Environmental Intervention as a Sub-Category of Humanitarian Intervention?

The risk of pollution of the marine environment by oil pollution from ships has long been a major regulatory concern. The international law of the sea gives coastal states and flag states specific responsibilities for the prevention of such oil spills and all countries that have ratified the United Nations Convention on the Law of the Sea (UNCLOS) have an obligation to protect the marine environment. In a 2021 article in Nature, Huynh et al. highlight the risk posed by the oil tanker “Safer” (named after the nearby region) which is located off the coast of Yemen. The tanker has been abandoned in 2015 and is in a state of disrepair, leading to a risk of an oil spill. If such an oil spill were to happen, according to Huynh et al., it would exceed the damage caused by the 1989 Exxon Valdez oil spill by several times, and it put the health and lives of millions of people in war-torn Yemen at risk. In addition, a disaster could impact maritime traffic in the Bal el Mandab Strait, a major shipping route. The blocking of the Suez Canal by the cargo ship Ever Given last year would be a minor inconvenience compared to the disaster that is looming off the coast of Yemen. 

These concerns lead to the question of whether unilateral action on the part of a State other than Yemen could be permitted. The Safer is located 60 km north of AlHudaydah in the southern part of the Red Sea, close to the coast of Yemen. It has been there for many years because it is a ship only de jure: it is converted into a floating oil tank that was positioned there in 1988. It is the endpoint of a pipeline from the Safer region in Yemen. It, therefore, has to be assumed that the vessel is located either in Yemen’s territorial sea or even in its internal waters. In any case, only Yemen, as coastal and as flag state, exercises sovereignty over the ship.

This part of Yemen is not under the control of the official government but is ruled by the Ansar Allah, an Shia islamist movement commonly referred to by the name of the tribe from which most of its members hail, the Houthis. The negotiations between the Houthis, who control the region, and the United Nations for a long time did not lead to a result and Ansar Allah does not appear to be interested in solving the problem. It was only in March of this year, that UN and Houthis came to an agreement, but it took until September 2022 for the first part of the operation to become feasible because donor states actually had to provide the money that they had pledged. This might seem surprising but it happens even with small amounts and in relatively rich countries that funds that were pledged are not actually provided or are only provided late. The Safer saga seems to be far from over. 

If these delays continue, the question of an environmental intervention might become relevant again. Similarly, the environmental intervention idea might become relevant for example in the Russian-occupied part of Ukraine, where Russian forces risk nuclear disaster at Europe’s largest nuclear power plant. How could such an environmental intervention look like, if we take the Safer as an example?  

Assuming that no crew members were on board the Safer, and it could be done so in a way that would not endanger people on land (which seems highly questionable, given the proximity to the shore) would it be permissible for a foreign state to neutralize the threat posed by the Yemen-flagged ship while it is located in the territorial sea of Yemen, assuming that the authorities in Yemen are unwilling (the Houthis) or unable (the internationally recognized government which is at war with the Houthis) to protect the people in the region against the imminent disaster? In other words, can there be a justification for environmental intervention, as a special case of humanitarian intervention, allowing other states to take action to protect the local population and the natural environment?

There are several ways in which this could be achieved. A Torrey Canyon-style bombardment of the Safer in the hope that the resulting explosion would completely burn off the oil present on the ship would require the pipeline to be closed. The proximity of the ship to the coast would mean that the resulting explosion could lead to a large number of casualties on land. At this time, this does not seem to be an option. An alternative would be to seize the ship and the port infrastructure by force from the Houthis. This would essentially require an outside actor to take sides in the conflict, like a number of states have already done. Because it is thought that the waters surrounding the Safer are mined, this would require specialized skills and equipment, such as anti-mining divers. Only around a dozen national navies, mainly from Europe, North America, Australia and New Zealand have the required mine clearance divers and the necessary support infrastructure necessary for this task. Once secured, and assuming that the Safer did not explode in the potential fighting that is likely necessary to secure the port and the ship, the Safer’s tanks could then be emptied into the tanks of other oil tankers. This will take time and require a significant force. Any such attempts do not appear practical. 

They would also face significant legal hurdles. The sovereignty of states remains the cornerstone of modern international law and concepts such as humanitarian intervention and the responsibility to protect (R2P) have not gained universal support. Also when it comes to protecting the natural environment, states have opposed attempts at outside regulatory interference, for example in the case of Brazil’s Amazon rainforest. Also, in the Arctic, the role of non-Arctic states in shaping the international legal norms that are meant to protect the fragile marine environment of the Arctic Ocean, is the object of discussion and while some non-Arctic states have gained observer status with the Arctic Council, they can never become full members.

Although the permissibility of humanitarian intervention was deemed to be emerging more than two decades ago in the context of Operation Allied Force 1999 and later in discussions concerning the concept of R2P, there is no clear rule of customary international law to the effect that the use of force against another state military action would be permissible without the express consent of the UN Security Council or at least the UN General Assembly (thinking of the “Uniting for Peace” resolution). The proposed action would, however, not amount to an armed attack. Instead, the environmental intervention discussed here could be comparable with the evacuation of citizens and third persons from another country without the express permission of the government of the country from which the persons, potentially including also citizens of that state, are to be evacuated. Such an action would involve a prima facie interference with the rights of the targeted state, for example by entering the air space and territory. This interference could be justified. Of the three concepts that come to mind immediately are force majeure, distress, and necessity.

Force majeure requires the absence of an ability of the state to actually decide on a course of action but the state has no choice. In the wording of Article 23 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARISWA), “the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation”. An environmental intervention would be permitted due to force majeure only in extreme circumstances.

Article 24 ARISWA allows states to take actions necessary to protect themselves in situations of distress. Article 24 ARISWA allows interferences with the sovereignty of another state “if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care”. Unilateral environmental interventions would be permitted under this concept if there would be a threat to human life. This threat would have to be in relation to residents or citizens of the intervening state. In case the threat is limited to another state, the notion of distress does not permit unilateral action.

That leaves the intervening state with the option to invoke necessity as outlined in Article 25 ARISWA. This requires that the environmental intervention “is the only way for the State to safeguard an essential interest against a grave and imminent peril [and] does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole”. 

The private law idea of “Benevolent Intervention in another’s affairs” might also be useful in the context of public international law. But such a construction might not be necessary here because, under both the United Nations Convention on the Law of the Sea and customary international law, states have a general duty to protect the marine environment. Barring all other options, violating the sovereignty of a state that stands in the way of the necessary action to prevent large-scale pollution might become permissible in order to honour the erga omnes obligation to protect the marine environment. 

In practice, there will be significant hurdles to such an approach. If even in the case of massive human rights violations and the risk of genocide a right to engage in humanitarian intervention without approval by the United Nations Security Council has been recognized yet, making the case for environmental intervention will be even harder. In the case of the Safer, implementing the existing UN plan continues to be the most prudent course of action, but time is of the essence.