Climate, Conflict & International Law in the Middle East

ASIL Proceedings, Vol 114, Annual 2020 (CUP forthcoming 2021) Panel on Transitional Justice in a Hostile Climate Panel Description: Climate change is the greatest challenge of our time and is already testing existing legal and political theories and institutions and threatening individual and collective security. Those threats, however, are distributed unevenly, raising questions about the possibilities for climate justice as well as prevention, adaptation, and mitigation. Marginalized communities already threatened by structural vulnerabilities and disaster are on the frontlines of the climate crisis. As a field of transnational and international law, transitional justice has grappled with the often unequal consequences of conflict, disaster, and repression as well as with accountability for those effects. It offers a unique lens through which to examine the issues of global justice, intergenerational ethics, distributive justice, moral, political and legal responsibility that arise in an era of acute climate change. This roundtable discussion will examine the synergies between transitional justice theory and practice and climate change mitigation, adaptation, and justice. In doing so, it will explore the limits and promises of international law to manage and address contemporary border-crossing issues of justice and violence. It will interrogate the promise of international law to address the emerging threat of climate change and assess international law’s ability to respond to evolving needs. Climate, Conflict and International Law in the Middle East and Beyond Usha Natarajan  The last time there was this much carbon dioxide in our atmosphere was three and a half million years ago.1 While our planetary history evidences cyclical climatic shifts, this time injustice is the cause. The lifestyles of the wealthy few are sustained not only by increasing economic inequality but the systemic collapse of ecosystems.2 The richest twenty per cent consumes eighty per cent of the world’s natural resources and generates over ninety percent of its pollution and waste.3 For most people, the poorer eighty percent, their grossly unequal access to natural resources is compounded by also bearing the brunt of the pollution generated by the rich.4 Climate change is caused by increased greenhouse gases in the atmosphere from activities such as burning fossil fuels and changing land use patterns. The United Kingdom with a population of 66 million emits as much carbon dioxide as Nigeria, Pakistan, Morocco and Peru with a combined population of 475 million. The 39 million people in California emit more than the 880 million people living in the 50 least developed countries. And two states in the United States, Texas  Edward Said Fellow, Columbia University; Global South Visiting Scholar, University of British Columbia; Senior Fellow, Melbourne Law School; usha.natarajan.khoday@gmail.com. 1 M. Willeit el al., Mid-Pleistocene Transition in Glacial Cycles Explained by Declining CO and Regolith Removal, 5(4) SCIENCE 2 ADVANCES eaav7337 (2019). 2 M. Lawson et al., Public Good or Private Wealth (Oxfam, Oxford, 2019); IPBES, Global Assessment Report on Biodiversity and Ecosystem Services (2019) at https://ipbes.net/. 3 See UNDP, HUMAN DEVELOPMENT REPORT 2019; HUMAN DEVELOPMENT REPORT 2007-8; HUMAN DEVELOPMENT REPORT 1998. 4 U. Natarajan, Environmental Justice and the Global South, in CAMBRIDGE HANDBOOK OF ENVIRONMENTAL JUSTICE AND SUSTAINABLE DEVELOPMENT (S.A. Atapattu, C.G. Gonzalez and S.L. Seck eds., forthcoming 2020). 2 and New Jersey with a combined population of 37 million, emit as much carbon dioxide as the 1 billion people in sub-Saharan Africa.5 Disparities on such scale are not happenstance, they are systemic. Globalized capitalism ensures the profligately wealthy not only stay rich but get richer.6 As the impact of climate change is borne by others, there is no immediate incentive for the rich to change their behavior.7 The poor contribute very little to climate change but are on the frontlines of environmental harm because of their vulnerable geographic locations, lack of resources and regulatory capacity to protect themselves, ongoing extraction of their natural resources and labor to fuel an unequal global economy, and a systemic transfer of pollution from the rich to the poor. 8 Such extreme injustice perpetrated on a global scale has led people to look to international law for help.9 Climate change intersects with the concerns of transitional justice scholars not only because climate change causes instability, conflict, and disasters, but because the inequities that produce climate change resonate with the concerns of transitional justice scholars with the unequal impact of crises and the lack of accountability for them. As an international lawyer working in the Middle East, I turn to the situations we face to illustrate the interlinkages between climate justice and transitional justice, and the role of international law therein. The Middle East is a region unequally affected by climate change. The average temperature rise is higher than the global average.10 It is already the most water scarce and most food-import dependent region in the world.11 The drought cycle over the last decade is the worst in a thousand years.12 Droughts cause, among other things, fluctuations in global food prices including staples, leaving Middle East families particularly vulnerable as they spend a higher proportion of their household income on food than anywhere else in the world.13 Climate change does not play out on a clean slate but in a region and world already riven by massive inequalities of power and wealth between and within states.14 Across the region, there is increasing instability and armed conflict, in Iraq, Libya, Palestine, Somalia, South Sudan, Sudan, Syria, and Yemen. As a result, for many decades the region has hosted the highest number of internally and internationally displaced peoples in the world.15 Climate change, itself a product of inequity, exacerbates existing challenges 5 See World Resources Institute, GLOBAL HISTORICAL EMISSIONS at https://www.wri.org/blog/2020/02/greenhouse-gas-emissions-by-country-sector; Choose Energy, HOW MUCH CARBON DIOXIDE DOES YOUR STATE PRODUCE? at https://www.chooseenergy.com/data-center/carbondioxide-by-state/; UNDP, HUMAN DEVELOPMENT REPORT 2019. 6 D. Hardoon, AN ECONOMY FOR THE 99% (2017). 7 U. Natarajan, Climate Justice, in ROUTLEDGE HANDBOOK OF LAW & SOCIETY (K. Clarke, E. Darian-Smith, P. Kotiswaran & M. Valverde eds., forthcoming 2020). 8 Natarajan, supra note 4. 9 U. Natarajan & J. Dehm, Where is the Environment? Locating Nature in International Law, 3 TWAILR REFLECTIONS (2019) at https://twailr.com/where-is-the-environment-locating-nature-in-international-law/. 10 Intergovernmental Panel on Climate Change, IPCC FIFTH ASSESSMENT REPORT (2014). 11 UNDP Regional Hub for Arab States, TRANSFORMATION TOWARDS SUSTAINABLE AND RESILIENT SOCIETIES – ECOSYSTEM RESILIENCE FOR SDG ACHIEVEMENT AND HUMAN SECURITY IN THE ARAB REGION (2018); K. Khoday, Climate Change, Peace and Security in the Middle East, MEDIUM (Oct. 31, 2019) at https://medium.com/@UNDPArabStates/climate-change-peace-and-security-f5a290b6d28c. 12 B. Cook et al., Spatiotemporal drought variability in the Mediterranean over the last 900 years, 121(5) JRU ATMOSPHERES 2060 (2016). 13 FAO Regional Office, NEAR EAST AND NORTH AFRICA – REGIONAL OVERVIEW OF FOOD SECURITY AND NUTRITION (2019). 14 See ARAB HUMAN DEVELOPMENT REPORTS at http://www.arab-hdr.org/; Hardoon, supra note 6. 15 UNHCR, GLOBAL TRENDS 2019. 3 and creates new ones in a manner that may not always be easily separable, identifiable, or quantifiable in terms of allocating causality.16 By way of illustration, let us take the example of a Syrian farming family that may gradually lose their livelihood due to longer and more protracted cyclical droughts due to climate change. Perhaps the farmer may have stood a better chance of adjusting to the changing climate if the government did not enable scarce water to be commandeered by wealthy elites. Or if the farmer were not already mired in debt and precarity by a global trading system that controlled their access to seeds, pesticides, fertilizers, and equipment. To survive, the rural family moves to the nearest urban center. Millions of families did this across the Middle East over the last decade, including in Syria, Somalia, Darfur, and the Nile Delta, and the process of urbanization continues at a rapid rate.17 These mass displacements exacerbated existing instability and governance failures and ultimately contributed to longstanding conflict in Syria, Somalia, and Sudan. International intervention has fueled such instability and conflict through arms, funds, and proxy wars, including in Libya, Palestine and Yemen. Tens of millions are displaced internally and into neighboring countries. Those who can get there seek refuge in faraway rich regions. This example illustrates the links between local dysfunctions and several international law regimes. International climate change laws that have overseen the highest greenhouse gas emissions in human history,18 international economic and trade laws that erode food sovereignty and destroy farm livelihoods,19 laws of war that cannot minimize massive numbers of civilian death and injury,20 and migration and asylum laws that structure population movement in inhumane and disorderly ways,21 all of which proliferate unnecessary suffering across the region. Globally, international law helps structure what is increasingly described as climate apartheid.22 It allows the wealthy few causing climate change to insulate themselves from harm, leaving the poor masses on the frontlines. Responsibility and accountability – concepts at the heart of transitional justice and climate justice – require that the rich change their behavior. Adequate remedies entail that the rich cease economic exploitation and greenhouse gas emissions. But international law cannot produce such an outcome because it is based on extracting economic value from people and planet.23 It is the product of European empire, genocide, slavery, and industry; and its legacy is climate change.24 International laws and institutions helped universalize 16 U. Natarajan, Measuring the Immeasurable: Nature, Loss and Damage, in RESEARCH HANDBOOK ON LOSS AND DAMAGE FROM CLIMATE CHANGE (M. Doelle and S. Seck eds., forthcoming 2020). 17 UNDP Regional Hub for Arab States, ARAB CITIES RESILIENCE REPORT (2018). 18 U. Natarajan & K. Khoday, Climate Change, in TIPPING POINTS IN INTERNATIONAL LAW (J. d’Aspremont & J. Haskell eds., forthcoming 2021). 19 M. Fakhri, Third World Sovereignty, Indigenous Sovereignty, and Food Sovereignty: Living with Sovereignty despite the Map, 9:3 TRANSNATIONAL LEGAL THEORY 218 (2018). 20 C. Wilke, Beyond Law and Numbers: Civilian Suffering and the ICC’s Engagement in Afghanistan, 23 TWAILR Reflections (2020) at https://twailr.com/beyond-law-and-numbers-civilian-suffering-and-the-iccs-engagement-withafghanistan/#easy-footnote-bottom-37-2565; A. Anghie & B.S. Chimni, Third World Approaches to International Law and Individual Responsibility in Internal Conflicts, 2 CHINESE JOURNAL OF INTERNATIONAL LAW 77 (2003). 21 U. Natarajan, Forced Displacement in Syria or How to Institutionalize Regimes of Suffering, 2(6) ESIL REFLECTIONS (2013) at https://esil-sedi.eu/fr/forced-displacements-from-syria-or-how-to-institutionalize-regimes-of-suffering/. 22 P. Alston, Climate Change and Poverty: Report of the Special Rapporteur on Extreme Poverty and Human Rights, UN Doc A/HRC/41/39 (June 25, 2019); B. Ki-moon & P. Verkooijen, Time is Running Out to Stop the Forces Driving a New Climate Apartheid, DEVEX OPINION (Oct 18, 2019) at https://www.devex.com/news/opinion-time-isrunning-out-to-stop-the-forces-driving-a-new-climate-apartheid-95841. 23 I. Porras, Appropriating Nature, 27(3) LEIDEN JOURNAL OF INTERNATIONAL LAW 641 (2014); U. Natarajan & K. Khoday, Locating Nature: Making and Unmaking International Law, 27 LEIDEN JOURNAL OF INTERNATIONAL LAW 573 (2014). 24 Natarajan & Khoday, supra note 23. 4 and normalize unsustainable and inequitable development pathways and erased sustainable alternatives.25 Today, adequate responses to climate change demand more than financial compensation, technological transfer, and other schemes that allow the rich to pay to keep emitting, and to profit from destruction via the so-called green economy.26 Climate change exacerbates existing vectors of injustice but more than that it reveals shaky disciplinary foundations built on false assumptions about nature. International law has not only destroyed nature but has done so in a manner that makes sustainable alternatives difficult to imagine and articulate.27 We need to resurrect more accurate and healthy understandings of the environment and law’s relationship to it. More than ever, international law would benefit from becoming genuinely international, ceding space to multiple worldviews so that more sustainable and equitable ways of living together can emerge.28 Transitional justice scholars share with climate justice scholars a commitment to accountability and responsibility. Methodologically, both fields are deeply attentive to knowledge production, especially narratives – what stories are told by whom, when and why – and both fields are dedicated to telling better stories to address inter and intragenerational equity concerns. Climate change pushes us to reevaluate the legal concepts we usually turn to for justice – loss, damage, restitution, reparations, criminal responsibility. Resonating with similar insights within transitional justice, climate change reveals the limits of traditional legal remedies. International lawyers assume we can infinitely extend our discipline to encompass any issue, instead we systemically create the problems we try to solve. Lawyers try to extend existing legal constructs such as loss and damage to climate change. Similarly, economists respond to the challenges of climate change with market mechanisms and ‘green’ capitalism. And scientists with technological innovation. But it may not be possible to adequately respond to the problem of anthropogenic climate change by relying on the same ideas that caused it. Accountability and responsibility in the context of climate change demand an alternative to globalized capitalism and a dismantling of the legal structures that maintain it.29 Climate change is occurring amid other massive ecological transformations. For instance, we are amid the biggest disruption to Earth’s nitrogen cycle in two and a half billion years,30 and a mass extinction of species for the first time in sixty-six million years.31 Changes on a such a scale unmake the foundations of disciplines that assume the stability of natural systems, including many in the social sciences such as economics and law. For international law, responding adequately to climate change entails creating sustainable alternatives to longstanding disciplinary dogma that helps to destroy nature. What would sovereignty, title to territory, jurisdiction, free commerce, and our other disciplinary tenets look like if we remade them to mitigate climate change instead of fomenting it? Perhaps a question of particular interest to transitional justice scholars is, what would human rights look like? Human rights with its focus on the individual could be helpful to the extent that it points to the starkly unequal ecological footprints mentioned at the start of this discussion. Human rights 25 LOCATING NATURE: MAKING AND UNMAKING INTERNATIONAL LAW (U. Natarajan & J. Dehm eds., forthcoming 2021). 26 Id. 27 Natarajan & Dehm, supra note 9. 28 Id. For a new law review dedicated to these aims, see L. Betancur-Restrepo et al., Introducing the TWAIL Review: TWAILR, TWAIL REVIEW (Aug. 30, 2019) at https://twailr.com/introducing-the-twail-review-twailr/. 29 Natarajan, Measuring the Immeasurable (2020). 30 W. Steffen et al., Planetary Boundaries: Guiding Human Development on a Changing Planet, 347(6223) SCIENCE 1259855 (2015). 31 T. Pievani, The Sixth Mass Extinction: Anthropocene and the Human Impact on Biodiversity, 25(1) Rendiconti Lincei 85 (2014). 5 could demand convergence between the ecological footprints of the poor and the rich so everyone can enjoy their full panoply of rights. This comes down to a sort-of equal right to consume and pollute. However, after over seven decades, human rights are yet to deliver on any such redistributive potential. More problematically, understanding the world through human rights naturalizes an understanding of ourselves as distinct and separate from our environment and each other, an atomistic individual separate from all that keeps it alive. It is an idea both scientifically flawed and ecologically destructive.32 Climate change has been a long time in the making, its origins lie in the industrial revolution and the colonialism, genocide, and slavery that enabled it. It is not an emergency that we can react to with specialized laws, extreme measures, and extrabudgetary resources. It is the inevitable consequence of a legal system that protects the rich and powerful from the harmful consequences of their actions. It is humbling and reveals our disciplinary hubris in attempting to govern the deep sea, outer space, species, genes, knowledge, communications, atmosphere, and of course ‘the environment’ (which is to say, everything). International lawyers were wrong in thinking we could construct ‘the environment’ and then govern it. International law must overcome the confines of western modernity and embrace other narratives about our relationship with the natural world that more accurately estimate human ability to regulate it. Beyond protection and remedy, causation and responsibility, loss and damage, liability and insurance, we need to make disciplinary space for the different, uncomfortable, unknown, and unknowable.33 Transitional justice is helpful to climate justice scholars not only because it demands restitution when injustice occurs, but because it demands truth. Restitution requires the capacity to tell the truth. It entails legal systems that do not obfuscate facts, and legal discourse that does not render mass suffering unspeakable. The rich rob the poor of what they are incapable of reinstating and the poor learn to live with irreparable loss. Even if law one day brings recompense for the injustices of colonialism, genocide, slavery, and climate change, it will be partial, which does not render compensation unnecessary. Mbembe reminds us that to compensate does not mean erasing the wrong; it does not erase the need to remind, remember, and honor the truth.34 And Appiah tells us that, at its heart, restitution is about offering to repair a relationship.35 This means lifting up and listening to those systemically silenced within international law due to their species, gender, class, culture, race, sexuality, and various other vectors of injustice. Climate change reminds us that truth is not only vital to law, it is a condition for the survival of our world. ~ U. Natarajan, Human Rights – Help or Hindrance to Combatting Climate Change?, OPEN DEMOCRACY (Jan. 9, 2015) at https://www.opendemocracy.net/en/openglobalrights-openpage-blog/human-rights-help-or-hindrance-tocombatting-climate-change/. 33 Natarajan & Dehm, supra note 9. 34 Thoughts on the Planetary: An interview with Achille Mbembe, NEW FRAME, Sept. 5, 2019 at https://www.newframe.com/thoughts-on-the-planetary-an-interview-with-achillembembe/?fbclid=IwAR2eb_uEXuoTcyqXv5dXliP04a1ebt1Wx3D_8SRt_CwVJSZHsnIsmgQwqgI. 35 K.A. Appiah, Comprendre les reparations: Une réflexion préliminaire, 173-174 CAHIERS D'ÉTUDES AFRICAINES 25(2004). 32