact that this version had been limited to the four core crimes at the 2005 World Summit. A recognition of a significantly broader responsibility to protect people from humanitarian catastrophes linked to climate change therefore appears at first sight unlikely. However, this lack of political support predominantly pertains to prevailing ambiguities on the application and the implementation of R2P. If clear standards were to be established, states would be more likely to accept a climate change-related R2P. This dissertation developed a general framework for the application of R2P to humanitarian catastrophes linked to climate change, laying out hierarchical structures and clear responsibilities of states. By using this framework, it can be ensured that the sovereignty of states is respected. Furthermore, the impacts of climate change will become more severe in the future, and more people in a wider variety of countries will suffer on a massive scale. States must act immediately and cooperatively to maintain the negative consequences of climate change to a minimum. If states begin to recognise the impending dangers of climate change, they will overcome their initial doubts regarding an extension of R2P. Those states that are currently reluctant to cooperate to protect people from the impacts of climate change, such as the US, will also suffer from its consequences in the future, making it dependent on foreign aid. Therefore, it is to be expected that a climate change-related R2P will gain more support in the future, especially with new governments with different attitudes towards climate change.

5. Remarks This analysis has demonstrated that the UN, state representatives, and academics have rejected R2P’s applicability to natural disasters and climate change too hastily.1251 Although the application of R2P poses significant challenges, it is the most promising existing approach to guarantee adequate protection to populations affected by humanitarian catastrophes linked to climate change. Based on the understanding of sovereignty-as-responsibility, R2P does not undermine, but rather reinforces the sovereignty of individual states because the residual responsion, 25th Meeting (19 November 2008), UN Doc. A/C.6/63/SR.25, para. 6 (Portugal); 63rd Session, 22nd Meeting (20 November 2008), UN Doc. A/C.6/63/SR.22, para. 55 (Nordic Countries); 63rd Session, 24th Meeting (n. 1250), para. 51 (Poland). 1251 Compare also Erin D Mooney, ‘Something Old, Something New, Something Borrowed … Something Blue? The Protection Potential of a Marriage of Concepts between R2P and IDP Protection’ in Sara E Davies and Luke Glanville (eds), Protecting the Displaced: Deepening the Responsibility to Protect (Martinus Nijhoff Publishers 2010), 83.

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sibility of the international community does not apply until a state is unable to offer protection to its population. The application of R2P to climate change would therefore not replace but rather complement the functions of a state. A broad understanding of human security that encompasses environmental security corresponds to the changing nature of conflicts that are more often connected to the environment and natural resources.1252 However, the scope of R2P must remain rooted in sound principles to ensure the adequate protection of people. Therefore, the application of R2P must be limited to atrocities that are (quasi) equivalent to the crimes already associated with R2P, as a lower threshold is justified. Humanitarian catastrophes linked to climate change are of equal gravity and will become more severe in the future. A broad scope of R2P also coincides with the risk of abuse, which could be to the detriment of protected populations. However, if action undertaken in the name of R2P is strictly limited to protective measures for civilians, misuse of the concept is highly unlikely. To prevent this, any action in the name of R2P must be authorised by the UNSC and be strictly limited to the given mandate. Furthermore, as proposed in the previous section, an independent body should be established to monitor the implementation of R2P, and thereby disadvantages for the protection of people could be avoided. R2P is therefore applicable to disaster relief action. Interpreting R2P as humanitarian intervention merely framed in different terms does not live up to its holistic nature. Its components ‘prevent, react, and rebuild’ could entail a wide range of measures falling short of the use of force. The R2P concept, together with IDRL and international human rights law, rather establishes a general framework for the protection of people from humanitarian catastrophes linked to climate change. The last challenge analysed above addressed the potential absence of political support for an extension of R2P to climate change-related humanitarian catastrophes. This initial scepticism could be overcome by establishing clear standards for the application of R2P in practice, which this dissertation has attempted to develop. Furthermore, even if states refuse to extend R2P beyond the scope agreed to at the 2005 World Summit, many may rethink their positions in the future, when the impacts of climate change become more severe, and when they themselves are dependent on foreign aid. In conclusion, although R2P’s application to humanitarian catastrophes linked to climate change poses significant challenges, none of them are insurmountable. Considering its potential broad range of measures falling short of the use of force, R2P could make an important contribution to the protection of people from the devastating consequences of climate change. 1252 Compare also St. Clair (n. 1226), 181, arguing that ‘[t]he world community has the responsibility to protect human security, which includes the security of both current and future generations of human beings.’

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V. Conclusion In summation, a number of conclusions can be drawn from this chapter. When applied to the impacts of climate change, R2P would entail a responsibility of individual states and the international community to protect people from humanitarian catastrophes linked to climate change. Accordingly, the scope of R2P should be extended to cover genocide, war crimes, ethnic cleansing, crimes against humanity, and humanitarian catastrophes linked to climate change that feature a massive scale of human suffering. Such a responsibility could provide hope to people living in states that are most severely affected by climate change, notably the SIDS at risk of disappearing. These are the states that have contributed the least to global warming, but who have already suffered the most. R2P’s application in this scenario would further emphasise that developed countries must accept their responsibility for climate change, which should also involve a responsibility to protect people from climate change-induced humanitarian catastrophes. By virtue of their sovereignty, individual states bear the primary responsibility to respond to natural disasters resulting from climate change. Because these responsibilities are derived from international human rights law, and are further clarified in the ILC Draft Articles,1253 it would be appropriately consistent to apply R2P to natural disasters linked to climate change. With regard to the international community’s responsibility to react, embracing R2P would not only clarify existing international law, but could advance it in the long term by establishing a responsibility to provide relief to states affected by climate change. Nevertheless, a broad interpretation of R2P increases the risk of misuse because states could justify their actions by claiming to be responding to any of the crimes that may require a response in the name of R2P. Therefore, this thesis developed a set of guidelines for the application of R2P. Most importantly, an independent body should be established to monitor the implementation of R2P, and guarantee that the protection of people remains the exclusive goal of any action undertaken within the framework of R2P. This achievement could also alleviate many of the criticisms levelled against R2P in that many states fear that others use the concept as a pretext for unilateral intervention for self-seeking reasons. The analysis has further demonstrated that R2P does not only pertain to military intervention but could rather encompass a wide range of measures aimed at protecting people. If R2P is to be implemented effectively, it is vital that the international community recognises the potential offered by the concept beyond the use of force. In this regard, it is important to note that ‘[R2P] is not always, or immediately, code for coercive military 1253 Draft Articles on the Protection of Persons in the Event of Disasters (n. 978), Articles 10, 11, 13.

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intervention.’1254 Extending R2P would offer an effective alternative to military intervention, and the possibility to save millions of lives.1255 Therefore, this thesis argues in favour of applying R2P to humanitarian catastrophes linked to climate change.

1254 McLachlan-Bent and Langmore (n. 928), 52. 1255 ibid., 60.

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F.

General Conclusion and Outlook

The overall purpose of this PhD thesis has been to develop an effective concept for the protection of people from the impacts of climate change. For this purpose, six research questions and two sub-questions were delineated in the introduction. This chapter is dedicated to providing answers to these questions and to giving an outlook on the future. I. Initially, existing approaches to mitigating climate change, including the UNFCCC and the Kyoto Protocol, the 2015 Paris Agreement, and international human rights law, were presented. The UNFCCC and its additional Kyoto Protocol mark the first global efforts to confronting climate change through reductions of GHG emissions. One important shortcoming of the Kyoto Protocol is its limitation to obligations on the part of developed countries, given that four of the ten largest CO2 emitters are developing countries. Furthermore, the two biggest producers of CO2, the US and China, either have not ratified the protocol (the US) or are not classified as an Annex I-country (China). Therefore, even full implementation of the Kyoto Protocol without additional measures would have contributed little to the overall reduction of atmospheric CO2 after a few decades. The 2015 Paris Agreement can surely be deemed a diplomatic and political success. It addresses developed and developing countries, and establishes the goal of limiting global temperature increase to well below 2 °C above pre-industrial levels. However, it does not determine concrete steps to be taken by states to achieve this aim. Action on climate change is not only about mitigating and adapting to its impacts, it should rather encompass a responsibility of states to assist states affected by disasters linked to climate change. International human rights law does enshrine some protection duties on the part of states. In terms of humanitarian catastrophes, states are required to reduce activities that directly contribute to climate change, and states affected by disasters are obligated to provide disaster relief and humanitarian assistance to their populations to prevent violations of their rights. If a state is unable to provide access to food for its population, it is obligated to seek external assistance. A responsibility of other states to provide aid to victims of natural disasters can be based on the international duty of cooperation, although it remains unclear which duties states exactly possess. International human rights law further stipulates a duty of states to mitigate climate change towards their own populations, if the impacts of climate change have undermined human rights. Due to the freedom of contract, other states are not obligated to participate in international climate agreements to mitigate climate change.

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A human right to a healthy environment is currently non-existent. However, the author posits that recognising such a right would constitute a strong political signal, emphasising the importance of protecting the environment for current and future generations. Individuals would be able to file complaints with the UNHRC about the violation of the right, and responsible states could then be held accountable. Furthermore, states and other actors would be disincentivised from supporting industries that pollute the environment by emitting GHGs. In conclusion, this thesis has explicated the need to develop new and innovative approaches to cope with the global challenge of climate change. II. In the absence of a ‘climate war’ and taking into consideration the high threshold for assuming the commission of war crimes, genocide, or ethnic cleansing, the only remaining crimes regarding climate change which are eligible for external intervention under R2P are crimes against humanity. This thesis has analysed two sets of actions that could amount to crimes against humanity: the contribution to the impacts of climate change through GHG emissions or deficient adaptation or mitigation policies, or the failure to protect populations from natural disasters that are connected to climate change. However, both connecting factors do not constitute crimes against humanity. There are several reasons to verify this assumption: firstly, the most horrendous impacts of climate change have not yet occurred, so that a connecting factor for the existence of crimes against humanity is missing. Furthermore, it is difficult to link a particular natural phenomenon directly to climate change, and more importantly, to the potential contribution of states to this state of affairs. Therefore, at this stage, it is difficult to argue that GHG emitters or states that fail to protect their populations from the impacts of climate change are committing crimes against humanity. III. The analysis has demonstrated that an application of R2P is only feasible in cases of extreme humanitarian catastrophes linked to climate change. By contrast, R2P cannot be effectively applied as a general call for states to mitigate climate change. In this first scenario, people are suffering on a massive scale, a culprit is easily identifiable, and an essentially non-military intervention of the international community has reasonable prospects of success. Besides international responsibilities that have already been codified, this particular reconceptualisation of R2P would establish an additional political and moral responsibility to support people in need. The different components of R2P, namely prevention, reaction, and rebuilding, perfectly fit into the already existing framework established by IDRL. This thesis posits that, taking both R2P and IDRL together, effective protection to people suffering from such catastrophes is guaranteed. Furthermore, taken as a whole, past international cli-

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mate agreements can be regarded as states’ contributions to fulfil their responsibility to protect people from climate change. According to the author, the Paris Agreement encourages states to fulfil their responsibility to prevent natural disasters, as strengthening the adaptive capacities of states and fostering climate resilience are among its overall goals. Important fields of cooperation between states include early warning systems, emergency preparedness, and the prevention of and the reaction to slow onset events. As foreseen in Article 9(1), developed states should assist developing countries in their adaptation and mitigation efforts, which also corresponds to the R2P principle that places responsibilities on individual states in the first place, while responsibilities of the international community arise subordinately. Individual states, the international community, and NGOs can all have different responsibilities in the aftermath of disasters and with respect to islands that are under threat of disappearing due to rising sea levels. If a natural disaster leads to a humanitarian catastrophe on the territory of a single state, the culprit is easily identifiable, as in the case of cyclone Nargis in Myanmar in 2008. In this regard, states bear the primary responsiblity to protect their people from humanitarian catastrophes. Entirely new would be the proposed responsibility of states to grant asylum to people fleeing the impacts of climate change. However, the author posits that the exacerbating impacts of climate change on the environment, ecosystems, the global economy, and human well-being necessitate the inclusion of ‘climate migration’ on the political agenda. In fact, such a responsibility should not amount to a legal obligation of states to grant asylum to everyone because such a duty would exceed national capacities. It rather aims to draw attention to the impending challenge of climate migration, and of the responsibility of states to act. Furthermore, R2P should not be equated with a right to unilateral intervention. Authorisation by the UNSC should in any case be sought before an intervention of the international community in cases of a humanitarian catastrophe in a country. In this regard, a Security Council resolution constitutes the only possible legal vehicle for the international community to provide humanitarian assistance to those states that refuse external intervention. Because the ILC Draft Articles on the Protection of Persons in the Event of Disasters do not yet constitute international law, and a rule of customary international law to intervene in case of disasters has not yet emerged, external intervention cannot be based on this foundation. In terms of the general obligation of states to mitigate climate change, the author maintains that an application of R2P would not be useful. In this regard, a responsibility of states to sign and ratify international climate agreements, and a responsibility to vote in favour of climate change-related resolutions in the UNSC and the General Assembly have been analysed. In this scenario, the scale of human suffering represents a future

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threat that is not yet measurable. An application of R2P had been denied for several reasons. Firstly, one main feature of R2P is its holistic nature, which manifests itself in the three components of ‘prevent, react, rebuild’. However, only the sphere of prevention is relevant with regard to CCM so that the R2P concept does not fit to the mitigation of climate change. Furthermore, one cannot identify a single culprit of climate change because many states, individuals, and companies are contributing to this global phenomenon. These actors should all be involved in CCM. However, R2P only concerns the behaviour of states, and their constituent role as members of the international community; individuals, companies and NGOs do not have responsibilities in the same manner. The R2P concept views military intervention as a last resort, which would be clearly excessive to the anticipated goal of pressuring states to join environmental agreements. A legal basis for such external intervention to enforce CCM is not apparent. Given that the effects of climate change are mostly oberservable only within state borders, climate change in general currently does not represent a threat to international peace and security and thus, the UNSC will not adopt a resolution under Chapter VII on CCM. Therefore, the author argues that R2P cannot be applied as a general obligation of states to mitigate climate change. Future climate change will reveal whether a different assessment is required. IV. This thesis posits that the core foundations of R2P1256 can, to some extent, serve as a legal basis for a responsibility to protect people from humanitarian catastrophes connected to climate change. The notion of sovereignty-as-responsibility encapsulates a duty on the part of states to care for their populations and to prevent violations of their rights. In situations of humanitarian emergency, states are therefore required to take appropriate measures to protect their populations. The understanding of sovereignty-as-responsibility further provides a moral basis for a secondary responsibility of the international community to deal with humanitarian catastrophes. In today’s globalised world that faces the intertwined challenges of climate change, political instability, food insecurity, conflict, and poverty, solidarity must not terminate at national borders. This understanding is equally emphasised by the emergence of the principle of solidarity, which states that global challenges must be managed in a way that distributes costs and burdens fairly between states.

1256 As noted above, these are obligations inherent in the concept of sovereignty; the responsibility of the Security Council under Article 24 of the UN Charter; and international human rights law, humanitarian law, and national law.

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The Security Council is not obligated to behave in a particular way, emphasising that a duty to authorise intervention on the behalf of states affected by natural disasters resulting from climate change does not exist. Although certain restrictions on council action would be optimal, such obligations are de lege ferenda. Nevertheless, UN member states possess a political and moral responsibility which acts as an incentive to assist states in need. Because this thesis posits that R2P itself does not entail legal consequences, this moral responsibility suffices to justify the application of R2P in this scenario. In term of international human rights law, humanitarian law, and national law, individual states and the international community must adopt a broad range of measures before, during, and in the aftermath of humanitarian catastrophes. Although the responsibility to protect their populations primarily lies with individual states, the existence of an international duty to cooperate, derived from international human rights law, is now widely recognised. The notion of sovereignty-as-responsibility further requires states to reduce their GHG emissions to fulfil the general obligation to mitigate climate change. The responsibilities of states are not solely owed towards their own populations, but also to humankind more generally and the international community. Therefore, individual states and the international community are morally obligated to mitigate the causes of climate change. A responsibility to mitigate climate change cannot be based on the duty of the Security Council to maintain international peace and security, given that even an obligation of the UNSC to react to humanitarian catastrophes driven by climate change cannot be established. A worthwhile goal would be the adoption of a thematic resolution on climate change by the UNSC. However, this would require political will on the part of states, and therefore this attempt would face severe difficulties. With regard to international human rights law, humanitarian law, and national laws, only national laws obligate states to mitigate climate change. States are not yet obligated to undertake mitigation measures under international human rights law unless the impacts of climate change directly affect the realisation of human rights. However, this thesis also posits that new obligations on states should be established. A customary obligation to mitigate climate change might emerge, and a human right to a healthy environment should be recognised. CCM should equally be treated as an erga omnes obligation because climate change does not merely concern the most vulnerable countries, but rather affects every single state in the world. V. This thesis has further developed guidelines for the application of an extended R2P to the issue of climate change to prevent misuse of the R2P concept. Firstly, the scope of R2P should be expanded to include humanitarian catastrophes linked to climate change that entail a massive scale of human suffering. Humanitarian 249

F.  General Conclusion and Outlook

catastrophes in this sense are defined as natural events intensified by anthropogenic climate change which lead to one or more casualties or leave people exposed to harsh conditions of life in the aftermath. Furthermore, a lower threshold for the application of R2P is justified because international reactions to such humanitarian catastrophes do not affect state sovereignty to the extent that responses to ‘original’ R2P crimes do. Therefore, humanitarian catastrophes linked to climate change equally require human suffering for the application of R2P, but on a lower scale. The addressees of R2P include individual states and the international community. In this regard, a strict sequencing is established, in the sense that the international community solely intervenes if states affected by humanitarian catastrophes are unwilling or unable to protect their populations. The author proposes an agreement between states that enumerates responsibilities of states towards other states, in which a list of states that should intervene in case of disasters is established. The components of a climate change-related R2P encompass, similarly to the original concept, responsibilities to prevent, react, and rebuild. In addition to the responsibilities that have already been incorporated into international human rights law and IDL, this thesis suggests the inclusion of the protection of people displaced by the impacts of climate change. States should bear the responsibility to grant asylum to a certain number of people based on bilateral and multilateral agreements on ‘climate refugees’. Regarding the application of R2P in practice, past experiences have demonstrated that new mechanisms are required to prevent misuse of the concept. This thesis has proposed the establishment of an independent body to monitor the implementation of R2P, composed of former statesmen, judges, legal scholars, and other experts of international law. Such a body would be responsible for detecting violations of R2P, giving recommendations and, as an ultima ratio, referring situations to the UNSC or proposing to the ICC or the ICJ to initiate investigations. VI. This thesis has delineated four main challenges of applying R2P to extreme humanitarian catastrophes linked to climate change, namely potential harm to doctrine, a risk of abuse, the infeasibility for disaster relief, and the absence of political support. The analysis has equally demonstrated that none of them have proven insurmountable with regard to the overall aim of R2P. An extension of R2P to humanitarian catastrophes linked to climate change would not necessarily harm the doctrine as such. This application would consider the changing nature of international conflicts that are more often linked to the environment, and would correspond to the broad understanding of human security that the ICISS envisaged in its initial conception of R2P. Furthermore, the author argues that the proposal to invoke R2P with regard to the natural disaster in Myanmar in 2008 has not decreased support for the concept, as several statements of state representatives reveal. Much of 250

F.  General Conclusion and Outlook

the criticism of R2P revolves around its application in practice rather than its conception and its scope. One of the most remarkable and innovative features of the concept of R2P is its conception of sovereignty-as-responsibility, emphasising that it respects the sovereign­ty of states and prohibits any unilateral action on the part of states. In limiting the concept to humanitarian catastrophes that are of a (quasi) similar severity as the other recognised R2P crimes, it can be ensured that R2P is not overextended. The potential risk of abuse is probably the most commonly raised criticism against R2P. Given that both the original R2P concept and the R2P framework developed in this dissertation do not allow unilateral intervention of states without being backed by the UNSC, misuse of the concept is highly unlikely. Furthermore, the author proposed the establishment of a new monitoring body to control the implementation of R2P to ensure that measures undertaken in the name of R2P are strictly limited to measures that aim at protecting civilians. Another criticism related to the risk of abuse concerned potential disadvantages for protected populations if intervention is implemented for purely political and strategical reasons rather than humanitarian purposes. However, the people-centred approach of R2P attaches great importance to the protection of people rather than a ‘right to intervene’. Its powerful language reminds states of their responsibilities towards humans, so that disadvantages for the protected populations are highly unlikely. Another criticism that is based upon a misunderstanding of R2P concerns its potential infeasibility for disaster relief. Interpreting R2P as humanitarian intervention merely framed in different terms does not live up to its holistic nature. Its components ‘prevent, react, and rebuild’ could imply a wide range of measures in terms of disaster relief that fall short of the use of force. By treating IDRL and international human rights law as incorporated within the R2P concept, R2P establishes a general framework for the protection of people from humanitarian catastrophes connected to climate change, ranging from the prevention of such catastrophes to recovery efforts. In this regard, R2P, IDRL, and international human rights law are mutually reinforcing. R2P is the broad framework that frames action in cases of climate change-related humanitarian catastrophes, while international human rights law provides a legal underpinning, and IDRL concretises responsibilities under R2P. A potential absence of political support has also been examined as a challenge for an extension of R2P. The analysis has determined that this lack of support is predominantly caused by prevailing ambiguities on the implementation of R2P. This dissertation has developed clear standards that aim to clarify the scope of the concept and the application of R2P in practice. It can be ensured that the sovereignty of states is respected by adhering to these guidelines. Furthermore, it is certain that the impacts of climate change will become more severe in the future, and therefore states that now refuse to extend R2P beyond the scope agreed to at the 2005 World Summit will rethink their 251

F.  General Conclusion and Outlook

positions. This will become particularly apparent when these states are affected by such catastrophes and have become dependant on foreign assistance. VII. In conclusion, this thesis has established that the holistic concept of R2P is suitable for creating an overall framework to respond to humanitarian catastrophes linked to climate change. As a political concept, it does not create legal obligations by itself, but rather places a political and moral responsibility on states and the international community to protect people from the worst atrocities imaginable. Legal obligations of states are derived from other branches of international law, such as IHL, national laws, and international human rights law. Accordingly, R2P’s application to humanitarian catastrophes linked to climate change would primarily have a political symbolic effect. It would raise awareness of the threats posed by climate change, and draw the attention of international civil society to essential human needs.1257 It would further motivate states to take action against climate change, given that the concept would be an important political tool for exerting diplomatic pressure. The implementation of R2P as a response to climate change requires political will among states, which is often difficult to generate. Given that the aim of the UN is, inter alia, to ‘maintain international peace and security’, and to ‘achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character’,1258 states should fulfil their responsibilities towards both individuals and the international community as a whole. The required political will among states is also compounded by the broader weaknesses of the UN System, such as the paralysis of the UNSC. Since the foundation of the UN, the number of member states has increased from 51 to 193 states, but the number of permanent members, and the permanent members themselves, has remained the same. These five members alone are able to veto any resolution of the Security Council; in other terms, 1/40th of all members of the UNSC can block any decision of the Council. This is problematic, given that whole regions are excluded from the decision-making process. Therefore, any UNSC resolution on humanitarian catastrophes linked to climate change will depend on its acceptance by the P5, once again highlighting the necessity to reform the UN. Furthermore, states should remember what they have agreed to at the 2005 World Summit. As Lloyd Axworthy and Allan Rock have contended, ‘there will have to be a renewed sense of political leadership that seeks to reignite the commitment’.1259 They further emphasised the necessity for new state actors to engage in the advancement of the

1257 McAdam and Saul, ‘An insecure climate for human security? Climate-induced displacement and international law’ (n. 243), 391. 1258 ‘Charter of the United Nations’ (n. 85), Article 1. 1259 Axworthy and Rock (n. 76), 68.

252

F.  General Conclusion and Outlook

concept, if R2P is to be applied to challenges others than the four core crimes.1260 States have already embarked on several measures that could be subsumed under a potential responsibility to protect people from climate change. The Paris Agreement in particular will play a crucial role in protecting people from climate change-related natural disasters. However, more engagement on the part of states and the international community is required to transform political commitments under R2P into effective action. As proposed in this dissertation, the establishment of an independent body to prescribe standards for the implementation of R2P, and to detect violations of these standards, would represent an important step towards preventing misuse of the concept. Climate change is one of the greatest current and future challenges of humankind. As John Houghton, climate scientist and former co-chair of scientific assessment for the IPCC stated, the impacts of global warming may be considered a ‘weapon of mass destruction’.1261 Given that environmental damage would be, in most cases, irreversible, R2P could ensure that this damage is kept to a minimum. With regard to the inertia of the international community to react to climate change, a more flexible approach to the international law on climate change is urgently needed.1262 Reinterpreting existing rules constitutes a crucial task when simply awaiting new mechanisms appears unsatisfactory. Accordingly, R2P should be reinterpreted to cover humanitarian catastrophes linked to climate change, as the emergence of rules governing the protection of people suffering from the adverse impacts of climate change is not apparent. In conclusion, there are reasonable grounds to apply R2P to climate change.

1260 ‘Many of the earlier champions have fallen by the wayside (in particular, alas, Canada). New champions will have to emerge. The same is true of any effort to build on the essential components of R2P, by ‘unbundling’ them and seeking to apply them to other collective challenges.’ Compare Axworthy and Rock (n. 868), 68. 1261 He even clarified this characterisation: ‘[l]ike terrorism, this weapon knows no boundaries. It can strike anywhere, in any form – a heatwave in one place, a drought or a flood or a storm surge in another. Nor is this just a problem for the future. The 1990 s were probably the warmest decade in the last 1,000 years, and 1998 the warmest year. Global warming is already upon us’. Compare John Houghton, ‘Global Warming is now a Weapon of Mass Destruction’ The Guardian (28 July 2003) accessed 1 December 2019. 1262 Compare also Nadakavukaren Schefer and Cottier (n. 280), 140.

253

Appendix Party standings in Canada (2006–2011) 39th General Election (January 23rd, 2006)

Government: 124 Opposition: 184 Minority:  60 Number of Seats

Percentage of Popular Vote

Conservative Party of Canada

Political Affiliation

124

36,3 %

New Democratic Party

29

17,5 %

Liberal Party of Canada

103

30,2 %

Bloc Québécois

51

10,5 %

Green Party of Canada

–

4,5 %

Other

1

1 %

Total

308

100 %

Table 1: Results of the 2006 Canadian federal election Source: https://www.sfu.ca/~aheard/elections/2011-results.html

40th General Election (October 14th, 2008)

Government: 143 Opposition: 165 Minority:  22 Number of Seats

Percentage of Popular Vote

Conservative Party of Canada

Political Affiliation

143

37.6 %

New Democratic Party

37

18,2 %

Liberal Party of Canada

77

26,2 %

Bloc Québécois

49

10 %

Green Party of Canada

–

6.8 %

Other

2

1,2 %

Total

308

100 %

Table 2: Results of the 2008 Canadian federal election Source: https://www.sfu.ca/~aheard/elections/2011-results.html

255

2010 Appendix

41st General Election (May 2nd, 2011)

Government: 166 Opposition: 142 Majority:   24 Political Affiliation

Number of Seats

Percentage of Popular Vote

Conservative Party of Canada

166

39.6 %

New Democratic Party

103

30.6 %

Liberal Party of Canada

34

18.9 %

Bloc Québécois

4

6.0 %

Green Party of Canada

1

3.9 %

308

100 %

Other

1 %

Total

Table 3: Results of the 2011 Canadian federal election Source: https://www.sfu.ca/~aheard/elections/2011-results.html

Number of deaths estimated from a combined climate-carbon crisis

NUMBER OF DEATHS

Climate

Carbon

World

2010

2030 150,000

Diarrheal Infections

85,000

Heat & Cold Illnesses

35,000

35,000

Hunger

225,000

380,000

Malaria & Vector Borne Diseases

20,000

20,000

Meningitis

30,000

40,000

Environmental Disasters

5,000

7,000

Air Pollution

1,400,000

2,100,000

Indoor Smoke

3,100,000

3,100,000

Occupational Hazards

55,000

80,000

Skin Cancer

20,000

45,000

4,975,000

5,957,000

Figure 1: Number of deaths estimated from a combined climate-carbon crisis These data are based on estimations of DARA, a Spanish non-profit organisation that evaluates humanitarian aid. According to DARA, continuing today’s carbon-intensive energy use is estimated, together with climate change, to cause 6 million deaths per year by 2030. Source: DARA Climate and Vulnerability Monitor 2012 http://daraint.org/wp-content/uploads/2012/09/CVM2-Low.pdf, 17

256

References Table of Cases International Court of Justice Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) ( Judgement) (2006), ICJ Rep 6 Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ( Judgement) (2007), ICJ Rep 43 Case concerning the Barcelona Traction Light & Power Company, Ltd (Belgium v Spain) ( Judgement) (1970), ICJ Rep 32 Case concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta) ( Judgement) (1985), ICJ Rep 13 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Individual Opinion by Judge Alvarez) (1949), ICJ Rep 39 Fisheries (United Kingdom v Norway) ( Judgement) (1951), ICJ Rep 116 Fisheries Jurisdiction Case (United Kingdom v Iceland) ( Judgement, Merits, Joint Separate Opinion of Judges Forster, Bengzon, Jiménez de Aréchaga, Nagendra Singh and Ruda) (1974), ICJ Rep 3 Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Separate Opinion of Vice-President Weeramantry) (1997), ICJ Rep 88 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Separate Opinion of Judge Gerald Fritzmaurice) (1971), ICJ Rep 208 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004), ICJ Rep 136 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996), ICJ Rep 226 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits, Judgement) (1986), ICJ Rep 14 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) ( Judgement) (1969), ICJ Rep 3

257

References Appendix

Nuclear Tests (Australia v France) ( Judgement) (1974), ICJ Rep 253

International Criminal Court The Prosecutor v Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad al Abd-al-Rahman (“AU Kushayb”) (Decision on the Prosecution Application under Article 58(7) of the Statute) (2007) ICC-02/05–01/07 The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Confirmation of Charges) (2008) ICC-01/04–01/07 The Prosecutor v Jean-Pierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) (2009) ICC-01/05–01/08 The Prosecutor v Omar Hassan Ahmad al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest) (2009) ICC-02/05–01/09

International Criminal Tribunal for the former Yugoslavia The Prosecutor v Mladen Naletic, aka “Tuta” and Vinko Martinovic, aka “Štela” ( Judgement) (2003) IT-98–34-T The Prosecutor v Anto Furundžija (Trial Chamber Judgement) (1998) IT-95–17/1 The Prosecutor v Blagoje Simić, Miroslav Tadić and Simo Zarić ( Judgement) (2003) IT-95–9-T The Prosecutor v Dario Kordič & Mario Čerkez ( Judgement) (2001) IT-95–14/2-T The Prosecutor v Dario Kordič & Mario Čerkez ( Judgement) (2004) IT-95–14/2-A The Prosecutor v Dario Kordič & Mario Čerkez (Appeals Chamber Judgement) (2004) IT-95–14/2-A The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic ( Judgement) (2001) IT-96–23-T and IT-96-23-1-T The Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic ( Judgement) (2002) IT-96–23/1-A The Prosecutor v Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (1995) IT-94–1-AR72 The Prosecutor v Duško Tadić (Opinion and Judgement, Trial Chamber) (1997) IT94–1-T

258

Table of Cases 

The Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu ( Judgement) (2005) IT-03– 66-T The Prosecutor v Mile Mrkšić Veselin Šljivančanin ( Judgement) (2009) IT-95–13/1-A The Prosecutor v Milorad Krnojelac (Appeals Chamber Judgement) (2003) IT-97– 25-A The Prosecutor v Radislav Krstic (Trial Chamber Judgement) (2001) IT-98–33-T The Prosecutor v Radoslav Brđanin ( Judgement) (2004) IT-99–36-T The Prosecutor v Slobodan Milošević (Decision on Motion for Judgement of Acquittal) (2004) IT-02–54-T The Prosecutor v Tihomir Blaškic (Trial Chamber Judgement) (2000) IT-95–14-T The Prosecutor v Vasilljević (Trial Judgement) (2002) IT-98–32-T The Prosecutor v Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Antić, also known as “Vlado” (Trial Chamber Judgement) (2000) IT-95–16-T

International Criminal Tribunal for Rwanda The Prosecutor v Elizaphan & Gérard Ntakirutimana ( Judgement and Sentence) (2003) ICTR-96–10 & ICTR-96–17-T The Prosecutor v Jean-Paul Akayesu ( Judgement) (1998) ICTR-96–4-T The Prosecutor v Laurent Semanza ( Judgement and Sentence) (2003) ICTR-97–20-T

Permanent Court of Arbitration Island of Palmas Case (The Netherlands v USA) (Arbitral Award) (1928) II, 2 RIAA 829 Trail Smelter Arbitration (United States v Canada) (Arbitral Award) (1938 and 1941), 3 RIAA 1905

European Court of Human Rights Al-Adsani v The United Kingdom ( Judgement) (2001), 34 EHRR 11 Budayeva and others v Russia ( Judgement) (2008) App nos 15339/02, 21166/02, 20058/02, 11673/02, and 15343/02

259

References Appendix

Hatton and others v United Kingdom ( Judgement) (2003), 37 EHRR 28 López Ostra v Spain ( Judgement) (1994), 20 EHRR 277

Other Courts The Environment and Human Rights (Advisory Opinion) [2017], OC-23/17, Series A No 23 (Inter-American Court of Human Rights) Urgenda Foundation v. Kingdom of the Netherlands (Appeal Judgement) (2018) Case number 200.178.245/01 (The Hague Court of Appeal) Völkermord in Bosnien-Herzegowina ( Judgement) (2000) 2 BvR 1290/99, NjW 2001, 1848 (Bundesverfassungsgericht)

Table of Legislation Treaties, Conventions, Declarations and Statutes Adoption of Paris Agreement (12 December 2015), UN Doc. FCCC/CP/2015/L.9, Annex African Charter on Human and Peoples’ Rights (27 June 1981), OAU Doc. CAB/ LEG/67/3 rev. 5, 21 ILM 58 (1982) Agenda 21 (United Nations Conference on Environment & Development, Rio de Janeiro, Brazil, June 3rd to 14th, 1992) American Convention on Human Rights, “Pact of San Jose”, Costa Rica 22 November 1969 – – Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) 17 November 1988 American Declaration of the Rights and Duties of Man (2 May 1948), OEA/Ser.L.V/ II.82 doc.6 rev.1 Asian Human Rights Charter (17 May 1998) Charter of Human Rights and Responsibilities Act 2006 (25 July 2006), Act No. 43/2006 Charter of the United Nations (26 June 1945), 1 UNTS XVI (UN) Convention for the Establishment of an Inter-American Tropical Tuna Commission (31 May 1949), 80 UNTS 3

260

Table of Legislation 

Convention for the Safeguarding of the Intangible Cultural Heritage (17 October 2003), 2368 UNTS 1 Convention on Biological Diversity (5 June 1992),

1760 UNTS 79

Convention on the Rights of Persons with Disabilities (13 December 2006), 2515 UNTS 3 Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948), UN Doc. A/Res/260 (III), 78 UNTS 277 Declaration of the United Nations Conference on the Human Environment (16 June 1972), UN Doc. A/CONF.48/14/Rev 1, 11 ILM 1416 Draft Articles on the Law of Treaties with Commentaries (1966), Vol. II, Yearbook of the International Law Commission Draft Articles on the Responsibility of States for Internationally Wrongful Acts’ (2001), UN Doc. A/56/10 Draft Articles on the Protection of Persons in the Event of Disasters (2016), UN Doc. A/71/10, ILC Rep 12 Draft Code of Crimes against the Peace and Security of Mankind with Commentaries (1996), 51 UN GAOR Supp. (No. 10), 14, UN Doc. A/CN.4/L.532, corr.1, corr.3 (1996) Draft Code of Offences against the Peace and Security of Mankind (12 April 1950), Yearbook of the International Law Commission 1950, Volume II, 181, UN Doc. A/ CN.4/25 Elements of Crimes (2 November 2000), UN Doc. PCNICC/2000/1/Add.2 (2000) European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (4 November 1950), UNTS 213, 222 Geneva Convention relative to the Protection of Civilian Persons in Time of War (4th Geneva Convention) (12 August 1949), 75 UNTS 287 – – Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977), 1125 UNTS 3 – – Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977), 1125 UNTS 609

261

References Appendix

International Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979), 1249 UNTS 13 International Convention on the Elimination of All Forms of Racial Discrimination (7 March 1966), 660 UNTS 195 International Convention on the Rights of the Child (20 November 1989), 1577 UNTS 3 International Convention Relating to the Status of Refugees (28 July 1951), 189 UNTS 150 International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171 International Covenant on Economic, Social and Cultural Rights (16 December 1966), 993 UNTS 3 International Treaty on Plant Genetic Resources for Food and Agriculture (3 November 2001), 2400 UNTS 303 (Food and Agriculture Organization of the United Nations) Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (with commentary) (March 2013) Rio Declaration on Environment and Development (14 June 1992), UN Doc. A/ CONF.151/26 (vol. I), 31 ILM 874 Rome Statute of the International Criminal Court (17 July 1998), UN Doc. A/ CONF. 183/9, 2187 UNTS 90 Sendai Framework for Disaster Risk Reduction 2015–2030 (18 March 2015) Statute of the International Criminal Tribunal for the Former Yugoslavia (25 May 1993), UN Doc. S/RES/827 Statute of the International Criminal Tribunal for Rwanda (8 November 1994), UN Doc. S/RES/955 United Nations Framework Convention on Climate Change (9 May 1992), 1771 UNTS 107 Universal Declaration of Human Rights (10 December 1948), UN Doc. A/ RES/217 (III) Vienna Convention on the Law of Treaties (23 May 1969), UN Doc. A/CONF.39/27, 1155 UNTS 331

262

Table of UN documents 

Domestic Law Climate Change Act 2008 26 November 2008 (Parliament of the United Kingdom) Constitution of the People’s Republic of China 4 December 1982 (People’s Republic of China) Constitution of the Portuguese Republic 25 April 1976 (The Portuguese Republic) Constitutive Act of the African Union 1 July 2000

Table of UN documents UN General Assembly 59th Session, 87th Plenary Meeting (7 April 2005), UN Doc. A/59/PV.87 63rd Session, 25th Meeting (19 November 2008), UN Doc. A/C.6/63/SR.25 63rd Session, 22nd Meeting (20 November 2008), UN Doc. A/C.6/63/SR.22 63rd Session, 23rd Meeting (21 November 2008), UN Doc. A/C.6/63/SR.23 63rd Session, 24th Meeting (21 November 2008), UN Doc. A/C.6/63/SR.24 64th Session, 22nd Meeting (8 February 2010), UN Doc. A/C.6/64/SR.22 67th session, 80th Plenary Meeting (15 May 2013), UN Doc. A/67/PV.80 2005 World Summit Outcome (24 October 2005), UN Doc. A/RES/60/1 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) (15 December 1972), UN Doc. A/RES/2994 Declaration on the Protection of All Persons from Enforced Disappearance (18 December 1992), UN Doc. A/Res/47/133 Humanitarian Assistance to Victims of Natural Disasters and Similar Emergency Situations (14 December 1990), UN Doc. A/Res/45/100 Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General (11 November 2011), UN Doc. A/66/551–S/2011/701 Need to Ensure a Healthy Environment for the Well-Being of Individuals (14 December 1990), UN Doc. A/RES/45/94 Prevention of Armed Conflict (14 September 2009), UN Doc. A/63/PV.105

263

References Appendix

Problems of the Human Environment (3 December 1968), UN Doc. A/RES/2398 (XXII) Promotion of a Democratic and Equitable International Order (8 February 2002), UN Doc. A/RES/56/151 Promotion of a Democratic and Equitable International Order (25 February 2003), UN Doc. A/RES/57/213 Protection of Global Climate for Present and Future Generations of Mankind’ (6 December 1988), UN Doc. A/RES/43/53 Protection of Persons in the Event of Disasters (13 December 2016), UN Doc. A/ RES/71/141 The Situation in Bosnia and Herzegovina (18 December 1992), UN Doc. A/ RES/47/121 The Situation in the Syrian Arab Republic (4 June 2013), UN Doc. A/RES/67/262 Uniting for Peace (3 November 1950), UN Doc. A/RES/5/377

UN Security Council 5319th Meeting of the Security Council (9 December 2005), UN Doc. S/PV.5319 5476th Meeting of the Security Council (28 June 2006), UN Doc. S/PV.5476 5563rd Meeting of the Security Council (17 April 2007), UN Doc. S/PV.5663 5781st Meeting of the Security Council (20 November 2007), UN Doc. S/PV.5781 6490st Meeting of the Security Council (25 February 2011), UN Doc. S/PV.6490 6491st Meeting of the Security Council (26 February 2011), UN Doc. S/PV.6491 6528th Meeting of the Security Council (4 May 2011), UN Doc. S/PV.6528 6531st Meeting of the Security Council (10 May 2011), UN Doc. S/PV.6531 6531st Meeting of the Security Council (10 May 2011), UN Doc. S/PV.6531 (Resumption 1) 6587th Meeting of the Security Council (20 July 2011), UN Doc. S/PV.6587 6587th Meeting of the Security Council (20 July 2011), UN Doc. S/PV.6587 (Resumption 1) 6627th Meeting of the Security Council (4 October 2011), UN Doc. S/PV.6627

264

Table of UN documents 

8307th Meeting of the Security Council (11 July 2018), UN Doc. S/PV.8307 8451st Meeting of th Security Council (25 January 2019), UN Doc. S/PV.8451 Draft Resolution February 2012 (February 2012), UN Doc. S/2012/77 Formats of Meetings Related to the Security Council accessed 1 December 2019 Letter dated 31 August 2007 from the Secretary-General addressed to the President of the Security Council (7 December 2007), UN Doc. S/2007/721 Report of the Commission of Experts Established Pursuant to United Nations Security Council Resolution 780 (27 May 1994), UN Doc. S/1994/674 SC Res. 687 (3 April 1991), UN Doc. S/RES/687 SC Res. 940 (31 July 1994), UN Doc. S/RES/940 SC Res. 1264 (15 September 1999), UN Doc. S/RES/1264 SC Res. 1308 (17 July 2000), UN Doc. S/RES/1308 SC Res. 1556 (30 July 2004), UN Doc. S/RES/1556 SC Res. 1625 (14 September 2005), UN Doc. S/RES/1625 SC Res. 1674 (28 April 2006), UN Doc. S/RES/1674 SC Res. 1706 (31 August 2006), UN Doc. S/RES/1706 SC Res. 1970 (26 February 2011), UN Doc. S/RES/1970 SC Res. 1973 (17 March 2011), UN Doc. S/RES/1973 SC Res. 1975 (30 March 2011), UN Doc. S/RES/1975 SC Res. 2014 (21 October 2011), UN Doc. S/RES/2014 SC Res. 2042 (14 April 2012), UN Doc. S/RES/2042 SC Res. 2085 (20 December 2012), UN Doc. S/RES/2085 SC Res. 2109 (11 July 2013), UN Doc. S/RES/2109 SC Res. 2149 (10 April 2014), UN Doc. S/RES/2149 SC Res. 2187 (25 November 2014), UN Doc. S/RES/2187 SC Res. 2249 (20 November 2015), UN Doc. S/RES/2249

265

References Appendix

SC Res. 2385 (14 November 2017), UN Doc. S/RES/2385 Security Council Report, ‘Update Report No. 4, Myanmar’ (14 May 2008) accessed 1 December 2019 Security Council Report, ‘Can the Security Council Prevent Conflict?’ (9 February 2017) accessed 1 December 2019 Syria: Chronology of Events (2 August 2017) accessed 1 December 2019

The Secretary-General Climate Change and its Possible Security Implications: Report of the Secretary General (11 September 2009), UN Doc. A/64/350 Implementing the Responsibility to Protect: Accountability for Prevention, Report of the Secretary-General (10 August 2017), A/71/1016 – S/2017/556 Report of the Secretary-General. A Vital and Enduring Commitment: Implementing the Responsibility to Protect (13 July 2015), UN Doc. A/69/981 Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change (2 December 2004), UN Doc. A/59/565 Report of the Secretary-General. In Larger Freedom: Towards Development, Security and Human Rights for All (21 March 2005), UN Doc. A/59/2005 Report of the Secretary-General. Implementing the Responsibility to Protect (12 January 2009), UN Doc. A/63/677 Report of the Secretary-General. Mobilizing Collective Action: The Next Decade of the Responsibility to Protect (22 July 2016), UN Doc. A/70/999 We the Peoples: The Role of the United Nations in the Twenty-First Century, Report of the Secretary-General (27 March 2000), UN Doc. A/54/2000

International Law Commission Report of the International Law Commission on the Work of its Thirty-Eighth Session (5 May 1986), UN Doc. A/44/10

266

Table of UN documents 

Report of the International Law Commission on the Work of its Fifty-Third Session (23 April –1 June and 2 July 2001), UN Doc. A/56/10 Report of the International Law Commission: Fifty-Third Session (23 April –1 June and 2 July –10 August 2001), Supplement No. 10 (UN Doc. A/56/10) Sixty-eighth Session (2016) (9 May 2017) accessed 1 December 2019

Office of the UN High Commissioner for Human Rights COP21: “States’ Human Rights obligations Encompass Climate Change” – UN Expert (3 December 2015) accessed 1 December 2019 Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights (15 January 2009), UN Doc. A/HRC/10/61

UN Committee on Economic, Social and Cultural Rights General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ (14 December 1990) General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant) (13 December 1991) General Comment No. 12: The Right to Adequate Food (12 May 1999) General Comment No. 14: The Right to the Highest Attainable Standard of Health (11 August 2000) General Comment No. 15: The Right to Water (20 January 2003)

UNFCCC Observer Organizations accessed 1 December 2019 Paris Agreement  – Status of Ratification accessed 1 December 2019 Report of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol on its first Session, held at Montreal from November 28 to December 10, 2005, Addendum (30 March 2006), UN Doc. FCCC/KP/CMP/2005/8/Add.3.

267

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Status of Ratification of the Convention accessed 1 December 2019

UN High Commissioner for Refugees Feller E, ‘The Responsibility to Protect – Closing the Gaps in the International Protection Regime and the new ExCom Conclusion on Complementary Forms of Protection’ (Moving On: Forced Migration and Human Rights Conference, NSW Parliament House, Sydney, 22 November 2005) accessed 1 December 2019 Frequently Asked Questions on Climate Change and Disaster Displacement (6 November 2016) accessed 1 December 2019 Global Trends: Forced Displacement in 2017 accessed 1 December 2019 Guiding Principles on Internal Displacement (22 July 1998), UN Doc. E/ CN.4/1998/53/Add.2 Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (December 2011), UN Doc. HCR/1P/4/ENG/REV.3 In Photos: Climate Change, Disasters and Displacement (1 January 2015) accessed 1 December 2019 Syria Emergency (7 December 2017) accessed 1 December 2019 UNHCR, the Environment and Climate Change (October 2015) accessed 1 December 2019

UN Human Rights Committee General Comment No. 6: The Right to Life (30 April 1982) General Comment No. 12: Article 1 (The Right to Self-determination of Peoples) (13 March 1984) General Comment No. 14: Article 6 (Right to Life) Nuclear Weapons and the Right to Life (9 November 1984)

268

Table of UN documents 

General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004)

UN Human Rights Council Human Rights and Climate Change (28 March 2008), UN Doc. A/HRC/RES/7/23 Human Rights and Climate Change (18 July 2016), UN Doc. A/HRC/RES/32/33 Report of the Independent Expert on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H. Knox (30 December 2013), UN Doc. A/HRC/25/53

Other documents Annan K, ‘The Secretary General Address to the General Assembly’ (New York, 23 September 2003) accessed 1 December 2019 Ban Ki-moon, ‘Statement on Libya’ (17 March 2011) accessed 1 December 2019 Deng FM, ‘Internally Displaced Persons: Report of the Representative of the SecretaryGeneral’ (22 February 1996), UN Doc. E/CN.4/1996/52 El-Hinnawi E, ‘Environmental Refugees: Report of the UN Environment Programme’ (Nairobi) Guterres A, ‘Keynote Speech at the Third Symposium on Corporate Social Responsibility and Humanitarian Assistance’ (Tokyo, 26 November 2007) accessed 1 December 2019 Handl G, ‘Declaration of the United Nations Conference on the Human Environment and Rio Declaration on Environment and Development, Introduction’ (2012) accessed 1 December 2019 International Council on Human Rights Policy, ‘Climate Change and Human Rights: A Rough Guide’ (2008) accessed 1 December 2019 Nzengeya BA, ‘Statement by the President of the Security Council’ (31 January 1992) accessed 1 December 2019

269

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Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’ (15 September 2016) accessed 1 December 2019 UN Development Programme, ‘Community Peace Recovery & Reconciliation: A Handbook for Generating Leadership for Sustainable Peace and Recovery Among Divided Communities’ (2011) accessed 1 December 2019 – – ‘Working Together Build to Protection against Disasters in the Maldives’ (27 December 2014) accessed 1 December 2019 – – ‘Facing Famine – 20 million people are at risk of starvation in worst humanitarian crisis since World War II’ (21 April 2017) accessed 1 December 2019 UN News Centre, ‘Ethiopia: UN-Backed Humanitarian Appeal Launched, Seeking $ 948 million in 2017’ (17 January 2017) accessed 1 December 2019 UN News Centre, ‘Climate Change Recognized as ‘Threat Multiplier’, UN Security Council Debates its Impact on Peace’ accessed 1 December 2019 UN News Service Section, ‘UN News – Somalia: 1.4M Children to Suffer Acute Malnutrition this Year – UN Agency’ (2 May 2017) accessed 1 December 2019 UN Treaty Collection, ‘3. International Covenant on Economic, Social and Cultural Rights’ accessed 1 December 2019 – – ‘4. International Covenant on Civil and Political Rights’ accessed 1 December 2019 The United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (H. M. Stationery Office 1948) Valencia-Ospina, Eduardo, Special Rapporteur, ‘Preliminary Report on the Protection of Persons in the Event of Disasters’ (5 May 2008), UN Doc. A/CN.4/598

270

Table of international, regional and national documents 

Table of international, regional and national documents EU Documents European Parliament Resolution on Darfur (6 April 2006), P6_TA(2006)0142 European Parliament Resolution of 12 July 2007 on the Situation in Darfur (12 July 2007), P6_TA(2007)0342 European Parliament Resolution of 22 May 2008 on the Tragic Situation in Burma (22 May 2008), P6_TA(2008)0231 European Parliament Resolution of 10 March 2011 on the Southern Neighbourhood, and Libya in particular (10 March 2011), P7_TA(2011)0095 EU scales-up its Response to Famine and Drought affected Countries in Horn of Africa with an additional € 165 million (17 March 2017) accessed 1 December 2019 Expulsions of NGO’s from Darfur (12 March 2009), P6_TA(2009)0145 Sudan and the International Criminal Court (28 May 2008), P6_TA(2008)0238 The Situation in Darfur (28 September 2006), P6_TA(2006)0387 European Union, ‘Statement of the European Union at the Informal Discussion on the “Responsibility While Protecting”’ (21 February 2012) accessed 1 December 2019

Statements on the Responsibility to Protect Ahmadein Khalil M, ‘Egypt’s Statement at the United Nations General Assembly Informal Interactive Dialogue on the Responsibility to Protect’ (New York, 11 September 2013) accessed 1 December 2019 Ambassador of the United States Rosemary DiCarlo, ‘General Assembly Debate on the Responsibility to Protect, 63rd Session, 97th Plenary Meeting, Statement of the United States’ (23 July 2009) Amorim C, ‘Statement at the Opening of the General Debate of the 60th Session of the United Nations General Assembly’ (New York, 17 September 2005) accessed 1 December 2019 Antonio de Aguiar Patriota, ‘Statement by Brazil at the United Nations General Assembly Informal Interactive Dialogue on the Report of the Secretary-General on ‘Fulfilling

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our collective responsibility: International assistance and the responsibility to protect’’ (New York, 8 September 2014) accessed 1 December 2019 Araud G, ‘Security Council: Protection of Civilians in Armed Conflict – Statement by France at the United Nations Security Council Debate on the Protection of Civilians in Armed Conflict’ (New York, 11 November 2009) accessed 1 December 2019 – – ‘Statement by France at the United Nations General Assembly Informal Interactive Dialogue on ‘The Responsibility to Protect: Timely and Decisive Response’’ (New York, 5 September 2012) accessed 1 December 2019 – – ‘Statement by France at the Informal Debate on the Responsibility to Protect’ (New York, 11 September 2013) accessed 1 December 2019 Awinador-Kanyirige W, ‘Statement of Ghana at the Informal Discussion on the “Responsibility While Protecting”’ (21 February 2012) Barton R, ‘Statement by the USA at the United Nations General Assembly Interactive Dialogue on Responsibility to Protect’ (New York, 12 July 2011) accessed 1 December 2019 Berger M, ‘Statement of Germany at the 4th Informal Interactive Dialogue on the Responsibility to Protect’ (New York, 5 September 2012) accessed 1 December 2019 Bolton JR, ‘Letter from John R. Bolton, Representative of the United States of America to the UN, to Jean Ping, President of the UN General Assembly’ (30 August 2005) accessed 1 December 2019 Churkin V, ‘Statement by Russia at the United Nations General Assembly Informal Interactive Dialogue on the Responsibility to Protect’ (New York, 11 September 2013) accessed 1 December 2019 Cordeiro Dunlop RM, ‘Statement by Brazil at the United Nations General Assembly Debate on ‘Responsibility to Protect: State responsibility and prevention’’ (New York, 11 September 2013) accessed 1 December 2019 Gasana E-R, ‘Statement by Rwanda at the United Nations General Assembly Interactive Dialogue on the ‘Responsibility to Protect: State responsibility and prevention’’ (New

272

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York, 11 September 2013) accessed 1 December 2019 Hulan H, ‘Canadian Non-Paper on the Responsibility to Protect and the Evolution of the United Nations’ Peace and Security Mandate’ (2004) accessed 1 December 2019 Kamau M, ‘Statement of Kenya at the Informal Discussion on the “Responsibility While Protecting”’ (21 February 2012) accessed 1 December 2019 Karev S, ‘Statement by Russia at the United Nations Security Council Open Debate on the Protection of Civilians in Armed Conflict’ (New York, 25 June 2012) accessed 1 December 2019 – – ‘Statement by Russia at the United Nations General Assembly informal, interactive dialogue on the ‘Responsibility to Protect’ Timely and Decisive Response”’ (New York, 5 September 2012) accessed 1 December 2019 Lyall Grant M, ‘Statement at the United Nations Security Council Open Debate on the Protection of Civilians’ (New York, 9 November 2011) accessed 1 December 2019 Malloch-Brown M, ‘Statement by United Kingdom at the 2009 UN General Assembly Debate on the Responsibility to Protect’ (New York, 23 July 2009) accessed 1 December 2019 MacKay PG, ‘Minister MacKay’s Comments on the Responsibility to Protect at the Munich Security Conference’ (Munich, 3 February 2013) accessed 1 December 2019 Mamabolo K, ‘Statement by South Africa at the United Nations General Assembly Informal Interactive Dialogue on “The Responsibility to Protect: State Responsibility and Prevention”’ (New York, 11 September 2013) accessed 1 December 2019 Margelov M, ‘Statement by Russia at the United Nations General Assembly Debate on Implementing the Responsibility to Protect’ (New York, 23 July 2009) accessed 1 December 2019 Martin P, ‘Address by Canadian Prime Minister Paul Martin to the General Assembly’ (New York, 22 September 2004) accessed 1 December 2019 Matussek T, ‘Statement by Germany at the United Nations General Assembly Debate on Implementing the Responsibility to Protect’ (New York, 24 July 2009) accessed 1 December 2019 Miliband D, ‘Statement by the Right Honourable David Miliband MP United Kingdom Secretary of State for Foreign and Commonwealth Affairs to the 62nd Session of the United Nations General Assembly’ (New York, 27 September 2007) accessed 1 December 2019 Nduhungirehe O, ‘Statement by Rwanda at the United Nations General Assembly Interactive Dialogue on the Responsibility to Protect’ (New York, 8 September 2014) accessed 1 December 2019 Permanent Mission of Canada to the United Nations, ‘Statement by Canada at the United Nations General Assembly informal, interactive dialogue on the ‘Responsibility to Protect: Timely and Decisive Response’’ (New York, 5 September 2012) accessed 1 December 2019 Retzlaff C, ‘Statement of Germany at the Informal Interactive General Assembly Dialogue on the Report of the Secretary-General ‘The role of regional and sub-regional arrangements in implementing the Responsibility to Protect’’ (New York, 12 July 2011) accessed 1 December 2019 Ribeiro Viotti ML, ‘Remarks at the Plenary Meeting of the General Assembly on the Responsibility to Protect’ (23 July 2009) accessed 1 December 2019 – – ‘Statement of Permanent Representative of Brazil to the United Nations Maria Luiza Ribeiro Viotti’ (9 November 2011) accessed 1 December 2019 Rice S, ‘Statement by the United States of America at the United Nations Security Council Meeting on ‘Respect for International Humanitarian Law’’ (New York, 29 January 2009) accessed 1 December 2019 – – ‘Keynote Adress to the 39th International Peace Institute Vienna Seminar on Peacemaking and Peacekeeping’ (Vienna, 15 June 2009) accessed 1 December 2019

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– – ‘Ambassador Rice on UN General Assembly Libya Resolution’ (1 March 2011) accessed 1 December 2019 Ripert J-M, ‘Statement at the Seventh Debate on the Protection of Civilians in Armed Conflict’ (New York, 26 June 2009) accessed 1 December 2019 Rishchynski G, ‘Statement by Canada at the United Nations General Assembly Informal Interactive Dialogue on the Responsibility to Protect’ (New York, 8 September 2014) accessed 1 December 2019 Robertson H, ‘Further Supplementary Written Evidence from the Rt Hon Hugh Robertson MP, Minister of State, Foreign and Commonwealth Office: Humanitarian Intervention and the Responsibility to Protect (USA 19)’ (14 January 2014) accessed 1 December 2019 Rousseff D, ‘Statement at the Opening of the General Debate of the 66th Session of the United Nations General Assembly’ (New York, 21 September 2011) accessed 1 December 2019 Sangqu B, ‘Statement Delivered on Behalf of the Permanent Mission of South Africa to the United Nations at the General Assembly informal, interactive dialogue on the “Responsibility to Protect: Timely and Decisive Response”’ (New York, 5 September 2012) accessed 1 December 2019 Tatham M, ‘Statement at the United Nations General Assembly Interactive Dialogue on the ‘Report of the Secretary-General on the responsibility to protect: Timely and decisive response’’ (New York, 5 September 2012) accessed 1 December 2019 Wilson P, ‘Statement at the United Nations General Assembly Interactive Dialogue on Responsibility to Protect’ (New York, 11 September 2013) accessed 1 December 2019 Wittig P, ‘Speaking Points of Germany at the United Nations General Assembly Informal Interactive Dialogue on Early Warning, Assessment and the Responsibility to Protect’ (New York, 9 August 2010) accessed 1 December 2019

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– – ‘Statement by the President of the Security Council’ (20 July 2011) accessed 1 December 2019 – – ‘Statement by Ambassador Wittig of Germany on Protection of Civilians in Armed Conflict in the Security Council’ (New York, 9 November 2011) accessed 1 December 2019

Other documents African Union, ‘The Common African Position on the Proposed Reform of the United Nations: ‘The Ezulwini Consensus’’ (7th Extraordinary Session of the Executive Council, Addis Ababa, 7 March 2005) accessed 1 December 2019 Asian Disaster Risk Reduction Centre, ‘Information on Disaster Risk Reduction of the Member Countries’ accessed 1 December 2019 Auswärtiges Amt, ‘Siebter Bericht der Bundesregierung über ihre Menschenrechtspolitik in den Auswärtigen Beziehungen und in Anderen Politikbereichen [Seventh Report of the Federal Government on its Human Rights Policy in its External Relations and Other Policy Areas]’ (2005) accessed 1 December 2019 China Institute of International Studies, ‘CIIS in Brief ’ accessed 1 December 2019 Chirac J, ‘Speech to the 61st Session of the United Nations General Assembly’ (New York, 19 September 2006) accessed 1 December 2019 Churkin V, ‘Statement by Russia at the United Nations Security Council Meeting on the explanation of vote on the draft resolution on the referral of the situation in Syria to the ICC’ (New York, 22 May 2014) accessed 1 December 2019 de la Sablière SM, ‘Statement by France at the United Nations Security Council Open Debate on the Protection of Civilians in Armed Conflicts’ (New York, 28 June 2006) accessed 1 December 2019 Dulitzky AE, ‘Letter from Ariel E. Dulitzky, Assistant Executive Secretary, Inter-American Commission on Human Rights, to Paul Crowley, Legal Representative of the

276

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Petitioners’ (16 November 2006) accessed 1 December 2019 ETO Consortium, ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ ( January 2013) accessed 1 December 2019 Federal Government of Somalia, ‘National Development Plan 2017–2019’ (1 October 2016) accessed 1 December 2019 Foreign and Commonwealth Office, ‘The United Kingdom in the United Nations’ ( July 2006) accessed 1 December 2019 German Federal Ministry of Defence, ‘White Paper 2006 on German Security Policy and the Future of the Bundeswehr’ (2006) accessed 1 December 2019 Global Facility for Disaster Reduction and Recovery, ‘World Reconstruction Conference 3’ (2017) accessed 1 December 2019 Gooderham P, ‘Statement by the United Kingdom to the United Nations Human Rights Council Special Session on Libya’ (New York, 25 February 2011) accessed 1 December 2019 Government of France, ‘The French White Paper on Defence and National Security’ (2008) accessed 1 December 2019 Government of the Maldives, ‘Male’ Declaration on the Human Dimension of Global Climate Change’ (14 November 2007) accessed 1 December 2019 Government of the United Kingdom, ‘Chemical Weapon Use by Syrian Regime – UK Government Legal Position’ (29 August 2013) accessed 1 December 2019 Institute for Economics & Peace, ‘Global Terrorism Index’ (2015) accessed 1 December 2019 Intergovernmental Panel on Climate Change (ed), Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation. A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change (Christopher B. Field, Vicente 277

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Barros, Thomas F. Stocker, Dahe Qin, David John Dokken, Kristie L. Ebi, Michael D. Mastrandrea, Katharine J. Mach, Gian-Kasper Plattner, Simon K. Allen, and Tignor, Melinda and Midgley, Pauline M. CUP 2012) – – Climate Change 2014: Mitigation of Climate Change. Working Group III Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Ottmar Edenhofer, Ramón Pichs-Madruga, Youba Sokona, Ellie Farahani, Susanne Kadner, Kristin Seyboth, Anna Adler, Ina Baum, Steffen Brunner, Eickemeier, Patrick, Kriemann, Benjamin, Jussi Savolainen, Steffen Schlömer, Christoph von Stechow, Tim Zwickel, and Jan C. Minx, CUP 2014) – – Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (The Core Writing Team, Rajendra Kumar Pachauri, and Leo Meyer, CUP 2014) – – Summary for Policymakers. Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Christopher B. Field, Vicente R. Barros, David J. Dokken, Katharine J. Mach, Michael D. Mastrandrea, T. Eren Bilir, Monalisa Chatterjee, Kristie L. Ebi, Yuka Otsuki Estrada, Robert C. Genova, Betelhem Girma, Eric S. Kissel, Andrew N. Levy, Sandy MacCracken, and Mastrandrea, Patricia R. and White, Leslie L. CUP 2014) International Coalition for the Responsibility to Protect, ‘Key Developments on the Responsibility to Protect at the United Nations from 2005–2014’ accessed 1 December 2019 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (December 2001) accessed 1 December 2019 International Committee of the Red Cross, ‘The Fundamental Principles of the Red Cross: commentary’ (1979) accessed 1 December 2019 – – ‘Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort amid Increased Fighting’ (17 July 2012) accessed 1 December 2019 – – ‘Somalia: Struggling in the Face of Twin Natural Disasters: Operational Update No 03/13’ (27 November 2013) accessed 1 December 2019

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International Federation of Red Cross and Red Crescent Societies, ‘Law and Legal Issues in International Disaster Response: a Desk Study’ (2007) accessed 1 December 2019 – – ‘Red Cross/Red Crescent Climate Guide’ (November 2007) accessed 1 December 2019 – – ‘Myanmar: Cyclone Nargis 2008 Facts and Figures’ (3 May 2011) accessed 1 December 2019 ––‘RedCrosslaunchesEmergencyAppealforDroughthitMarshallIslands’(24  June2013) accessed 1 December 2019 – – ‘Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’ (30th International Conference, Geneva 26 November 2007), 30IC/07/R4 annex Irish Aid – Department of Foreign Affairs and Trade, ‘Ireland Responding to the Crises in East Africa’ (8 February 2017) accessed 1 December 2019 Kouchner B, ‘Statement by France at the 65th Session of the United Nations General Assembly’ (New York, 27 September 2010) accessed 1 December 2019 Lavrov S, ‘Interview by Minister of Foreign Affairs of the Russian Federation Sergey Lavrov to BBC’ (Moscow, 9 August 2008) accessed 1 December 2019 Lyall Grant M, ‘Statement at the United Nations Security Council meeting on: Threats to International Peace and Security: Prevention and Fight Against Genocide’ (New York, 16 April 2014) accessed 1 December 2019 – – ‘Statement at the United Nations Special Event to Mark the 70th Anniversary of the Liberation of the German Nazi Extermination Camp in Auschwitz-Birkenau’ (New York, 21 January 2015) accessed 1 December 2019 Maldives National Disaster Management Centre, ‘National Disaster Management Centre (NDMC)’ accessed 1 December 2019 Niang I and others, ‘Africa’ in Vicente R Barros and others (eds), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014) Nordic Countries, ‘Joint Comments by the Nordic Countries on the Report of the International Law Commission on the Work of its Sixty-Sixth Session (Chapter V: Protection of Persons in the Event of Disasters)’ (2001) accessed 1 December 2019 Pacific Islands Forum, ‘Majuro Declaration for Climate Leadership’ (5 September 2013) accessed 1 December 2019 Parham P, ‘Statement by Ambassador Philip Parham, Deputy Permanent Representative of the UK Mission to the UN, to the Security Council Open Debate on Protection of Civilians’ (New York, 12 February 2013) accessed 1 December 2019 People’s Republic of China, ‘Position Paper of the People’s Republic of China on the United Nations Reforms’ (7 June 2005) accessed 1 December 2019 – – ‘Position Paper of the People’s Republic of China at the 66th Session of the United Nations General Assembly’ (10 September 2011) accessed 1 December 2019 Putin V, ‘Presidential Address to the Federal Assembly’ (Moscow, 1 March 2018) accessed 1 December 2019 Republic of the Maldives, ‘National Adaptation Programme of Action’ (2007) accessed 1 December 2019 Republic of the Marshall Islands, ‘Republic of the Marshall Islands Joint National Action Plan for Climate Change Adaptation & Disaster Risk Management 2014 – 2018’ (2013) accessed 1 December 2019

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Russian Federation, ‘Concept of the Foreign Policy of the Russian Federation’ (18 February 2013) accessed 1 December 2019 State Department, ‘Leading through Civilian Power: The First Quadrennial Diplomacy and Development Review (QDDR)’ (2011) accessed 1 December 2019 Straw J, ‘We are in Iraq to Bring about Democracy’ (Brighton, 28 September 2005) accessed 1 December 2019 The Tripartite Core Group, ‘Post-Nargis Joint Assessment’ ( July 2008) accessed 1 December 2019 The White House, ‘United States National Security Strategy’ (May 2010) accessed 1 December 2019 The World Bank, ‘Climate Change in the Maldives’ (6 April 2010) accessed 1 December 2019 – – ‘Moving Away from Humanitarian Appeals to Managing Droughts in Ethiopia’ (2 May 2017) accessed 1 December 2019 – – ‘As Natural Disasters Rise, Countries Call for Action on Resilient Crisis Recovery Planning’ (6 June 2017) accessed 1 December 2019 United States, ‘Comments from the United States on the International Law Commission’s Draft Articles on “Protection of persons in the event of disasters”’ (2001) accessed 1 December 2019 – – ‘Statement of the United States at the Informal Discussion on the ‘Responsibility While Protecting’’ (21 February 2012) accessed 1 December 2019 Valero J, ‘Statement by the Bolivarian Republic of Venezuela at the Informal Discussion on the “Responsibility while Protecting”’ (21 February 2012) accessed 1 December 2019 Watt-Cloutier S, ‘Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming caused by Acts and Omissions of the United States’ (7 December 2005) accessed 1 December 2019 Westerwelle G, ‘Statement in the German Bundestag on Resolution 1973’ (Berlin, 18 March 2011) accessed 1 December 2019 Wittig P, ‘Statement of Germany at the Informal Discussion on the “Responsibility while Protecting”’ (21 February 2012) accessed 1 December 2019

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309

Stand: 31. März 2020

Lebenslauf Franziska-Carolin Kring Persönliche Daten Geburtsdatum

5. Oktober 1990

Geburtsort Wuppertal Nationalität Deutsch Familienstand Ledig

Ausbildung Seit 11/2018 OLG Düsseldorf (Stammdienststelle Landgericht Wuppertal) Rechtsreferendarin 11/2014 – 08/2019 Ruhr-Universität, Bochum Doktorandin 10/2009 – 04/2014 Ruhr-Universität, Bochum Erstes juristisches Staatsexamen 08/2006 – 06/2009 Luisengymnasium, Düsseldorf Abitur Französisches Baccalauréat

Arbeitserfahrung 10/2019 – 02/2020 WILDE BEUGER SOLMECKE Rechtsanwälte Partnerschaft mbB, Köln Rechtsreferendarin 07/2019 – 09/2019 Deutscher Bundestag, Berlin Rechtsreferendarin 04/2019 – 06/2019 Staatsanwaltschaft, Wuppertal Rechtsreferendarin 12/2018 – 05/2019 Landgericht Wuppertal Rechtsreferendarin

311

Lebenslauf Appendix

07/2018 – 10/2018 Freshfields Bruckhaus Deringer LLP, Düsseldorf Wissenschaftliche Mitarbeiterin 11/2014 – 12/2017 Institut für Friedenssicherungsrecht und Humanitäres Völkerrecht (IFHV), Bochum Wissenschaftliche Mitarbeiterin 10/2014 – 11/2016 Handelsblatt Fachmedien GmbH, Düsseldorf Freie Mitarbeiterin 09/2013 – 06/2014 IFHV, Bochum Studentische Hilfskraft

Stipendium 05/2015 – 04/2018

Promotionsstipendium der Friedrich Ebert Stiftung

Veröffentlichungen – “Das Ende der Unabhängigkeit des Gerichtshofes?”, Legal Tribune Online, 14.04.2018 – “Ecocide – Greening the International Criminal Court?”, IFHV, Humanitäres Völkerrecht – Informationsschriften, Nr. 01/2017 – “Responsibility to Protect Revisited: A Promising Approach to Tackle Climate Change?”, in: Vasilka Sancin, Are we “manifestly failing” R2P?, Ljubljana 2017, 261–272 – “Environmental Destruction as Crime Against Humanity? Climate Change and its implications on International Criminal Law”, IFHV, Bofax, Nr. 489E, 29.09.2016 – “Kein Spendensammeln für Hisbollah”, Legal Tribune Online, 19.11.2015 – “Die Bedeutung der Schutzverantwortung in den Resolutionen 1970 und 1973 des Sicherheitsrates”, IFHV, Working Paper 4(1) – “Gleiches Recht für alle? Putins Verhältnis zum Schutz eigener Staatsangehöriger im Ausland”, IFHV, Bofax, Nr. 444D, 05.03.2014 (zusammen mit Theresa Stollmann) – “Geht Russland zu weit? – Die Militärbasis auf der Krim und ihre rechtlichen Grundlagen”, IFHV, Kurzbeitrag zum humanitären Völkerrecht (Bofax), Nr. 445D, 07.03.2014 (zusammen mit Theresa Stollmann)

312

Hans-Joachim Heintze

Hans-Joachim Heintze

Legal Opinion on the 1993 Resolutions of the UN Security Council Concerning the Conflict between Armenia and Azerbaijan and the Following Legally Relevant Documents of International Bodies – The Humanitarian Dimension –

DER AUTOR

Prof. Dr. Hans-Joachim Heintze, born in 1949, studied law at the University of Leipzig. Dissertation in 1977 and habilitation in 1983 at the same University. Since 1991 at the Institute for International Law of Peace and Armed Conflict at the Ruhr University Bochum. Research interests: minority rights and the right of self-determination of peoples, international humanitarian law.

AUS DEM INHALT

History of the relevant Resolutions of the Security Council | Resolution 822 (1993) of 30 April 1993 | Resolution 853 (1993) of 29 July 1993 | Resolution 874 (1993) of 14 October 1993 | Resolution 884 (1993) of 12 November 1993 | Overall assessment of the four Security Council resolutions | Developments relating the Security Council Resolutions | The issue of ethnic cleansing and the IDP’s | The durable solution

Berliner Wissenschafts-Verlag | Behaimstr. 25 | 10585 Berlin Tel. 030 84 17 70-0 | Fax 030 84 17 70-21 www.bwv-verlag.de | [email protected]

Legal Opinion on the 1993 Resolutions of the UN Security Council Concerning the Conflict between Armenia and Azerbaijan and the Following Legally Relevant Documents of International Bodies – The Humanitarian Dimension – Soviet nationality policy has led to numerous conflicts in and between the successor states of the Soviet Union, some of them violent. The military occupation of large parts of Azerbaijan by Armenia in 1993 is a particularly drastic example of the consequences of this nationality policy. The UN Security Council reacted to the armed conflict between the two states with four resolutions. It called for an end to the occupation, the withdrawal of the occupying forces and the return of displaced persons. These demands have not yet been met, but they are nonetheless legally binding and form the basis for the necessary peace settlement. 2020, 45 S., kart., 17,– €, 978-3-8305-5026-6 eBook PDF 978-3-8305-4191-2

Michael Lysander Fremuth

Menschenrechte Grundlagen und Dokumente Michael Lysander Fremuth ━

Menschenrechte Grundlagen und Dokumente

DER AUTOR

Prof. Dr. Michael Lysander Fremuth, geb. 1979; Studium der Rechtswissenschaften an der Universität zu Köln; Stationen bei den Vereinten Nationen und der EU-Kommission; 2009 Promotion; 2017 Habilitation; Visiting Scholar in den USA, der Russischen Föderation, Südafrika und der Türkei; seit 2019 Universitätsprofessor für Grund- und Menschenrechte sowie Wissenschaftlicher Direktor des Ludwig Boltzmann Instituts für Menschenrechte. Forschungsschwerpunkte: Menschenrechte, Völker- und Europarecht.

AUS DEM INHALT

Einführung in die Grundlagen der Menschenrechte | Begriff und Wesen der Menschenrechte | Menschenrechtsklassifizierungen | Eine kurze Geschichte der Menschenrechte | Begründung der Menschenrechte und Menschenrechtstheorien | Rechtsquellen und Anwendbarkeit| Schutz und Durchsetzung | Prüfung einer Menschenrechtsverletzung und Arbeit mit menschenrechtlichen Dokumenten | Ausblick: Aktuelle Entwicklungen und Herausforderungen Berliner Wissenschafts-Verlag | Behaimstr. 25 | 10585 Berlin Tel. 030 84 17 70-0 | Fax 030 84 17 70-21 www.bwv-verlag.de | [email protected]

Prof. Dr. Michael Lysander Fremuth kombiniert eine Einführung in den internationalen und regionalen Menschenrechtsschutz mit einer Sammlung der wichtigsten Menschenrechtsdokumente, die teilweise erstmals in deutscher Sprache vorliegen. Das Buch gibt Student*innen, Schüler*innen, Referendar*innen, Wissenschaftler*innen, Praktiker*innen aus Justiz, Wirtschaft und Verwaltung, Journalist*innen sowie interessierten Bürger*innen einen Einblick in den komplexen Schutz der Menschenrechte, erleichtert ihnen den Zugang zu menschenrechtlichen Dokumenten und rüstet sie für den zunehmend kontrovers geführten Menschenrechtsdiskurs. Fremuth definiert und klassifiziert Menschenrechte, erläutert deren Bedeutung, Begründung und Geschichte, stellt bestehende Schutzmechanismen auf internationaler, regionaler und nationaler Ebene vor und skizziert schließlich aktuelle Entwicklungen und Herausforderungen. Einer exemplarischen, mit Schema versehenen Prüfung einer Menschenrechtsverletzung folgt eine annotierte Auswahl menschenrechtlicher Dokumente mit Angabe zu deren Status in Deutschland und Österreich. 2020, 728 S., 1 s/w Abb., 13 farb. Abb., 3 Farbfotos, 3 farb. Tab., kart., 29,80 €, 978-3-8305-3995-7 eBook PDF 978-3-8305-4156-1

Humanitarian catastrophes as a consequence of progressive climate change are one of the greatest challenges of the 21st century. Franziska Kring underlines the important role of the international community of states in combating and mitigating climate change. In her innovative approach, the author applies the concept of Responsibility to Protect (R2P), which was originally intended to prevent human rights violations, to climate change-related humanitarian catastrophes. To this effect, she argues that state responses to such events correspond perfectly with the R2P framework. In particular, the understanding of state sovereignty as responsibility can be used as a theoretical basis for such commitments. The author concludes: Although a general obligation of states to take measures to mitigate climate change cannot be based on R2P, its application in the case of climate change-related humanitarian catastrophes is politically and morally justified.

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