June 16, 2022

Environmental, Natural Resources, & Energy Law Blog

Climate Justice Desserts: The UNGA is the Climate Justice Forum to Address the Prosecution of Heads of State for Climate Crime - Patrick Canning

 

International Justice out of Balance

A handful of states have gained incredible wealth and power while causing climate change. Climate change threatens to destroy civilization.[1] The impacts are and will be felt most by the poorer countries which have not contributed as much to causing it,[2] because they are unable to adapt, are in hotter or drier areas, or are less able to buy their way out of problems (like hunger).

The world has set a target to stay below 2 degrees of warming by the end of the century, preferably 1.5.[3] A failure to do so, and to hit 2 instead, will mean an estimated excess 150 million deaths in that time.[4] Our leaders have known about this for years, certainly since the stark warnings delivered by the IPCC in 2018. But they have not changed course. Is knowingly contributing to 150 million deaths not a crime?

Yet there is no viable international mechanism to prosecute heads of state for their climate-destroying actions. The ICC is unlikely or unable to prosecute the top historical emitters, even if inclined to do so.[5] For some, like the UK, France, and Germany, that is simply because of their influence or “realpolitik.”[6] For the top three emitters, the USA, Russia, and China, it is impossible, as they have not subjected themselves to ICC jurisdiction and have vetoes on the UN Security Council. Furthering the unfairness, the ICC may also be more likely to prosecute those less powerful and lower-emitting states, who are also largely non-white, based on historical patterns and structural design, as well as their being seen as “low hanging fruit.”[7] Also, the ICC is sometimes seen as elitist and colonial.[8]

This post is a “Part II” to my post last term. In that post I looked at the potential new crime of “ecocide,” and whether it would be in accord with principles of EJ for it to be prosecuted at the International Criminal Court (“ICC”).[9] I concluded:

If justice were the only concern, and the realities of global power were not, perhaps the most equitable solution would be a new tribunal similar to the International Criminal Tribunal for Yugoslavia, or that model, but brought and governed by the world’s poor, and with jurisdiction over the Western nations who have created the problem.

To be in keeping with basic principles of EJ, any international crimes or processes created to address climate change must recognize our structural differences and shared history. It must recognize the massive wealth created by and for the Western world in the course of creating the climate problem, the massive suffering of the world’s poor and people and nations of color as a result of it, and the social injustice of climate change. Most importantly it must be corrective - aimed at addressing that imbalance, not worsening it.

A key question which followed from that post was “if not the ICC, then where?” In this post I consider some possibilities and conclude that in fact the UNGA has the potential to meet the above terms.

Climate Justice and the climate divide

The wealth and power of those who created the climate crisis, accumulated at least in part through the burning of fossil fuels, played a significant role in the creation of the United Nations (UN), the UN Security Council (UNSC), and more recently the International Criminal Court (ICC).

In setting up this system of international law, and international criminal law (“ICL”) through the ICC, the most powerful states, those with vetoes on the UNSC, have effectively insulated themselves from ICL consequences. At the same time the least powerful, black African and Arab states, have been the focus of ICC prosecutions.

Professor Nigel South describes this as the “climate divide” and defines it as:

… one in which the conditions producing climate change are contributed to most overwhelmingly by rich consumer societies but which will impose the greatest costs and resultant miseries on the already poor and newly developing nations.[10]

Algonquin Elder Robert Lovelace described this history and relationship, colonialism, as:

… the process by which a group having exhausted its sustainability options dispossesses another group of its. Using seduction or force, a dominant group undermines the power of multiple others. This is the principle mechanism that separates much of humanity from the sacred relationships with the earth and has become normalized in the governance of nations.[11]

Seen in this view, allowing colonial nations to benefit further by escaping justice while innocent and marginalized bystanders are potentially prosecuted offends any notion of justice.

A key feature of environmental and climate justice is “we speak for ourselves.”[12] Environmental and climate justice communities and nations must be given space to do so. Professor Deborah McGregor describes Environmental Justice (EJ) as being;

…about power relationships among people and between people and various institutions of colonization. It concerns issues of cultural dominance, of environmental destruction, and of inequity in terms of how certain groups of people are impacted differently by environmental destruction from others, sometimes by design.[13]

Climate Justice (CJ) has been described as insisting “on a shift from a discourse on greenhouse gases and melting ice caps into a civil rights movement with the people and communities most vulnerable to climate impacts at its heart.”[14] Describing the imbalance caused by climate change, Indian scholar and activist Vandana Shiva said, “the climate crisis is at its roots a consequence of human beings having gone astray from the ecological path of living with justice and sustainability. It is a consequence of forgetting that we are earth citizens.“ She describes the resulting imbalance in the relationship between “the earth and her species” as “adharma.”[15]

As a global society so far out of balance as to be on the brink of self-destruction, we have to look at means of restoring balance. One means of doing that is to hold those who have caused it to account.

Climate change and global peace and security

Climate change not only threatens individuals, but also global peace and security.[16] Patricia Espinosa, executive secretary of the United Nations Framework Convention on Climate Change, said at the first-ever Middle East and North Africa (MENA) Climate Week on March 25, 2022, that:

Climate change is a destabilising phenomenon that can impact food security, water security, energy security and human security. The severity of impacts and potential for social disruption make climate change more than a security threat. Climate change is a grave threat to life as we know it.[17]

And:

The recent IPCC Sixth Assessment report clearly shows that all nations need to take the climate change threat more seriously. We are pushing our planetary boundaries at our own peril, and some of those boundaries are at a breaking point. It’s time for every person, government and business to make decisions that reflect and respect those boundaries.[18]

While UN Secretary-General António Guterres, said that climate change “has a multiplier effect and is an aggravating factor for instability, conflict and terrorism.”[19] With that background in mind, we will turn to the law and assessment of options.

ICL-Climate law as an evolving area

Climate law is a steeply evolving area, and this is just the beginning of thinking in this area. Professor Patrick Keenan noted that “[i]f even the relatively conservative estimates of the effects of climate change come true, there will be enough legal issues for a generation of lawyers and scholars to address.”[20]

This could also be said of international criminal law (ICL) as it relates to climate change. There is an entire generation of world leaders under whose watch the destruction of civilization has begun. Young people are out in the streets and in the courts, challenging their governments climate failures. When they take power - it is easy to imagine that they will be looking for accountability.

Some Options

With EJ and CJ focusing on institutions of colonization, inequity (by design), a civil rights movement with the people and communities most vulnerable to climate impacts at its heart,”[21] and seeking to rebalance, instead of further unbalance – any solution must be driven and supported by the world’s poor, people of colour, and Indigenous peoples.

Specialized and Regional Tribunals

Many of the specialized tribunals of recent history, such as the International Criminal Tribunal for Yugoslavia,[22] and Lebanon,[23] were created pursuant to UNSC authority. Clearly, this will not do here, as discussed elsewhere. That would lead to the same set of issues that arise with the ICC. The ICJ, the International Court of Justice, is not helpful here because it is for states only, not individuals.

German lawyer and judge Roda Verheyen has proposed a new tribunal to adjudicate claims against major carbon polluting states;[24] however, it is not clear that any such criminal tribunal has been proposed thus far. As noted above, this body of law is in its infancy.

Regional tribunals are also a relatively new and evolving phenomenon. Professor Miles Jackson wrote, in imagining alternative international criminal tribunals “[t]hese may be continent wide, as with the African Court, or multilateral, or even bilateral, where two states establish a criminal tribunal to prosecute crimes in a specific conflict.” [25]

While it was previously accepted that the ICC could not assert jurisdiction over nationals of states that had not acceded to the jurisdiction of the ICC, and had a veto on the UNSC, the world is currently in the midst of a discussion about whether Vladimir Putin, the Russian president, could be prosecuted abroad for the crime of aggression and war crimes for the invasion of Ukraine.[26] The ICC is proceeding with an investigation, although the basis of its jurisdiction is uncertain.[27]

Another option could be a subject matter tribunal, although that would essentially be the same as the next option – a new treaty.

A New Treaty of the Willing?

Another option could be for the Beyond Oil and Gas Alliance,[28] or any group of states taking meaningful action on climate change, to form a new treaty, whereby they grant themselves “universal jurisdiction” over all accused climate criminals. While they could certainly do so, unless they had enough members to say their assertion of jurisdiction was jus cogens – it would be globally divisive to say the least.

Role of the    UN General Assembly – Uniting for Peace

The UN General Assembly (UNGA) is arguably the most equitable forum in the world, as almost all states are members, and it follows the one-member-one-vote principle. The problem is that the current perception seems to be that the UNGA has no power to create a forum with jurisdiction over all states, including those with vetoes on the UNSC.

The UNGA can exercise its power for peace where the UNSC fails to act on critical matters. This was done in regard to the Korean conflict in 1950 when the former USSR blocked all resolutions that would lead to action. In response to this inability to act the UNGA passed Resolution 377 (V), on “uniting for peace” which stated that “where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly shall seize itself of the matter.”[29]

Resolution 377 (V), on “Uniting for Peace” opened with a reminder of the two main purposes of the United Nations, “[t]o maintain international peace and security,” and “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”[30] In doing so the UNGA grounded this action in article one of the UN Charter.[31]

These purposes fit precisely the challenge of climate change - the UNSC has effectively blocked prosecution of the veto-holding nations heads of state through the design of the ICC, both regarding the USA / Russia, and China, which have not made themselves subject to ICC jurisdiction, and the UK and France, which have, but will likely never be prosecuted because the ICC would defer to the state due to its “gap-filling” jurisdiction where it was only intended to prosecute where the home state is unwilling or unable to do so.[32]

The preamble of Resolution 377 (V) continues to repeat the UNSC’s failure, and then states:

Recognizing in particular that such failure does not deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter in regard to the maintenance of international peace and security,[33]

The UNGA then resolved that:

… if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.[34]

While this was clearly made in the context of war, “international peace and security” could easily be argued to apply to climate change as well. The failure of the UNSC to take action by prosecuting the heads of state who have caused climate change can be addressed by the UNGA.

Conclusion

If the UN has evolved into a toothless entity, where the UNSC makes most of the meaningful decisions, including convening courts to resolve matters of international peace and security, it is not because it was designed that way – it wasn’t. The UNSC is not the brain of the UN, it is simply a hand. In its original conception and early actions the UNGA had backstop authority where the UNSC failed to act.

The biggest emitters have vetoes on the UNSC, so the world should assume it will not convene a criminal tribunal to hold themselves to account. The UNGA is a one-nation-one-vote system, with no vetoes, and so is more fair and in keeping with EJ and CJ. In the face of a lack of action by the UNSC the world can act through the UNGA to create an international climate crime tribunal, or take other steps, as guided by the majority votes of the poor and post-colonial nations and peoples of the Earth.


References

[1] David Spratt & Ian Dunlop, MAY 2019, “Existential climate-related security risk: A scenario approach,” BT Policy Paper, Breakthrough - National Centre for Climate Restoration Melbourne, Australia, online: https://docs.wixstatic.com/ugd/148cb0_b2c0c79dc4344b279bcf2365336ff23b.pdf; Enno Schröder & Servaas Storm (2020) Economic Growth and Carbon Emissions: The Road to “Hothouse Earth” is Paved with Good Intentions, International Journal of Political Economy, 49:2, 153-173, DOI: 10.1080/08911916.2020.1778866, at 168; Will Steffen, Johan Rockström, Katherine Richardson, Timothy M. Lenton, Carl Folke, Diana Liverman, Colin P. Summerhayes, Anthony D. Barnosky, Sarah E. Cornell, Michel Crucifix, Jonathan F. Donges, Ingo Fetzer, Steven J. Lade, Marten Scheffer, Ricarda Winkelmann, and Hans Joachim Schellnhuber, Trajectories of the Earth System in the Anthropocene,

[2] Rob White, (2018). “Ecocide and the Carbon Crimes of the Powerful University of Tasmania Law Review, 37(2), 95-115.

[3] United Nations Climate Change, The Paris Agreement, online: https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement

[4] David Wallace-Wells, The Uninhabitable Earth, Crown Publishing, New York, 2019, at 28.

[5] Patrick Canning, January 13, 2022, Climate Crime at the ICC - Environmental Justice through the Looking Glass, Lewis & Clark Law School Environmental, Natural Resources, & Energy Law Blog, https://law.lclark.edu/live/blogs/177-climate-crime-at-the-icc-environmental-justice.

[6] Emily Rowe, Flux: International Relations Review Vol. 11 No. 2 (2021) - Articles
The ICC-African Relationship: More Complex Than a Simplistic Dichotomy, p. 57.

[7] Frazer, J. (2015, Jul 24). International courts and the new paternalism; African leaders are the targets because ambitious jurists consider them to be ‘low-hanging fruit.’ Wall Street Journal (Online): https://library.lcproxy.org/login?url=https://www.proquest.com/newspapers/international-courts-new-paternalism-african/docview/1698490328/se-2?accountid=25203.

[8] Helyeh Doutaghi and Jay Ramasubramanyam, 15 April, 2019, “By not investigating the U.S. for war crimes, the International Criminal Court shows colonialism still thrives in international law,” Carleton Newsroom, online: https://newsroom.carleton.ca/story/icc-colonialism-thrives/

[9] Climate Crime at the ICC - Environmental Justice through the Looking Glass - Patrick Canning, online: https://law.lclark.edu/live/blogs/177-climate-crime-at-the-icc-environmental-justice.

[10] Nigel South, ‘Climate Change, Environmental (In)security, Conflict and Crime’ in Stephen Farrell, Tawhida Ahmed and Duncan French (eds), Criminological and Legal Consequences of Climate Change (Hart Publishing, 2012 109, 109.

[11] Robert Lovelace, Notes From Prison, in Speaking for Ourselves: Environmental Justice in Canada, UBC Press, 2009, p. ix.

[12] Villa, C. Ahmad, N. Bratspies, R., Lin, R., Rechtschaffen, C., Gauna, E., O’Neill, C. Environmental Justice: Law, Policy and Regulation, 3rd Edition, Carolina Academic Press, LLC, Durham, North Carolina (2020), p. 25.

[13] Deborah McGregor, Honouring Our Relations: An Anishnaabe Perspective on Environmental Justice, in Speaking for Ourselves: Environmental Justice in Canada, UBC Press, 2009, p. 27.

[14] Mary Robinson, quoted in UN, “UN Sustainable development goals: Climate Justice,” online: https://www.un.org/sustainabledevelopment/blog/2019/05/climate-justice/.

[15] Vandana Shiva, Soil Not Oil: Environmental Justice in an Age of Climate Crisis (South End Press, 2008) 130.

[16] UN Security Council, 23 February, 2021, Press Release, SC/14445, “Climate Change ‘Biggest Threat Modern Humans Have Ever Faced’, World-Renowned Naturalist Tells Security Council, Calls for Greater Global Cooperation” online: https://www.un.org/press/en/2021/sc14445.doc.htm.

[17]Robert Kennedy, 26 March 2022, ‘Grave threat to life’: UN climate chief issues warning for MENA, Al Jazeera, online: https://www.aljazeera.com/news/2022/3/26/climate-change-is-a-grave-threat-to-life-un-climate-chief.

[18] Ibid.

[19] Ibid.

[20] Patrick J. Keenan International Criminal Law and Climate Change, 37 B.U. Int’l L.J. 89.

[21] Mary Robinson, supra note 14.

[22] International Criminal Tribunal for Yugoslavia, online: https://www.icty.org/en/about.

[23] Special Tribunal for Lebanon, online: https://www.stl-tsl.org/en/about-the-stl/oversight.

[24] Roda Verheyen, Climate Change Damage & International Law: Prevention Duties & State Responsibility (Brill: Martinus Nijhoff, 2005) at ch. V1.

[25] Jackson, Miles, Regional Complementarity: The Rome Statute and Public International Law (July 3, 2016). (2016) 14(5) Journal of International Criminal Justice 1061, Available at SSRN: https://ssrn.com/abstract=2774338 or http://dx.doi.org/10.2139/ssrn.2774338

[26]Zachary B. Wolf, March 10, 2022, “Everything you need to know about war crimes and how Putin could be prosecuted,” CNN, online; https://www.cnn.com/2022/03/03/politics/putin-war-crimes-russia-ukraine-us-what-matters/index.html; Zoha SiddiquiNathaniel LiuDaniel Posthumus, and Kelebogile Zvobgo, March 4, 2022, Could Putin Actually Face Accountability at the ICC? Foreign Policy, online: https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/

[27]Jaime LopezBrady Worthington, March 10, 2022, The ICC Investigates the Situation in Ukraine: Jurisdiction and Potential Implications, Lawfare blog, online: https://www.lawfareblog.com/icc-investigates-situation-ukraine-jurisdiction-and-potential-implications

[28] Beyond Oil and Gas Alliance, online: https://beyondoilandgasalliance.com/.

[29]Christian Tomuschat, Uniting for Peace, General Assembly resolution 377 (V), New York, 3 November 1950, Introductory Note, online: https://legal.un.org/avl/ha/ufp/ufp.html

[30] General Assembly-Fifth Session, General Assembly resolution 377 (V), online: https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/377(V). While the preamble is not binding, the resolution repeats similar wording, seen below.

[31] Charter of the United Nations and Statute of the International Court of Justice, Art. 1, online: Charter of the United Nations.pdf (undp.org).

[32] Rome Statute of the International Criminal Court art. 66 ¶ 3, July 17, 1998, 2187 U.N.T.S. 90., Article 17; Christa-Gaye Kerr, Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined, 41 MICH. J. INT’L L. 195 (2020), p. 195.

[33] Ibid.

[34] Ibid.