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Ecological Intervention: Prospects and Limits

Published online by Cambridge University Press:  25 March 2011

Robyn Eckersley
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Abstract

This essay seeks to extend the already controversial debate about humanitarian intervention by exploring the morality, legality, and legitimacy of ecological intervention and its corollary, ecological defense. If the legacy of the Holocaust was acceptance of a new category of “crimes against humanity” and an emerging norm of humanitarian intervention, then should the willful or reckless perpetration of mass extinctions and massive ecosystem destruction be regarded as “crimes against nature” or “ecocide” such as to ground a new norm of ecological intervention or ecological defense? The essay shows that the minimalist argument for ecological intervention—multilateral intervention in the case of environmental emergencies with major transboundary spillover effects—is the strongest and may be defended as ecological self-defense. “Eco-humanitarian intervention” to prevent ecocide involving serious human rights violations has the same precarious status as humanitarian intervention, however, and is unlikely to garner the support of developing countries. The most challenging case of all—the military rescue of nonhuman species—finds moral support in environmental philosophy but conflicts with deeply entrenched international legal and political norms concerning state territorial rights.

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Features
Information
Ethics & International Affairs , Volume 21 , Issue 3 , Fall 2007 , pp. 293 - 316
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2007

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References

Notes

1 This definition represents an adaptation of J. L. Holzgrefe's definition of humanitarian intervention in “The Humanitarian Intervention Debate,” in Robert O. Keohane and J. L. Holzgrefe, eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003), pp. 15–52. A less restrictive interpretation might also include nonmilitary coercive measures, such as sanctions, or ecological peacekeeping, which is usually carried out with state consent, but my primary concern here is to explore the circumstances when military force might be justifiable.

2 This is the objective of the International Court of the Environment Foundation (ICEF), a nongovernmental organization founded in Rome in 1992 under the directorship of Judge Amedeo Postiglione of the Italian Supreme Court. See http:\\www.icef-court.org/icef/about.htm, accessed October 7, 2005.

3 ICISS, The Responsibility to Protect—Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Center, 2001).

4 Ibid., p. xi.

5 I should add that no state has ever been held accountable for environmental damage during wartime and no individual has been criminally prosecuted. See Tara Weinstein, “Prosecuting Attacks that Destroy the Environment: Environmental Crimes or Humanitarian Atrocities?” Georgetown International Environmental Law Review 17, no. 4 (Summer 2005), p. 698.

6 For a comprehensive overview of this literature, see Lorraine Elliott, “Imaginative Adaptations: A Possible Environmental Role for the UN Security Council,” Contemporary Security Policy 24, no. 2 (2003), pp. 47–68. See also Markku Oksanen, “Humanitarian Military Intervention Versus Nature: An Environmental Ethical Perspective” (paper presented to the workshop on A New Generation of Green Thought, Seventh Nordic Environmental Social Science Research (NESS) Conference, held at Gothenburg University, Sweden, June 15–17, 2005).

7 Mark Imber, Environment, Security and UN Reform (New York: St. Martin's Press, 1994), p. 19.

8 John Houghton, “Global Warming Is Now a Weapon of Mass Destruction,” Guardian, July 28, 2003.

9 Daniel Deudney, “The Case against Linking Environmental Degradation to National Security,” Millennium 19, no. 3 (Winter 1990), pp. 461–76.

10 Ken Conca and Geoffrey D. Dabelko, eds., Environmental Peacekeeping (Washington, D.C., and Baltimore, Md.: Woodrow Wilson Center Press and Johns Hopkins University Press, 2002).

11 Daniel Deudney, “Environmental Security: A Critique,” in Daniel Deudney and Richard A. Matthew, eds., Contested Grounds: Security and Conflict in the New Environmental Politics (Albany, N.Y.: State University of New York Press, 1999), p. 214.

12 Derrick M. Kedziora, “Gunboat Diplomacy in the Northwest Atlantic: The 1995 Canada-EU Fishing Dispute and the United Nations Agreement on Straddling and High Migratory Fish Stocks,” Northwestern Journal of International Law and Business 17, nos. 2/3 (Winter/Spring 1996), p. 1132.

13 I hasten to add that this is a hypothetical situation designed to force a confrontation with the environmental ethical issues at stake. The Rwandan government has an active program to save the mountain gorillas.

14 Karen T. Litfin, ed., The Greening of Sovereignty in World Politics (Cambridge, Mass.: MIT Press, 1998).

15 I use the term “political legitimacy” here to refer to sociological legitimacy, while “morality” refers to normative legitimacy. The former refers to social and political conventions of rightful conduct in a particular community (observable by an anthropologist or sociologist), while the latter refers to normative claims of justice (which may vary according to particular moral or religious frameworks).

16 Independent International Commission on Kosovo, Kosovo Report (New York: Oxford University Press, 2000), pp. 187–98.

17 United Nations Charter, Articles 2(4) and 51; available at http:\\www.un.org/aboutun/charter/.

18 United Nations Declaration on Environment and Development, Principle 25; available at http:\\www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163.

19 See Linda A. Malone, “‘Green Helmets’: A Conceptual Framework for Security Council Authority in Environmental Emergencies,” Michigan Journal of International Law 17 (1996), pp. 515–36; and Michael Murphy, “Achieving Economic Security with Swords as Ploughshares: The Modern Use of Force to Combat Environmental Degradation,” Virginia Journal of International Law 39 (1999), p. 1197.

20 United Nations Security Council, Note by the President of the Security Council, S/23500, January 31, 1992, p. 3; available at http:\\www.sipri.org/contents/cbwarfare/cbw_research_doc/cbw_historical/cbw_historical/cbw-unsc23500.html.

21 The customary international law of preemptive defense, according to the “Caroline criteria,” requires that there must be “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation,” and the action taken must not be “unreasonable or excessive.” See Michael Byers, “Iraq and the ‘Bush Doctrine’ of Pre-emptive Self-Defence,” Crimes of War Project, August 20, 2002; available at http:\\www.crimesofwar.org/expert/bush-byers.html.

22 Trail Smelter Case (United States v. Canada), Arbitral Tribunal, Montreal, April 16, 1938, and March 11, 1941; United Nations Reports of International Arbitral Awards 3 (1947), p. 1905.

23 Moreover, the victim state must show causation and a lack of due diligence on the part of the offending state, a test that rests on the prevailing understanding of what is “reasonable use of territory.”

24 Nuclear Tests Case (Australia v. France), ICJ Reports, 1973, p. 99; (New Zealand v. France), ICJ Reports, 1974, p. 135. As it turned out, France voluntarily agreed to halt nuclear testing, so the ICJ was not required to make a determination on the specific claim.

25 A jus cogens norm may not be violated by any state, including states that object to the norm, which means that it can override ordinary customary law (which is based on consent).

26 The marsh region is located at the confluence of the Tigris and Euphrates rivers in southeastern Iraq and once formed the largest system of wetlands and lakes in the Middle East, covering an area of around 20, 000 square kilometers. Not only does the marshland contain rich deposits of oil, but they also provided a refuge for political opponents of Saddam Hussein's regime. Human Rights Watch, “The Iraqi Government Assault on the Marsh Arabs,” A Human Rights Watch Briefing Paper, January 2003; available at http:\\www.hrw.org/backgrounder/mena/marsharabs1.htm; accessed October 3, 2005). See also Sayyed Nadeem Kazmi and Stuart Leiderman, “Twilight People: Iraq's Marsh Inhabitants,” Human Rights Dialogue 2, no. 11 (Spring 2004).

27 According to Human Rights Watch, the population of the Marsh Arabs in their ancestral homeland has been reduced from around 250, 000 in 1991 to around 20, 000 in 2003, with an estimated minimum of 100, 000 internally displaced in Iraq. Human Rights Watch, “The Iraqi Government Assault on the Marsh Arabs.” See also Aaron Schwabach, “Ecocide and Genocide in Iraq: International Law, the Marsh Arabs, and Environmental Damage in Non-International Conflicts,” Colorado Journal of International Environmental Law & Policy 15, no. 1 (2004), pp. 1–28.

28 For example, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (working with the U.S.-based Sierra Club Legal Defense Fund) has produced a Draft Declaration of Principles on Human Rights and the Environment, which is incorporated into the Sub-Commission's Final Report. Final Report on Human Rights and the Environment, Commission on Human Rights, Sub-commission on Prevention of Discrimination and Protection of Minorities, UN ESCOR, 46th Sess., UN Doc. E/CN.4/Sub.2/1994/9 (1994), pp. 74–77.

29 See, e.g., Nancy Lee Peluso, “Coercing Conservation: The Politics of State Resource Control,” in Ronnie D. Lipschutz and Ken Conca, eds., The State and Social Power in Global Environmental Politics (New York: Columbia University Press, 1993), pp. 46–70.

30 See, e.g., Tzvetan Todorov, “Right to Intervene or Duty to Assist?” in Nicholas Owen, ed., Human Rights, Human Wrongs: The Oxford Amnesty Lectures (Oxford: Oxford University Press, 2001); and Mohammed Ayoob, “Humanitarian Intervention and State Sovereignty,” International Journal of Human Rights 6, no. 1 (2002), pp. 81–102.

31 For a more detailed discussion of these differences, see Holzgrefe, “The Humanitarian Intervention Debate,” in Keohane and Holzgrefe, eds., Humanitarian Intervention, pp. 37–49.

32 Ibid., pp. 41–43.

33 Michael Byers and Simon Chesterman, “Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law,” in Keohane and Holzgrefe, eds., Humanitarian Intervention, pp. 177–203.

34 Ibid., p. 202.

35 Ibid.

36 Jane Stromseth, “Rethinking Humanitarian Intervention: The Case for Incremental Change,” in Keohane and Holzgrefe, eds., Humanitarian Intervention, pp. 243–44. For example, NATO did not plead exceptional illegality for its intervention in Kosovo; rather, it justified its actions as legally exceptional in order to prevent genocide.

37 As Thomas M. Franck goes on to point out, while some illegal acts of intervention have been roundly condemned, others have been greeted with “mute, but evident satisfaction,” while still others have received retrospective validation through the authorization of a United Nations presence. See Thomas M. Franck, “Interpretation and Change in the Law of Humanitarian Intervention,” in Keohane and Holzgrefe, eds., Humanitarian Intervention, pp. 216–26.

38 Jean Bethke Elshtain, “International Justice as Equal Regard and the Use of Force,” Ethics and International Affairs 17, no. 2 (Fall 2003), pp. 63–75.

39 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd ed. (New York: Basic Books, 2000), p. 107; Thick and Thin: Moral Argument at Home and Abroad (Notre Dame, Ind.: University of Notre Dame Press, 1994), pp. 15–19; and “The Politics of Rescue,” Social Research 62 (1995), pp. 53–66.

40 David Ehrenfeld, The Arrogance of Humanism (Oxford: Oxford University Press, 1981).

41 Peter Singer, Animal Liberation: A New Ethics for Our Treatment of Animals (New York: The New Review, 1975); Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983); and Paola Cavalieri and Peter Singer, eds., The Great Ape Project: Equality Beyond Humanity (New York: St. Martin's Press, 1994).

42 For a defense of ecocentrism, see Robyn Eckersley, Environmentalism and Political Theory: Toward an Ecocentric Approach (Albany, N.Y.: State University of New York Press, 1992). For a general stocktaking of nonanthropocentric discourses, see Robyn Eckersley, “Ecocentric Discourses: Problems and Future Prospects for Nature Advocacy,” in John Dryzek and David Schlosberg, eds., Debating the Earth: The Environmental Politics Reader, 2nd ed. (Oxford: Oxford University Press, 2005), pp. 364–81.

43 Great Ape Project, “Declaration of Great Apes”; available at http:\\www.greatapeproject.org/declaration.html; accessed October 4, 2005.

44 Robert Goodin, Carole Pateman, and Roy Pateman, “Simian Sovereignty,” Political Theory 25, no. 6 (1997), pp. 821–49.

45 Ibid., pp. 834–35.

46 Biodiversity is used in the 1992 UN Convention on Biological Diversity to encompass all aspects of variability evident within the living world, including diversity within and between individuals; within populations; within species; and within communities and ecosystems on land and water.

47 The preamble to the 1992 UN Convention on Biological Diversity recognizes that the conservation of biological diversity is a common concern of humankind. Similarly, the preamble to the UN Framework Convention on Climate Change also acknowledges “that change in the Earth's climate and its adverse effects are a common concern of humankind.” See Frank Biermann, “‘Common Concern of Humankind’: The Emergence of a New Concept of International Environmental Law,” Archiv des Völkerrechts 34 (1996), pp. 426–81.

48 Franz Xaver Perrez, “The Relationship between ‘Permanent Sovereignty’ and the Obligation Not to Cause Transboundary Environmental Damage,” Environmental Law 26 (1996), p. 1207.

49 Friedrich Kratochwil, “Sovereignty as Dominium: Is There a Right of Humanitarian Intervention?” in Gene M. Lyons and Michael Mastanduno, eds., Beyond Westphalia? National Sovereignty and International Intervention (Baltimore, Md.: Johns Hopkins University Press, 1995), p. 25.

50 See the 1982 United Nations Convention on the Law of the Sea, Article 56; the 1992 Convention on Biological Diversity, Article 15; and the Food and Agricultural Organization's International Treaty on Plant Genetic Resources for Food and Agriculture, Article 10.1. Peter H. Sand, “Sovereignty Bounded: Public Trusteeship for Common Pool Resources?” Global Environmental Politics 4, no. 19 (2004), pp. 47–48.

51 Article 1, GA resolution 1803 (XVII), December 14, 1962.

52 Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties (Cambridge: Cambridge University Press, 1997), pp. 369–70.

53 Principle 2 of the Rio Declaration provides that “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

54 See note 47.

55 A. John Simmons, “On the Territorial Rights of States,” in Ernest Sosa and Enrique Villanueva, eds., Social, Political, and Legal Philosophy (Boston: Blackwell, 2001), p. 301.

56 See Charles Beitz, Political Theory and International Relations (Princeton, N.J.: Princeton University Press, 1979).

57 Simmons, “On the Territorial Rights of States,” in Sosa and Villanueva, eds., Social, Political, and Legal Philosophy, p. 303.

58 Robyn Eckersley, The Green State: Rethinking Democracy and Sovereignty (Cambridge, Mass.: MIT Press, 2004).

59 Examples include the polluter pays principle; the precautionary principle; the principle of sustainable development, which incorporates the principle of intra- and intergenerational equity; and the principle of “common but differentiated responsibilities,” which acknowledges the different capacities and abilities of developed and developing countries to respond to global environmental change and pursue sustainable development strategies.

60 This trustee relationship is adapted from Peter Sand, “Sovereignty Bounded,” p. 55.

61 Genocide involves the intentional and systematic killing of large numbers of people on the basis of their social, political, religious, or ethnic status, whereas crimes against humanity are defined as a range of acts (such as murder, extermination, enslavement, and torture) “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” See Articles 6 and 7 of the Rome Statute of the International Criminal Court.

62 The phrase “widespread, long-term and severe damage to the natural environment” is taken from Article 8(b)(iv) of the Rome Statute of the International Criminal Court, dealing with war crimes (in this case, environmental war crimes).

63 Eva M. Kornicker Uhlmann, “State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms,” Georgetown International Environmental Law Review 11 (1998), p. 120.

64 In this respect, the prohibitions approximate the status of jus cogens or erga omnes obligations. The definition of jus cogens in section 53 of the Vienna Convention is rather general, but it has been fleshed out by Eva M. Kornicker Uhlmann as requiring the satisfaction of the following four criteria: (1) The norm must transcend the individual interests of states and serve the entire community of states or “state community interests”; (2) it must have a foundation in morality; (3) the norm must be absolute or overriding; and (4) it must command the agreement of the vast majority of states. See Kornicker Uhlmann, “State Community Interests,” p. 104.

65 The remaining requirements are last resort, right intention, proportionality, proper authority, and reasonable hope of success. In the wake of the U.S.-led invasion of Iraq, we might add an assessment of the prospects for successful postintervention institution building.

66 Jennifer M. Welsh, “Taking Consequences Seriously: Objections to Humanitarian Intervention,” in Jennifer M. Welsh, ed., Humanitarian Intervention and International Relations (Oxford: Oxford University Press, 2004), p. 66.

67 Most multilateral and unilateral humanitarian interventions have been carried out against small, weak, or failed states. No such interventions have taken place in nuclear states or powerful and rich states, and the majority of states do not have the military capacity to act unilaterally. Smaller states do have the opportunity to influence intervention decisions, however, when they take a turn as a nonpermanent member on the Security Council.

68 Of course, these factors should always form part of the general pragmatic assessment as to whether military intervention is likely to make matters better or worse, all things considered.