The impact of climate change in the Arctic has drawn considerable global attention. As numerous scientific studies have shown, climate in the region is an indicator for climate change worldwide. Moreover, climate change in the Arctic has been recognized for some time. Average temperature has risen twice as fast in the Arctic as in the rest of the world. Of particular interest is the rapidly receding and thinning Arctic Ocean sea ice, which demonstrates how quickly climate change progresses—the year 2012 marked the lowest summer sea ice since satellite measurements began in 1979. The rise in temperature will have overwhelming repercussions for the region’s ecosystems and render its economic potential more accessible. Sea ice retreat and other changes have brought about opportunities for economic development and, in turn, have prompted numerous studies on how the region’s oil and other natural resources could be exploited, its tourism potential increased, and its navigational waterways utilized.
This Insight will first briefly review the work of the Arctic Council and examine how this inter-governmental forum has tried to respond to climate change challenges in the region by producing scientific assessments and soft law guidance. Scientific assessments have changed the way the region is perceived, from the frozen desert of the past to the rapidly transforming space of today. This altered perspective has put pressure on the Council to transform from a decision-shaping to decision-making body. This is evidenced by the Council’s current push for legally binding agreements between the eight Arctic states: Canada, Denmark, Finland, Iceland, Norway, Sweden, the Russian Federation, and the United States. Finally, a few conclusions are provided in terms of what role international law could and should play in responding to climate change in the Arctic.
International governance in the Arctic contrasts sharply with that of Antarctica. In the Antarctic, the sovereignty question has been “frozen” by the 1959 Antarctic Treaty, meaning that no territorial sovereigns exist on the continent. In the Arctic, however, all land areas are firmly under the sovereignty of Arctic states. Most Arctic waters now fall within their maritime jurisdictions, although the core of the Arctic Ocean remains a part of the high seas.
From the viewpoint of governance, the Arctic is very complex. The three federal states—the Russian Federation, the United States and Canada—exercise certain powers at the federal level and some powers at sub-unit levels (e.g., in Alaska (U.S.) or Nunavut (Canada)). Even though the European Union (EU) is not a state under international law, it is functionally very close to being a federal state. Of the Arctic states, Finland, Sweden, and Denmark are EU member states. The Kingdom of Denmark comprises three parts, including the Arctic Faroe Islands and Greenland; the native Inuit population of Greenland recently gained a Self-Rule status (in contrast to its old Home-Rule status), with concomitant enhanced autonomy and a future possibility to secede from Denmark.
Thus, when the time was ripe to commence Arctic-wide cooperation between the Arctic states after the end of the Cold War, an action program rather than an international treaty was adopted. The result is the 1991 Arctic Environmental Protection Strategy (“AEPS”). The Arctic Council was established in 1996 in Ottawa, Canada by means of a declaration. Participants in the Council are: member states, permanent participants, and observers. Uniquely in inter-governmental cooperation, regional indigenous peoples’ organizations have the status of permanent participants. Member states must fully consult permanent participants before a consensus is agreed upon; this greatly enhances the indigenous peoples’ potential to influence decision-making in various bodies within the Arctic Council.
Until recently, Arctic cooperation has functioned for over fifteen years in a fairly consistent mode of operation. Until 2011, the main work was conducted by the six working groups, focused on environmental protection and sustainable development. Senior Arctic officials from each Arctic state coordinated various activities within the Council between biannual ministerial meetings and annual deputy ministers’ meetings. But, in response to alarming climate change, the Council has recently strengthened the way it functions. In May 2011, the ministerial meeting decided to establish a permanent secretariat and adopted the first ever legally binding instrument: the Search and Rescue (“SAR”) agreement, described below.
Responding to Climate Change in the Arctic
During the period the U.S. held the chairmanship of the Council, from 1998 to 2000, the Arctic Council and the International Arctic Science Committee (IASC) commenced work on the Arctic Climate Impact Assessment (“ACIA”), and their findings were released in a publicly accessible format in 2004. Even though a 2001 report by the Intergovernmental Panel on Climate Change (“IPCC”) had already noted that warming is more intense in the Arctic, the Arctic Council-sponsored ACIA report established the Arctic as an early warning region for climate change observation. In addition to revealing serious impacts on the environment, its ecosystems and local communities, the ACIA led to important changes in the way the Arctic is perceived. While the AEPS still conveyed an image of an inaccessible, inhospitable, frozen desert, the ACIA findings demonstrated that the Arctic is a region undergoing dramatic transformation. The public view developed from an understanding of the Arctic as being naturally guarded from human activity to an image of the region as dynamic and rich with economic potential, and therefore requiring stricter governance measures. The ACIA was followed by other key Council assessments on issues that included oil and gas activities and increased shipping in the region.
The scientific role of the Council has been of importance in two respects. First, because many scientists who were part of the ACIA are also contributors to Intergovernmental Panel on Climate Change (“IPCC”) reports, their research has played a big part in our understanding of causes and effects of climate change and ACIA data has been directly used by the fourth IPCC assessment (released in 2007). More importantly, the awareness-raising function of Council-sponsored assessments has influenced governance at different jurisdictional levels in the Arctic as governments commence climate change adaptation planning in the region.
Given the enormity of challenges posed by climate change in the Arctic, the Arctic Council has gradually started to promote legal responses, rather than its traditional soft-law regulation through guidelines, best practices, and manuals. These measures serve their purpose in some policy areas, especially since the region’s indigenous peoples’ organizations can participate in their drafting. Some of the soft-law guidance has likely made its way into practice, although this is often difficult to verify, given that the Council does not review how its soft-law guidance is being followed. At least two cases indicate how soft-law regulation is limited, particularly where member states have viewed guidance as an intrusion upon their sovereignty. This was the case with the process under the Conservation of the Arctic Flora and Fauna Working Group to establish and monitor the Circumpolar Protected Area Network (“CPAN”), and also in regard to the Environmental Impact Assessment (“EIA”) Guidelines. Both normative processes have gradually faded away. CPAN was largely replaced by the Convention on Biological Diversity’s Programme of Work on Protected Areas, and the EIA Guidelines were gradually forgotten.
Given the limitations of soft law, the Arctic Council has started to sponsor legal solutions to counter challenges caused by climate change, particularly in the case of sea ice retreat. Partly as a result of another major Council assessment—the 2009 Arctic Marine Shipping Assessment (AMSA)—the Council urged its members to act in concert to come up with more comprehensive, stringent, and mandatory rules on shipping in extreme polar conditions. The legal work to convert the non-binding 2009 Polar Code into mandatory measures is now in progress under the aegis of the International Maritime Organization ("IMO").
The Arctic Council has been able to catalyze the making of international treaties between the eight Arctic states in policy areas of great importance. These include agreements to enhance human and environmental security in a region where there is only a scarce infrastructure for responding to emergencies. The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (“SAR”) was signed during the May 2011 Council ministerial meeting. The agreement is meant to strengthen search and rescue coordination and cooperation efforts in the Arctic by allocating responsibilities to each Arctic state in its own jurisdiction and by establishing procedures for states to cooperate in cases of emergency. There is also an ongoing process to conclude an agreement on marine oil pollution preparedness and response for the Arctic, which is scheduled to be signed during the May 2013 ministerial meeting. This agreement will likely apply not only in the Arctic Ocean waters but also in the Baltic Sea (Gulf of Bothnia), and may also have a few legally non-binding appendices (e.g., a manual on emergency response). Both treaties are firmly anchored in broader agreements already in existence, such as the 1979 International Convention on Maritime Search and Rescue, the 1944 Convention on International Civil Aviation, and the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation.
The Role of International Law
International law can potentially play many roles in securing better regional responses to climate change. One of these roles has recently been used by the Arctic Council as it began responding to challenges relating to oil spillage and other emergencies in the Arctic via international treaties. The Council’s move to use treaties capable of coordinating activities in a more reliable way is only natural, given that regulation involves proactive responses from Arctic states in their respective territories in preparation for risks posed by new economic activities enabled by the effects of climate change. Even if the SAR and the possible oil spills agreement have been negotiated under the auspices of the Council, they will function autonomously since the parties to such agreements will have separate meetings. It also remains to be seen what roles the permanent secretariat and Council working groups will assume over time when these and other agreements are created and implemented.
Frequently states use international treaties to lay foundations for regional cooperation. Legal instruments, such as international treaties or inter-governmental organizations, are often seen as necessary foundations for long-term, committed cooperation between states. An overarching international treaty has been suggested by various actors—most recently by the Arctic Parliamentarians in their September 2012 annual meeting—to govern the Arctic. Arctic states have until now rejected this approach, instead firmly endorsing the Arctic Council as the predominant forum for international cooperation. An overarching Arctic treaty would most likely be able to offer a better platform for integrating the currently fragmented policy and legal activities within the Arctic.
Some argue against a formalization of the Council, given that the region’s indigenous peoples’ organizations can participate in its work as permanent participants—a status which they enjoy within no other inter-governmental cooperation procedure, being normally dubbed as non-governmental organizations. In a similar vein, the Barents international cooperation has been able to involve the European Commission, national governments, county levels of government, and regional indigenous peoples in its work.
Although the Arctic Council is not a treaty-based organization, it seems to have gradually institutionalized itself to the extent that it can act as a foundation for permanent cooperation between various regional stakeholders. Moreover, the Council has been able to combine its scientific work with soft and hard law mechanisms, a mixture that functions creatively in responding to multi-faceted challenges posed by climate change to the region.
Timo Koivurova, an ASIL member and co-Chair of the ASIL International Environmental Law Interest Group, is Research Professor and Director of The Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland. He is also the Chair of the Thematic Network on Arctic Law (University of the Arctic).
In the last months of 2011, a controversy emerged involving research on highly pathogenic avian influenza A (H5N1) undertaken in The Netherlands and the United States. The projects produced H5N1 strains more transmissible among mammals. These results alarmed those worried about bioterrorism and accidental release of dangerous pathogens. A U.S. federal advisory body recommended that aspects of the research not be published. The controversy drew attention to governance of research designed to protect health but that creates biological agents, knowledge, and/or scientific methodologies potentially dangerous to national security and public health. This Insight describes this controversy and identifies international legal issues it highlights.
H5N1 is a global health concern. It first caused human infections and deaths during a poultry outbreak in Hong Kong in 1997. It re-emerged globally in 2003 and 2004, resulting in more human cases and fatalities. This H5N1 strain is virulent in humans, with a mortality rate of approximately 60%. However, it does not readily transmit between people. The virus’ spread through avian populations, and increased human cases caused by contact with infected birds, created global health nightmares by the middle of last decade. Experts feared that this virulent strain might mutate to be more transmissible in humans. Such a mutation could trigger a catastrophic pandemic. The H5N1 virus caused national and international authorities to scale-up pandemic preparedness. Although this virus has not mutated into a human pandemic strain, it continues to cause concern—including that mutations with pandemic potential could emerge.
H5N1 Research Controversy
In September 2011, scientists in The Netherlands and the United States announced that independent experiments produced H5N1 strains with enhanced transmissibility in mammals. The projects sought to generate information about the H5N1 virus given concerns about potential mutations. The U.S. National Institutes of Health funded both projects.
However, the research caused national security and public health anxieties and produced controversy about whether the findings should be fully published. The National Science Advisory Board for Biosecurity (“NSABB”), which advises the U.S. Department of Health and Human Services (“DHHS”), recommended in December 2011 that the researchers and journal editors publish “the general conclusions highlighting the novel outcome . . . but not include the methodological and other details that could enable replication of the experiment by those who would seek to do harm.” DHHS agreed with these recommendations, but neither the researchers nor the publishers are legally bound to follow them. However, experts raised concerns that such research potentially also threatens public health through accidental release, escape, or theft of the research strains because of inadequate biosecurity and biosafety in laboratories, leading to arguments that these strains should be destroyed.
The scientific journals in question have agreed not to publish the research findings in full, but the matter is far from resolved, especially in terms of what should happen to the H5N1 strains produced by the research and who should have access to the full findings. More generally, the controversy generated questions about the prudence of conducting this kind of research, the standards under which it is undertaken and managed, disclosure of findings and methodologies, and post-research handling of more dangerous strains produced through research. The controversy’s international dimensions fostered calls for strengthened cooperation given perceived weaknesses in international governance.
This is not the first time these questions have arisen. Previous research, such as re-creation of the influenza strain responsible for the great pandemic of 1918-1919, stimulated similar issues. Advances in life sciences, such as synthetic biology, continue to provide more ways to manipulate microbial organisms for a range of scientific, medical, and commercial purposes. Concerns about the H5N1 research have again forced scientists and policy makers to think about risks associated with well-intentioned, lawful, and potentially valuable research that might facilitate bioterrorism or result in accidental release or escape. The World Health Organization (“WHO”) captured the conundrum when it expressed concern about potentially adverse consequences of the H5N1 research but stressed that research continue “so that critical scientific knowledge needed to reduce the risks posed by the H5N1 virus continues to increase.” Balancing costs and benefits requires governance of risky research, and the international scale of such research brings international law into the picture.
International Law and the H5N1 Research Controversy
Biological Weapons Convention
The Biological Weapons Convention (“BWC”) prohibits development, production, stockpiling, and transfer of “microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes” (Article I). Other BWC obligations flow from this prohibition, such as the requirement to “take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere” (Article IV). States parties supplemented these obligations with non-binding confidence building measures that encouraged information sharing on biological defense research and research facilities.
No one has argued that the H5N1 research violated the BWC. The BWC does not apply because the H5N1 research has a peaceful purpose related to health protection. This outcome reflects the difficulty of using the BWC to address potentially adverse consequences of research undertaken to benefit health. At most, the BWC prohibits states parties with jurisdiction over potentially dangerous pathogens associated with lawful research from using them for purposes with no legitimate justification.
However, BWC states parties have concerns about dangers scientific developments present to the treaty. At the BWC’s Seventh Review Conference in December 2011, states parties agreed to examine developments in science and technology during intersessional meetings from 2012 to 2015. Even so, the BWC’s focus on hostile uses of biological agents means that it cannot, as constructed, regulate research that has prophylactic, protective, or other peaceful purposes.
International Law on Bioterrorism
International law specific to bioterrorism does not regulate the kind of research done on the H5N1 virus. A UN treaty criminalizes use of biological agents in terrorist bombings, which is irrelevant in this context. Binding Security Council decisions require UN members to “take and enforce effective measures to establish domestic controls to prevent the proliferation of . . . biological weapons and their means of delivery, including by establishing appropriate controls over related materials.” These requirements apply to pathogens (such as more transmissible H5N1 strains used, created, or altered by peaceful research) and underscore the importance of physical biosecurity in research laboratories. The Security Council decisions do not, however, expressly address the processes of vetting lawful research or publishing research results.
International Law on Health Threats
International law on health threats, principally the International Health Regulations (2005) (“IHR”) adopted by the WHO, does not regulate the kind of research undertaken in the H5N1 projects. The IHR seeks to strengthen surveillance and response concerning public health emergencies of international concern (Article 2), including those associated with new influenza viruses (Annex 2). However, the IHR does not regulate scientific research.
WHO observed during the H5N1 research controversy that researchers should comply with the Pandemic Influenza Preparedness Framework (“PIP Framework”) approved by the WHO in May 2011. The PIP Framework is a non-binding arrangement to facilitate sharing influenza viruses and benefits, such as vaccines, produced by research on shared samples. WHO stressed the PIP Framework’s requirement for researchers to collaborate with, and acknowledge, scientists from the country of origin in studying shared viruses. The PIP Framework has not elsewhere formed part of the concerns generated by the H5N1 controversy.
However, WHO’s linkage of the research with the PIP Framework raises other questions, such as how the Framework’s benefit-sharing components apply to research using shared viruses that produces more dangerous pathogens or methodologies. If concerns exist about publishing research findings (including scientific methodologies), worries about sharing such information through the PIP Framework might arise. Elsewhere, the PIP Framework incorporates biosecurity and biosafety standards in provisions on sharing viruses, which would apply if countries with jurisdiction over more dangerous strains produced by research shared them under the Framework.
International Law and Scientific Research Generally
More generally, states have used international law to regulate applications of scientific advances but not basic research informing those advances. Treaties (including the BWC) ban or regulate weaponization of certain technologies created through scientific research. The treaty banning human cloning does not regulate the science of cloning as such because it acknowledges “the progress that some cloning techniques themselves may bring to scientific knowledge and its medical application[.]”
International Human Rights Law
Although no government has acted against the researchers and their findings, the H5N1 controversy implicates international human rights law. In terms of research process, international law bans research on humans conducted without informed consent, which is not at issue here. The H5N1 controversy also raised questions about restricting publication of research, which touches on freedom of expression as a human right. Under international law, governments can restrict this right by law when necessary to protect national security or public health —the reasons people worry about the H5N1 research. The controversy provoked thinking about whether governments should restrict or prohibit certain kinds of lawful, well-intended research, which brings the freedom of scientific enquiry into play.  This freedom, too, is not absolute because governments can limit it to protect national security or public health.
This overview reveals few binding international rules applicable to lawful but potentially dangerous scientific research. In terms of permitting such research, international law—beyond the right to freedom of scientific enquiry—contains no specific regime. As the H5N1 controversy demonstrates, state practice prohibiting or seriously restricting potentially dangerous research designed to benefit health does not, at present, exist. Similarly, the H5N1 and earlier research controversies reveal reluctance by governments responsible for, or with jurisdiction over, the research or its publication to exercise coercive powers to prevent dissemination of research findings or methodologies.
States have used international law to obligate governments to ensure that researchers working with dangerous pathogens conduct research under appropriate and adequate biosecurity and biosafety standards. However, as the H5N1 controversy highlighted, these obligations remain general in nature, with specific guidance provided by non-binding documents. As such, these duties do not require countries, for example, to engage in H5N1 research only in laboratories having the highest biosecurity and biosafety requirements (i.e., BSL-4 labs). Nor is national implementation of the general biosecurity obligations subject to international oversight. The H5N1 controversy prompted criticism of the status quo and support for strengthened cooperation.
Models for International Research Governance
The Smallpox Model
One strategy could reflect how states handle the smallpox virus. A WHO-led effort eradicated smallpox—one of history’s great microbial killers—at the end of the 1970s, and WHO members have allowed WHO to establish policies for secure handling of the remaining virus samples and to oversee smallpox research. This approach provides for international oversight of smallpox research and assurance that it is undertaken securely and safely. The strategy is not binding under international law because it arises from WHO resolutions, which do not create legal obligations. Governments could adapt this model to legitimate but potentially dangerous research, such as research with influenza strains virulent in humans. However, differences between an eradicated virus held in very limited number of laboratories and pathogens present in nature and laboratories all over the world would create severe challenges for adapting the smallpox approach.
Mandatory International Oversight
Well before the H5N1 research controversy, experts proposed addressing potentially dangerous research on biological agentsthrough binding international regimes. One effort envisioned creating a treaty that “would involve three major innovations over existing oversight mechanisms: it would subject the most consequential areas of research to international jurisdiction; it would apply oversight comprehensively within all jurisdictions; and it would make the oversight process a legal obligation.” Achieving a mandatory and comprehensive regime would face many obstacles, even in the aftermath of the H5N1 research controversy.
Next Step: WHO-Led International Talks
In response to the controversy and calls for it to play a leading role, the WHO has agreed to facilitate negotiations to identify the key issues and work towards solutions.These negotiations have to address issues related to the Dutch and American research, including what should be done with the H5N1 research strains and who can get access to the full research findings. Longer-term challenges involve developing rules and processes for better handling the scientific, public health, and national security interests affected by risky research on pathogens. Whether these negotiations produce new international policy, law, and governance mechanisms is too difficult to predict but too important to ignore.
Many European countries have experienced outbreaks caused by a dangerous strain of Escherichia coli (E. coli) bacteria, and two countries have, to date, reported deaths related to these outbreaks. Responses have involved actions that implement and affect international legal regimes on public health and international trade. This Insight describes these E. coli outbreaks and the international legal issues the outbreaks have raised.
The European E. coli Outbreaks
On June 5, 2011, the World Health Organization (“WHO”) stated that twelve European countries had reported outbreaks of enterohaemorrhagic E. coli (“EHEC”) and E. coli-caused haemolytic uraemic syndrome (“HUS”). E. coli-related diseases are “transmitted to humans primarily through consumption of contaminated foods[.]” EHEC can cause bloody diarrhea and abdominal pain. HUS is a life-threatening disease caused by toxins produced by EHEC. HUS is characterized by acute renal failure, anaemia, and low platelet count. In prior outbreaks, HUS predominantly affected children, but the European outbreaks involve many adults.
As of June 5, 2011, twelve European countries had reported, cumulatively, 658 cases of HUS and 1608 cases of EHEC, for a total 2266 E. coli-related cases. The epicenter of the outbreaks is Germany, which (as of June 5, 2011) had reported 627 cases of HUS and 1536 cases of EHEC, with fifteen deaths from HUS and six from EHEC. One fatality from HUS has been reported outside Germany. The European outbreaks have become one of the biggest E. coli epidemics in history.
An unusual, “super toxic” strain—Shiga-toxin producing E. coli O104 (STEC O104:H4) —is thought to be the pathogenic cause. News reports indicate that European physicians have been alarmed that the strain appears resistant to antibiotics. As of June 6, 2011, the source of the outbreaks had not been determined, but is believed to be associated with consumption of raw vegetables perhaps grown with manure containing the deadly E. coli strain.
Application of International Law to the E. coli Outbreaks
Obligations on disease reporting
The main international legal instrument applicable to the E. coli outbreaks is the WHO’s International Health Regulations (2005) (“IHR (2005)”). The IHR (2005) is legally binding on all WHO member states. The IHR (2005)’s purpose is “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”
Under the IHR (2005), states parties must report to the WHO any disease event that may constitute a public health emergency of international concern (“PHEIC”). A PHEIC is an extraordinary event that constitutes a public health risk to other states through the international spread of disease that potentially requires a coordinated international response. A disease event might constitute a PHEIC, and thus must be reported to the WHO, if a state party can answer any two of four questions affirmatively:
- Is the public health impact of the event serious?
- Is the event unusual or unexpected?
- Is there significant risk of international spread?
- Is there a significant risk of international travel or trade restrictions?
Affected European countries have reported their outbreaks to the WHO as disease events that may constitute a PHEIC. The outbreaks have had serious public health impact, are unusual because of the “super toxic” strain, have spread to numerous countries, and have triggered trade restrictions. WHO is sharing information on the outbreaks and offering technical assistance to affected countries. The WHO Director-General has not convened the IHR (2005)’s Emergency Committee to advise whether she should declare an actual PHEIC and issue temporary recommendations to guide how countries should respond.
So far, problems that in the past plagued compliance with international legal obligations to report disease events have not appeared with the E. coli outbreaks. Affected countries have not tried to conceal the outbreaks, and news reports do not contain concerns that European governments lack capacities to identify and respond to the threat. The outbreak is, however, stressing health capacities in northern Germany.
Obligations related to responses to disease outbreaks
The IHR (2005) requires states parties to avoid responses to disease events that lack a scientific and public health basis and that impose unnecessary restrictions on international trade and travel. These obligations also exist under EU rules on freedom of movement of goods and in the World Trade Organization (“WTO”) Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”). With outbreaks, states often impose trade and travel restrictions that are not informed by science or that go beyond what public health principles support. For example, during the pandemic influenza A (H1N1) or “swine flu” outbreak in 2009, some countries imposed import bans on pork products that had no scientific or public health justification.
The European E. coli outbreaks have damaged trade and triggered trade restrictions. Early suggestions by German government authorities that the outbreak source was cucumbers from Spain caused damage to Spanish exports as European countries pulled Spanish produce from shelves, leading the Spanish government to assert that it would seek “compensation for its farmers, who say lost sales are costing them 200 million euros ($287 million) a week and could put 70,000 people out of work.” The EU Commissioner on Health and Consumer Policy has stated that the EU would “consider any ban on any product as disproportionate” and is working “to address the hardship faced by this group of our citizens that has also been hit hard by the E. coli outbreak.” Outside the EU, Russia imposed a ban on June 2, 2011, on raw vegetables from all EU countries, prompting complaints from EU members that such a ban was not justified and was disproportionate.
The E. coli outbreaks have, thus, triggered trade responses that might violate EU law, the IHR (2005), and the SPS Agreement. WHO has stated that it does not recommend trade or travel restrictions as responses to the E. coli outbreaks, indicating that such measures have no scientific or public health justification. This position means that the Russian ban on raw vegetable imports is a disproportionate and unnecessary response. EU law might help Spain remove trade barriers within the EU, but it will not help EU members affected by Russia’s trade restrictions. However, neither the IHR (2005) nor the SPS Agreement offers harmed exporting states effective remedy options.
Russia is a state party to the IHR (2005), but this agreement contains no mechanisms that could deliver timely relief to states parties harmed by unjustified trade restrictions. This problem was highlighted in April 2011 by the IHR Review Committee in its assessment of the IHR (2005)’s implementation during the 2009 pandemic influenza A (H1N1) outbreak. The IHR Review Committee stated: “The most important structural shortcoming of the IHR is the lack of enforceable sanctions. For example, if a country fails to explain why it has adopted more restrictive traffic and trade measures than those recommended by WHO, no legal consequences follow.”
However, the IHR Review Committee’s recommendation merely advised WHO to be more energetic in obtaining “the public-health rationale and relevant scientific information, share it with other States Parties, and, where appropriate, request reconsideration” from the state imposing the restriction. The recommendation’s weakness reflects the lack of any process in the IHR (2005) to sanction states parties for violating obligations not to impose unjustified and unnecessary trade restrictions in responding to disease outbreaks.
Complaints under the SPS Agreement are subject to the compulsory WTO dispute settlement process. However, Russia is not a WTO member, which means the WTO members affected by the Russian ban have no WTO recourse. Even if Russia were a WTO member, past episodes involving unjustified and unnecessary trade restrictions in response to disease outbreaks indicate that the WTO dispute settlement process (1) does not move quickly enough for a binding decision to be made before the trade restrictions in question are lifted, and (2) does not provide compensation as a remedy for economic losses incurred while the restrictions were in force.
Thus, the European E. coli outbreaks underscore a long-standing problem with international legal obligations under the WHO and WTO regimes that seek to regulate trade-related responses to disease outbreaks.
A similar problem has also existed with international legal obligations not to apply unjustified and unnecessary restrictions to, or health measures against, travelers, as evidenced by concerns that quarantine of travelers during the pandemic influenza A (H1N1) outbreaks violated the IHR (2005). These obligations seek to minimize the impact of disease events on international travel and to support human rights. So far, the European E. coli outbreaks do not appear to have resulted in restrictive or intrusive measures on individuals leaving countries suffering outbreaks, even though the strain’s spread has been associated with persons traveling from Germany. Persons traveling to affected areas have been advised to avoid consuming raw vegetables. However, as has happened in past disease events, if the outbreaks spread and/or worsen, governments might feel compelled to enact measures against persons traveling from affected countries, if for no other reason than demonstrating that they are “doing something” about the threat.
The E. coli outbreaks in Europe have proved dangerous and deadly and serve as yet another reminder of the mayhem the microbial world can cause. In deciphering the E. coli strain responsible for the outbreaks, concerns have arisen that its antibiotic resistance might derive from widespread use of antibiotics in raising livestock —an increasing global health concern that neither the IHR (2005) nor any other international legal regime specifically addresses.
More broadly, these outbreaks happened in affluent countries that have capacity to identify and respond to pathogenic threats. In all likelihood, these capacities will allow European countries to bring the outbreaks under control. Other countries, especially low-income countries, are not in the same position. The IHR (2005) requires states parties to have minimum surveillance and response capacities to handle serious disease events by June 2012. However, the IHR Review Committee observed in April 2011 that “many States Parties lack core capacities to detect, assess and report potential health threats and are not on a path to complete their obligations for plans and infrastructure by the 2012 deadline specified in the IHR.” Europe will recover from these E. coli outbreaks, but the global problem of inadequate public health capacity remains unaddressed despite international law directed at that very problem.
About the Author:
David P. Fidler, an ASIL member, is the James Louis Calamaras Professor of Law at the Indiana University Maurer School of Law and an Associate Fellow with the Chatham House Centre on Global Health Security.
Following the eruption of the Icelandic volcano Eyjafjallajökull on April 14, 2010, a cloud of ash, helped by winds, quickly spread across Europe. Since volcanic ash is a recognized threat to aircraft, most European civil aviation authorities, following well established and widely published international safety protocols issued by the International Civil Aviation Organization (ICAO), closed their airspace. The impact of the six-day closure was enormous: more than 100,000 flights were cancelled and about ten million passengers were unable to travel. In many cases, passengers were stranded in another country without any immediate possibility of going home. This situation not only placed the existing international framework for operational response to volcanic ash under a stress test, it also highlighted the limited level of integration achieved by the European Union (EU) in the civil aviation sector.
The flying bans were instituted because of fears that the volcanic ash—a mixture of glass, sand, and rock particles—could seriously damage aircraft engines. The national measures were based on scientific advice provided by the Volcanic Ash Advisory Centre (VAAC) and were implemented by the European Organization for the Safety of Air Navigation (EuroControl). Yet, even before the bans were lifted, recriminations among all those involved began. National authorities came under pressure from European airlines, several of whom claimed that successful test flights were conducted in the supposed danger zone. After three days of flying bans, all major airlines vocally claimed that authorities had been overly cautious in using a precautionary approach. In addition, critics disputed the model (Numerical Atmospheric-dispersion Modelling Environment, or NAME) used by the VAAC, which was originally developed to track radioactive fallout from Chernobyl nuclear disaster in 1986. They dismissed its model-based estimates of the extent of the ash cloud as “theoretical.” National authorities defended their “zero risk” regulatory response, claiming that it was consistent with the guidelines developed by ICAO in the 2007 Manual on Volcanic Ash, as well as with the Volcanic Ash Contingency Plan – EUR Region. In turn, scientists strenuously defended the predictions made by the NAME atmospheric dispersion model underpinning the ICAO guidelines.
The European Regulatory Response
Meanwhile, the cloud was not moving. As Europe was facing another week of disruption, the European Commission – acting outside of its competence – took the initiative over the weekend of April 17-18, with the Spanish Presidency and EuroControl, to propose a coordinated European approach. As the situation evolved, the NAME model and the national risk management procedures were tested. EU Member States, national air safety authorities, national air traffic controllers, and EuroControl realized that a more differentiated assessment of risk from the ash cloud was needed. But no Member State could act independently by departing from the ICAO guidelines and taking the first step to introduce change.
The guidelines are unequivocal regarding the danger of volcanic ash for aircraft engines:
Unfortunately, at present there are no agreed values of ash concentration which constitute a hazard to jet aircraft engines . . . but it is worth noting at this stage that the exposure time of the engines to the ash and the thrust settings at the time of the encounter both have a direct bearing on the threshold value of ash concentration that constitutes a hazard. In view of this, the recommended procedure in the case of volcanic ash is exactly the same as with low-level wind shear, regardless of ash concentration — AVOID AVOID AVOID.
Yet, five days after the enforcement of the national flying bans, on April 19, EuroControl Member States unanimously agreed to move to “a co-ordinated European approach in response to the crisis.” As a result, new procedures were defined, which led to a partial reopening of the European air space and hence reduced the human and economic impact on passengers, airlines, and cargo. The new measures came into force on April 20 and established three types of zone (depending on the degree of contamination): The first zone was located in the central nucleus of the emissions, where a full restriction of operations was maintained; the second consisted of an intermediary zone, where Member States could allow flights “in a coordinated manner [with other members]” but with additional restrictions and safety controls; and the third zone, not affected by the ash, had no restrictions. These procedures, based on a more differentiated risk assessment and paving the way for more coordinated decisionmaking among states, enabled “a progressive and coordinated opening of European Air Space.” By April 22, eight days after the eruption had begun, regular flight schedules resumed.
The Legal Implications of the Crisis
The situation created by the protracted closure of the European airspace has been so extraordinary that the regulatory action leading to the disruption continues to be at the center of a growing controversy. Beyond the personal dramatic situations experienced by millions of stranded passengers and difficult implementation of the Passenger’s Rights Regulation, the air industry has incurred significant costs and suffered reduced revenues. To address these concerns, the Commission has concluded that Member States should rapidly implement measures in favor of the air industry that would repair the damage caused by the natural disaster. Moreover, the disruption may also have some unforeseen financial consequences for the EU’s Emissions Trading Scheme (ETS). Indeed, since 2010 is the monitoring year for the establishment of the number of Aviation Allowances (AAs) allocated for free to airlines, the reduced activity in April could affect the distribution of those allowances between aircraft operators.
The regulatory consequences stemming from the crisis were not limited to the aviation sector. Thus, for instance, since April 14, 2010, the European Commission has raised questions about public health resulting from the ash cloud that covered large parts of the European Union. As a result, the Commission asked the European Centre for Disease Prevention and Control (ECDC) to assess the potential impact of the ash cloud on public health, and the European Food Safety Authority (EFSA) to obtain urgent advice on the possible risks for public and animal health of the contamination of the feed and food chain. The EFSA, in record time, concluded that, based on the available information, the potential risk of contamination posed by the volcanic ash-fall to drinking water, vegetables, fruit, fish, milk, meat, and feed was negligible.
Finally, the closure of the European airspace disrupted the travel of many third country nationals, who are subject to strict visa requirements during their stay or transit through the territory of the Schengen States. Urgent measures were taken for certain categories of travelers and, in particular, for people holding a short stay visa that had expired on or after April 15, 2010 and others not intending but needing to enter a Member State’s territory.
The Not-yet European Sky
EU integration does not extend to air traffic management. Only Member States can decide whether or not to close their airspace. As a result, the EU boasts twenty-seven different air traffic zones, each able to impose a flying ban. This fragmentation is the result of a history of air traffic control remaining closely associated with sovereignty, and hence confined within national borders. Indeed, air traffic control is still perceived as governed by both national defense and sovereignty interests. This also reflects one of the tenets of the Chicago Convention according to which each State is responsible for safety oversight in civil aviation within its jurisdiction.
Yet, efforts have been made toward integration of the EU airspace. Following the adoption of the Single European Sky (SES I) legislation in 2004, air traffic management was brought under the EU common transport policy. The idea was to redesign the European sky according to traffic flows rather than national borders. Yet, as unambiguously exemplified by the patchwork regulatory response to the current crisis, a truly “single” sky has not been achieved. To remedy this situation, another reform, the “Single European Sky Package” (SES II), was adopted by the European Parliament and the Council in November 2009. To accelerate the full implementation of the SES II, the Commission seems ready to leverage the volcanic ash crisis to create political momentum. In the aftermath of the crisis, the Commission issued a set of encouraging proposals. First, it proposed the creation of a European Aviation Crisis Coordination Cell (EACCC), gathering together EuroControl, European Air Safety Agency (EASA), member states, and air transport stakeholders. This is exactly what the EU did not have available during the crisis. The EACCC will mainly facilitate the management of crisis situations affecting aviation in the EU and will be empowered to launch unmanned aircraft vehicles (UAV) to collect data. Second, the Commission proposed the nomination of Functional Airspace Blocks (FAB) coordinators. FABs are nine airspace blocks based on operational requirements and established regardless of State boundaries, as foreseen in SES II. Third, the Commission proposed that the central European network management be appointed by the end of 2010 and authorized to develop a more harmonized and coordinated approach to risk and flow/capacity assessment.
Although existing ICAO guidelines proved effective in preventing accidents in the wake of the recent eruption of the Eyjafjallajökull volcano, actions taken by national authorities resulted in unprecedented disruptions of service and severe economic impact to the airline industry, as well as to sectors relying on air transport services. It became clear that more needed to be done to establish a safety risk assessment framework for determining whether it is safe to operate in airspace contaminated by volcanic ash. At the urging of industry, ICAO agreed to form a multi-disciplinary International Volcanic Ash Task Force (IVATF), and terms of reference have since been agreed upon. In light of its own experience, the EU Commission has decided to elaborate a new methodology for safety risk assessment and risk management in relation to the closure of airspace, to be proposed to the next ICAO general assembly in September 2010. In the meantime, by leveraging the disruption caused by the volcanic ash crisis, the Commission is likely to accelerate the implementation of SES II, thus institutionalizing some of the ad hoc mechanisms and procedures developed during the eruption. Undoubtedly, this crisis has added new impetus to the long-running struggle to unite Europe’s airspace. As shown by this crisis, more than twenty years after the EU eliminated its internal land borders, the Union still lacks an integrated airspace. Time seems ripe for the EU to conquer its own sky.
Alberto Alemanno, an ASIL member, is Associate Professor of EU Law at HEC Paris and Adjunct Professor at Georgetown Law School, where he will be teaching Global Risk Regulation in spring 2011. He is the editor of the European Journal of Risk Regulation and the area editor for Policy of Risk Analysis: An International Journal. He can be reached at firstname.lastname@example.org.
 ICAO was created in 1944 by the Convention on International Civil Aviation and is headquartered in Montreal, Canada.
 At its height, in April 17-18, 2010, seventeen EU Member States had a full airspace closure and two were partially closed. At the same time, six non-EU States were fully closed.
 Nine Volcanic Ash Advisory Centers around the world are responsible for advising international aviation of the location and movement of clouds of volcanic ash. They are part of an international system set up by ICAO in coordination with the World Meteorological Organization (WMO) and called the International Airways Volcano Watch (IAVW). In particular, the London VAAC is responsible for monitoring and forecasting the movement of volcanic ash over the United Kingdom, Iceland, and the north-eastern part of the North Atlantic Ocean.
 EUROCONTROL is an international, not an EU, organization, established in 1960 by Belgium, France, Germany, Luxembourg, Northern Ireland, the Netherlands, and the United Kingdom through the EuroControl International Convention relating to Co-operation for the Safety of Air Navigation. This convention entered into force in 1963 and has thirty-eight Member countries, including the European Union.
 See Int’l Civil Aviation Org. [ICAO], Manual on Volcanic Ash, Radioactive Material and Toxic Chemical Clouds, ICAO Doc. 9691 (2d ed. 2007), available at http://www.paris.icao.int/news/pdf/9691.pdf [hereinafter Manual] (providing that the NAME has evolved into an all-purpose dispersion model capable of predicting the transport, transformation, and deposition of a wide class of airborne materials (e.g., nuclear material, volcanic emissions, biomass smoke, chemical spills, foot-and-mouth disease).
 Statement by Giovanni Bisignani, Director, General, & Chief Executive of the Int’l Air Transport Ass’n (IATA) (Apr. 19, 2010).
 See Manual, supra note 5.
 Volcanic Ash Contingency Plan – EUR Region, EUR Doc 019 (2d ed. 2009), available at http://www.paris.icao.int/documents_open/files.php?subcategory_id=63.
 See Manual, supra note 5, § 3.4.
 See Memorandum, Volcanic Ash Crisis: Frequently Asked Questions, MEMO/10/143 (Apr. 20, 2010).
 See Manual, supra note 5, § 3.4.8.
 See Memorandum, supra note 10.
 These procedures were presented by EU Commission Vice President Kallas and endorsed at an extraordinary meeting of Transport Ministers, chaired by Spanish Minister José Blanco.
 This zone has since then split into two “enhanced zones”: a red zone in which some volcanic ash may be encountered, but where flights can still take place according to EASA; and a grey zone in which EASA recommends two approaches that allow flights under certain conditions.
 Extraordinary Meeting of Ministers of Transport (Apr. 19, 2010), available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/trans/113899.pdf.
 See EuroControl Volcanic Ash Cloud Timeline - April Events, EUROCONTROL- EUR. ORG. FOR THE SAFETY OF AIR NAVIGATION, http://www.eurocontrol.int/corporate/public/standard_page/volcanic_ash_cloud_chronology.html (last visited June 30, 2010) (noting that 27,284 flights were approved, compared with the 28,578 flight expected on the same day two weeks earlier).
 See Note d’information de M. Kallas [Information Note to the Commission], Conséquences du nuages de cendres générée par l’éruption volcanique survenue en Islande sur le trafic aérien [The Impact of the Volcanic Ash Cloud Crisis on the Air Transport Industry], SEC(2010) 533, ¶ 26 (Apr. 27, 2010) [hereinafter Information Note] (noting that despite the exceptional circumstances, the EU Commission considered that the Regulation on Air Passengers Rights (EC Regulation 261/2004) remained fully applicable).
 See Memorandum, supra note 10 (explaining that besides air carriers, other transportation providers or those providing transportation services have incurred damages). For example, airports have been severely hit, as well as ground handling services and tour operators. Under EU law, tour operators are required to provide repatriation of stranded passengers. They are also obliged to refund or offer alternative arrangements to customers who have not started their journey because of the European airspace’s closure.
 Directive 2008/101 of the European Parliament and of the Council of 19 November 2008 Amending Directive 2003/87/EC so as to Include Aviation Activities in the Scheme for Greenhouse Gas Emission Allowance Trading Within the Community, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX: 32008L0101:EN:NOT.
 The advice from the ECDC indicated that the amount of ash likely to come to ground in the aftermath of the eruption, as well as impact on health, was minimal, if any.
 The Commission asked EFSA to provide by April 22, 2010 scientific assistance, based on the chemical composition of volcanic ash, on the possible health risks via food, including drinking water and feed, in case of a significant ash fall. See Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 Laying Down the General Principles and Requirements of Food Law, Establishing the European Food Safety Authority and Laying Down Procedures in Matters of Food Safety, art. 31, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:031:0001:0024:EN:PDF.
 Air Traffic Management (ATM) encompasses the functions required to ensure safe and efficient movement of aircraft during all phases of operations (Air Traffic Services (ATS)), Airspace Management (ASM) and Air Traffic Flow Management (ATFM).
 Chicago Convention on International Civil Aviation, Dec. 7, 1944.
 Efforts to shape an EU airspace date back to 1996 when the European Commission published a White Paper on Air Traffic Management (“Freeing Europe’s Airspace”) and were followed by the 1997 initiative of EuroControl members to open up membership to the European Community.
 See Regulation 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the Single European Sky, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0549:EN:NOT (providing that the SES I consists of a Framework Regulation plus three technical regulations on the provision of air navigation services, organization and use of the airspace, and the interoperability of the European air traffic management network).
 Regulation 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004, and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:300:0034:0050:en:PDF.
 The European Air Safety Agency provides expert advice to the EU on drafting new legislation. In particular, it is in charge of the implementation and monitoring of safety rules, including inspections in the Member States as well as of the approval of organizations involved in the design, manufacture, and maintenance of aeronautical products.
 See Information Note, supra note 16, ¶ 44 (noting that, in accordance with Article 8 of the Framework Regulation, the European Commission has issued a mandate to the EuroControl Agency for support in the establishment of FABs).
 Id. ¶ 60.
On January 12, 2010, a massive earthquake struck Haiti, essentially destroying the Haitian government infrastructure. According to remarks by Rene Magloire, former Minister of Justice and Special Advisor to the President and Ministry of Justice, the presidential palace, the ministry of justice building, and the legislative palace were destroyed. Police stations and prisons were damaged, allowing thousands of detainees and prisoners to escape. More than 200 thousand died, more than 300 thousand were injured, more than 450 thousand became refugees, more than 400 thousand homes were destroyed, more than 120 thousand homes damaged, and more than a million people were left without shelter. For five years Magloire and other justice officials had been working on re-establishing the Haitian judicial system and the rule of law.
Earthquakes, tsunamis, and climate disruption have focused international attention on environmental disasters, natural and anthropogenic, and the ability of the global community to respond adequately and immediately. This Insight surveys the structures for consensual relief efforts by states and the United Nations, accepted international norms for humanitarian intervention in environmental disasters, and how these norms might be modified by international recognition of the responsibility to protect.
Consensual Relief Efforts
As early as 1991, the United Nations Environmental Program ("UNEP"), in response to mounting disquietude over environmental security, established the United Nations Center for Urgent Environmental Assistance ("UNCUEA") to assess and respond to man-made environmental emergencies in cooperation with other United Nations agencies. To address acute environmental emergencies specifically, UNEP has now coordinated with the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) to create the Joint UNEP/OCHA Environment Unit (JEU). A month after the earthquake in Haiti, John Holmes, the head of OCHA, wrote a confidential email to his top UN relief agency coordinators highly critical of the UN relief efforts and weak implementation of its humanitarian "cluster strategy" for delivering relief in twelve sectors of need, including water, health care, and shelter. He emphasized that "with the rainy season looming, these unmet needs are taking on additional urgency, not least from the health and protections points of view, and given the potential consequences in terms of both politics and security of large demonstrations in some sensitive places." He stated that there was an urgent need for better coordination "(1) to ensure close coordination with the efforts of national authorities; (2) to channel the contributions of the private sector; and (3) to make maximum use of the logistical support and other assistance provided by the military."
In a natural disaster like that in Haiti, there are significant logistical problems in coordination of UN and multilateral relief efforts, even with a totally cooperative and consenting state. Legal problems are less significant with a consenting state, as there is no need to justify relief efforts as lawful "intervention." Providing relief assistance in an uncooperative or failed state, however, may present legal problems. Even the Security Council is subject to the Article 2(7) prohibition on intervention in states’ domestic jurisdiction when it recommends relief assistance under Chapter VI. If the state in which the environmental problem originates is uncooperative, the Security Council, instead of resorting to Chapter VII, might choose to issue precautionary and ameliorative recommendations for emergency response action applicable only in the territory of consenting states, but which could nevertheless be interpreted by the state of origin as "intervention" in its domestic jurisdiction. For example, routine monitoring or exchange of information on the transboundary effects of an environmental disaster, taken pursuant to a Security Council recommendation that there be such collection and exchange of information, might be objectionable to the state of origin. In this regard, it is relevant to note that Russian counter-intelligence agents in 1995 accused a "[w]estern ecological organization of divulging military secrets and . . . suggested that foreign environmental groups are fronts for espionage."
Environmental disasters with transboundary effects, loss of a vital global resource, or actions in violation of international environmental law may no longer be regarded as matters of "domestic" jurisdiction. An interpretation of "domestic" jurisdiction that excludes environmental disasters with international ramifications is also consistent with the current widespread recognition that "domestic" jurisdiction does not encompass large scale deprivation of basic human rights. Otherwise even the most well intended relief efforts by states or the UN might be characterized as unlawful intervention in uncooperative or failed states.
Even when working with a fully cooperative government in Haiti, the head of UN relief operations has acknowledged a disturbing inadequacy of the UN to provide and coordinate voluntary relief assistance. In the first critical hours during the Haiti earthquake, or in the next environmental disaster, what government is available to consent to such efforts? Do the international community and the UN have to await consent from a state unable to respond? The Security Council may authorize action without consent if there is a "threat to peace," and recent precedents of humanitarian intervention and acknowledgment of refugee problems as a threat to peace may lend themselves to invocation of Chapter VII, but not decisively so.
The legality of unilateral and multilateral humanitarian intervention by states continues to be highly disputed, given the Charter limitation on states’ use of force as "self-defense." It would be difficult for a state to justify military intervention in a natural disaster in another state as self-defense. Similarly, "breach of peace, threat to peace, or an act of aggression" under Chapter VII for purposes of Security Council authorization of enforcement measures does not effortlessly lend itself to authorizing humanitarian intervention, much less in natural disasters.
In the absence of real or threatened military conflict, can environmental destruction be sufficient to trigger the Council’s Chapter VII powers? Is a threat to ecological security a threat to international peace and security? The Security Council has declared that non-military sources of instability in the economic, humanitarian, and ecological fields may become a threat to peace and security. Should environmental degradation threaten to lead to conflict between states or take place in an ongoing military conflict, there would be no need to resort to a separate notion of ecological security or humanitarian intervention in order to trigger authority in the Security Council under Chapter VII. Absent real or potential military conflict, however, there are many conceivable scenarios in which the state of origin of an environmental disaster might be unable or unwilling to cooperate with the Security Council or other states (e.g., the Soviet Union during Chernobyl and Myammar after the tsunami), thereby exacerbating the transboundary effects of an environmental disaster and jeopardizing the lives of its own populace by refusing to cooperate with the international community in remedial action.
Security Council enforcement action with respect to preservation of human rights is analogous to Security Council enforcement action to protect individuals from environmental catastrophes. For example, the humanitarian mission to Somalia, the economic sanctions and authorization of a multinational force for Haiti in 1993, the placement of relief operations in Iraqi territory for the Kurdish population, and the establishment of the international criminal tribunals for Rwanda and the former Yugoslavia are examples of humanitarian intervention by the Security Council in order to remedy gross and systematic deprivation of human rights. Although each of these precedents (with the notable exception of Haiti) can be legitimized by pointing to the background conflicts present, such a position would ignore the humanitarian justifications given in the relevant resolutions for the Security Council’s actions. Notably, the political tension created by mass migration of refugees has also been a factor in the Council’s invocation of Chapter VII. These examples indicate that the Security Council members and the global community are at least somewhat receptive to a policy-oriented, constitutive approach to interpreting the Charter even when such interpretation expands the obligations and duties of member states beyond the original intent of the Charter.
Any analogy to the Security Council’s exercise of humanitarian intervention under Chapter VII is complicated by the fact that, under international law, there has yet to be clear and unequivocal recognition of a right to a safe and healthful environment. This lack of recognition is particularly troublesome in that whatever authority the Security Council might have under Chapter VII, the scope of its activities is confined by the stated purposes of the United Nations in Article 1. Article 1 explicitly mentions human rights as one of the fundamental purposes of the United Nations. Absent a threat to military peace and security, or recognition of the concept of ecological security, legitimacy of any Security Council enforcement measures in responding to natural disasters on humanitarian grounds will be attenuated so long as there is no explicit and clear recognition of a fundamental right to a safe and healthful environment.
The Responsibility to Protect
The gap between this periodic need for the international community to intervene in a state’s management of environmental disasters and the prohibition on intervention could be filled by an extension of a relatively new norm to this situation. On September 16, 2005, the United Nations General Assembly adopted by consensus a resolution recognizing the "responsibility to protect". The core of the responsibility to protect is that "[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity." The international community has the responsibility to use diplomatic, humanitarian and other peaceful means, and if those fail, may 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" when "national authorities are manifestly failing to protect their populations" from the four crimes.
A broader formulation of the responsibility to protect was included in the 2001 report, The Responsibility to Protect, from the International Commission on Intervention and State Sovereignty (ICISS Report). It concludes 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." The elements of the responsibility include the responsibility to prevent, react, and rebuild, with the single most important priority being the responsibility to prevent. The ICISS Report also advises that military intervention is appropriate when there is "serious and irreparable harm occurring to human beings, or likely to occur," involving large scale loss of life (whether from "deliberate state action, or state neglect or inability to act, or a failed state situation") or large scale ethnic cleansing. While the ICISS Report favors intervention through the UN Security Council and General Assembly, it acknowledges the possibility of state intervention in a "conscience-shocking" situation if the UN fails to address the situation in a timely manner.
However, UN officials, including the Secretary-General, have been quick to deny that the responsibility to protect applies to environmental crises.
From State Security to Human Security
Would the responsibility to protect, if accepted as a norm of international law, alter the calculation by requiring the Security Council or states to act? Ultimately, the difference between Chapter VII precedents, the UN formulation of the responsibility to protect, and ICISS Report may be one of affirmative obligation versus permissive authority, and timing. A natural disaster, which results in massive loss of life and population displacement, can be characterized as a "threat to peace" such that the Security Council may authorize enforcement action. The Security Council would not have an affirmative responsibility to protect, unless the situation deteriorates into the commission of war crimes, genocide, ethnic cleansing, or crimes against humanity. Under the ICISS formulation, states and the UN would have an affirmative obligation to respond whenever a population is suffering serious harm, and the UN would have an affirmative obligation to do so with military force when there is a large scale loss of life, "actual or apprehended which is the product of deliberate state action, neglect or inability to act, or a failed state situation . . . ." Haiti, seeking to "rise from the ashes," in the words of King Henri Christophe, the leader of the 1804 Haitian revolution, may provide a litmus test for which approach, prevention or remediation, is to be the international practice.
Linda A. Malone, an ASIL member, is the Marshall-Wythe Professor of Law and Director of the Human Security Law Program at William and Mary Law School.
 Rene Magloire and Louis Aucoin, Remarks at the William and Mary Law School Sponsored by the Program for Comparative Legal Studies and Post-Conflict Justice and the United States Institute of Peace (Feb. 15, 2010).
 United Nations Office for the Coordination of Humanitarian Affairs, What is the Joint Environment Unit?, http://ochaonline.un.org/ToolsServices/EmergencyRelief/EnvironmentalEmergenciesand
theJEU/WhatistheJointEnvironmentUnit/tabid/1459/language/en-US/Default.aspx; see also Megan M. Grew, The Joint UNEP/OCHA Environmental Unit: A Global Environmental Response Team, 25 SUFFOLK TRANSNAT’L L. REV. 687(2002).
 The text of the email is available at http://turtlebay.foreignpolicy.com/posts/2010/02/17/top_un_
 U.N. Charter Article 2(7) provides:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
U.N. Charter art. 2, para. 7.
 Lee Hockstader, Ecologists Accused of Espionage, WASH. POST, Oct. 22, 1995, at A26.
 See generally Linda A. Malone, ‘Green Helmets’: The United Nations Security Council’s Authority to Respond to Environmental Disaster, 17 MICH. J. INT’L L. 515 (1996).
 S.C. Res. 794, ¶ 1, U.N. Doc. S/RES/794 (1992).
 S.C. Res. 841, ¶ 1, U.N. Doc. S/RES/841 (1993).
 S.C. Res. 688, ¶ 2, U.N. Doc. S/RES/688 (1991), reprinted in 30 I.L.M. 858 (1991).
 S.C. Res. 995, ¶ 2, U.N. Doc. S/RES/995 (1994).
 S.C. Res. 827, ¶¶ 1-2, U.N. Doc. S/RES/827 (1993).
 See W. PAUL GORMLEY, HUMAN RIGHTS AND THE ENVIRONMENT: THE NEED FOR INTERNATIONAL COOPERATION (1976); ALEXANDRE KISS & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW (1991); Gudmundur Alfredson & Alexander Ovsiouk, Human Rights and the Environment, 60 NORD. J. INT'L L. 19 (1991); Noralee Gibson, The Right to a Clean Environment, 54 SASK. L. REV. 5 (1990); W. Paul Gormley, The Legal Obligation of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human Rights Norms, 3 GEO. INT'L ENVTL. L. REV. 85 (1990); W. Paul Gormley, The Right to a Safe and Decent Environment, 28 INDIAN J. INT'L L. 1 (1988); W. Paul Gormley, The Right of Individuals to be Guaranteed a Pure, Clean and Decent Environment: Future Programs of the Council of Europe, I LEGAL ISSUES OF EUR. INTEGRATION 23 (1975); Gunther Handl, Human Rights and Protection of the Environment: A Mildly ‘Revisionist’ View, in HUMAN RIGHTS, SUSTAINABLE DEVELOPMENT AND THE ENVIRONMENT 117 (A. Cancado Trindade ed., 1992); Iveta Hodkova, Is There a Right to a Healthy Environment in the International Legal Order?, 7 CONN. J. INT'L L. 65 (1991); R.S. Pathak, The Human Rights System As a Conceptual Framework for Environmental Law, in ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW: NEW CHALLENGES AND DIMENSIONS 205 (Edith B. Weiss ed., 1992); Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment, 28 STAN. J. INT'L L. 103 (1991); Dinah Shelton, The Right to Environment, in THE FUTURE OF HUMAN RIGHTS PROTECTION IN A CHANGING WORLD: FIFTY YEARS SINCE THE FOUR FREEDOMS ADDRESS, ESSAYS IN HONOR OF TORKEL OPSAHL 197 (Asbjorn Eide & Jan Helgesen eds., 1991); Heinhard Steiger et al., The Fundamental Right to a Decent Environment, in TRENDS IN ENVIRONMENTAL POLICY AND LAW 1 (Michael Bothe ed., 1980); Melissa Thorme, Establishing Environment as a Human Right, 19 DENY. J. INT'L L. & POL'Y 301(1991); Henn-Juri Uibopuu, The Internationally Guaranteed Right of an Individual to a Clean Environment, in HUMAN RIGHTS IN THE WORLD COMMUNITY: ISSUES AND ACTION 151 (Richard P. Claude & Bums H. Weston eds., 1989); David A. Wirth, The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa?, 29 GA. L. REV. 599 (1995); Jennifer A. Downs, Note, A Healthy and Ecologically Balanced Environment: An Argument for a Third Generation Right, 3 DUKE J. COMP. & INT'L L. 351 (1993); James T. McClymonds, Note, The Human Right to a Healthy Environment: An International Legal Perspective, 37 N.Y.L. SCH. L. REV. 583 (1992); cf. World Charter for Nature,G.A. Res. 37/7, U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N. Doc. A/37/51 (1982); 22 ILM 455 (1983), available at http://www.un.org/documents/ga/res/37/a37r007.htm; World Charter for Nature Addendum, U.N. GAOR, 37th Sess., Agenda Item 21, U.N. Doc. A/37/L.4/Add.l (1982); see generally Andrzej Makarewicz, La protection internationale du droit i l'environnement, in ENVIRONNEMENT ET DROITS DE L'HOMME 77, 79-82 (Pascale Kromarek ed., 1987).
 U.N. Charter art. 1.
 G.A. Res. A/RES/60/1, ¶ 138, U.N. Doc. A/RES/60/1 (Oct. 24, 2005); and S.C. Res. 1674, ¶ 4, U.N. Doc. S/RES/1674 (Apr. 28, 2006) (the Security Council reaffirmed the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect).
 See G.A. Res. A/RES/60/1, supra note 14.
 Id. ¶ 138.
 As this article was going to press, one of the strongest earthquakes ever took place in Chile and Japan and Hawaii braced for a tsunami which fortunately did not materialize. Although much stronger than the Haitian earthquake, the loss of life and damage seemed much less severe, highlighting the correlation between poverty, inadequate infrastructures, and unsustainable population concentrations in attributing to natural disasters. Poverty Predicts Quake Damage Better than Richter Scale, AOL NEWS (Feb. 27, 2010), http://www.aolnews.com/world/article/poverty-predicts-quake-damage-better-than-richter-scale/19376567?icid=main|htmlws-main-w|dl1|link3|http%3A%2F%2Fwww.aolnews.com%2Fworld%2Farticle%2Fpoverty-predicts-quake-damage-better-than-richter-scale%2F19376567.