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THOUGHTS ON THE U.N. 2017 POPULATION PROSPECTS: PROCREATION-RELATED

INTERNATIONALLY WRONGFUL ACTS, AND OVERPOPULATION AS GLOBAL RISK

Ciprian N. Radavoi*

ABSTRACT

Two relatively recent factual elements are the basis of this Article: the 2017 revision of the United Nations’ Population Prospects, showing a world population increase of around 50% by 2100, and Turkey’s President Erdogan’s call for the Turks living in Western Europe to “have five children” in order to become the future of the continent. The statement substantiates one of the negative impacts of overpopulation—that on international relations and regional balances of power. This Article argues that (1) Erdogan’s incitement to increased procreation abroad qualifies as an internationally wrongful act of Turkey; (2) excessive procreation within national boundaries could qualify as an internationally wrongful act; and (3) although without legal consequences on the perpetrating countries, such a qualification has at least the potential of igniting a renewed debate on the issue of overpopulation. In this context, one way forward as a matter of global policy on the now- stalled debate on population is suggested.

TABLE OF CONTENTS

Introduction .......................................................................... 121 I.Part I – Excessive Fertility Rates as Internationally Wrongful

Acts ............................................................................ 124 * Ciprian N. Radavoi: Lecturer in Law, University of New England, Australia, cradavoi@une.edu.au.

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(a) Incitement to Overbreeding Abroad as Breach of International Norms ............................................. 124

(b) Overpopulation at National Level as Breach of International Norms ............................................. 126

II.Part II – A Window of Opportunity for Global Policy on Overpopulation? ......................................................... 130 (a) Main Nodes of the Debate on Overpopulation .... 130 (b) Cracks in the Spiral of Silence on

Overpopulation? .................................................. 135 (c) From Global Problem to Global Risk? ................ 141

Conclusion ........................................................................... 144

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INTRODUCTION

The 2017 revision of the United Nations’ (“U.N.”) ‘World Population Prospects’1 insists on the dramatic differences in fertility among countries and regions of the world, thus inviting further consideration of those gaps’ global impact. Built around the medium growth scenario, the study makes it clear that:

To achieve the substantial reductions in fertility projected in the medium variant, it will be essential to support continued improvements in access to reproductive health care services, including family planning, especially in the least developed countries, with a focus on enabling women and couples to achieve their desired family size.2

With the U.N.’s study as background, this Article takes as a

departure point one particular aspect of the fertility gap between nations and cultures: purposeful multiplication of an ethnic group in order to alter the demographic balance in a region at the instigation of state leaders. More specifically, the starting point of this Article is the call made in March of 2017 by the President of Turkey to the Turkish families living in Europe: “Have not just three but five children. . . . The place in which you are living and working is now your homeland and new motherland. Stake a claim to it.”3 At first sight, the right theoretical framework for analysing the presidential statement is the stakeholder theory, which, in one of

1 U.N. Dep’t of Int’l Econ. & Soc. Affairs, Population Div., World Population Prospects: 2017 Revision, Key Findings and Advance Tables, U.N. Doc. ESA/P/WP/248 (2017) [hereinafter World Population Prospects].

2 Id. at 6. 3 Raf Sanchez, Erdogan Calls on Turkish Families in Europe to Have

Five Children to Protect Against ‘Injustices’, THE TELEGRAPH (Mar. 17, 2017, 6:34 PM), http://www.telegraph.co.uk/news/2017/03/17/erdogan-calls-turkish- families-have-five-children-bulwark-against/.

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its most widely employed versions,4 posits that stakeholders5 influence an organization to varying degrees, depending on their power, legitimacy, and urgency. The organization in this case is the U.N., given their Population Division role in the governmental dialogue on population and development, and more generally given their role in preserving world peace. As stakeholders, there are the states that rely on large populations to give them leverage in the international relations, transnational corporations (“TNCs”) who need constantly-growing markets, and major religions where priests need large congregations. On the other side of the balance are stakeholders like the individuals, women especially, who naturally aim for reduced family sizes, as suggested by the U.N. in the above block quote. On the same side are also the future generations, who may ‘claim’ the right to live on a non-crowded planet, and even the natural world, increasingly aggressed by the spread of the human race. Synthesizing the irreconcilable and often short-sighted positions of the numerous stakeholders, one author purports:

Poor nations with exploding populations charge racism, colonialism, imperialism, and demand aid, but do not deal with their overpopulation, deteriorating environment, and corruption. Feminists might ascribe blame to patriarchy, racism, and lack of rights for women. Human rights advocates might uphold the principle that each woman should have the right to determine how many children she bears. Most religions prefer to see human population increase, basing

4 Ronald K. Mitchell, Bradley R. Agle & Donna J. Wood, Toward a

Theory of Stakeholder Identification and Salience: Defining the Principle of Who and What Really Counts, 22 ACAD. MGMT. REV. 853 (1997).

5 In the foundational work of the stakeholder theory, a stakeholder is defined as “any group or individual who can affect or is affected by the achievement of the organization’s objectives.” EDWARD R. FREEMAN, STRATEGIC MANAGEMENT: A STAKEHOLDER APPROACH 46 (Pitman Pub.) (1984).

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this view on ancient teachings created for another time and very different circumstances. Each one of these groups tries to define the world through their own specific special interest, losing the overall perspective.6

In this view, the stakeholder theory would lead nowhere, because all of the above-mentioned stakeholders claim legitimacy and urgency. As for power, it is rather on the side of the stakeholders who favor the status quo: major churches and the transnational corporations. This Article proposes instead a discussion confined to international law, that is, to norms on sovereignty, non-interference, cooperation and peace, and human rights.

T he remainder of the Article is built on two pillars. The first one is a doctrinal discussion based on rules of public international law, aiming to show that state actions (like in the case of the above statement of Turkey) or omissions to act (the case of states that do not tackle excessive population growth) are internationally wrongful acts in the actual circumstances of globalization and border permeability. The second pillar moves toward global public policy, showing that the findings in the first section, while not triggering legal consequences, can at least contribute to a revival of the population debate. In this context, this Article points to the nodes in the population debate, indicates the recent developments that may shake the actual spiral of silence on population, and suggests one way forward.

6 Anthony J. Cassils, Overpopulation, Sustainable Development, and

Security: Developing an Integrated Strategy, 25 POPULATION & ENV’T 171, 172 (2004).

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I. PART I – EXCESSIVE FERTILITY RATES AS INTERNATIONALLY WRONGFUL ACTS

(a) Incitement to Overbreeding Abroad as Breach of International Norms

Erdogan’s call to increased procreation by Turkish families residing in Europe, with the specific purpose to become “the future of Europe,”7 has all of the elements for being seen as an internationally wrongful act of Turkey (in addition to a breach of women’s right to dignity, since in the presidential vision, they seem to appear as mere children-producing tools). In the well-known formulation of the International Law Commission’s Draft Articles on State Responsibility, “[t]here is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.”8 Since the statement was made by the President, attribution is not a contentious matter here; the troika head of state - head of government - minister of foreign affairs is seen as representing the State of Turkey without further demonstration. As for the obligations that are breached, they are sourced in the U.N. Charter and customary law, as detailed below.

Turkey’s incitement is anything but friendly, and as such, is against the principle of good neighbourliness stipulated in the U.N. Charter’s preamble and its Article 1(2).9 Moreover, Article 2(4) prohibits “the threat or use of force against the . . . political independence of any state.”10 It is now agreed that prohibited intervention in another state’s affairs does not refer exclusively to military intervention, as such a limited interpretation “ignores the modern techniques ranging from subversion to hostile propaganda

7 Russell Goldman, ‘You are the Future of Europe,’ Erdogan Tells Turks,

N.Y. TIMES, Mar. 17, 2017, at A5. 8 Int’l Law Comm’n Rep. on the Work of Its Fifty-Third Session, U.N.

Doc. A/56/10, art. 2 (2001). 9 U.N. Charter pmbl., art. 1(2). 10 U.N. Charter art. 2, ¶5.

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that are used to undermine the internal autonomy of another State.”11 In Nicaragua v. United States of America (“Nicaragua”), the Court stated that intervention is prohibited either “directly or indirectly, with or without armed force.” 12

If not as an ‘intervention,’ Turkey’s action qualifies at least as an ‘interference,’ and the Security Council made it clear that all states should refrain from interfering in the internal affairs of others.13 The broader view on what qualifies as a prohibited intervention or interference is confirmed in the Friendly Relations Declaration, and recognized as an expression of customary law in Nicaragua, which held that armed intervention and “any other form of interference” with a state’s political, economic and cultural elements are condemned.14 The Princeton Encyclopedia of Self- Determination specifically includes alteration of the democratic political process in another country in the list of prohibited intrusions.15 In light of all these aspects, purposefully increasing an ethnic group’s proportion abroad is subversive, interferes with host states’ political and cultural affairs, and is thus prohibited by binding international norms. With the subversive intention being clearly incorporated in President Erdogan’s political statement, a hypothetical tribunal, even applying the strictest standard of proof (i.e., beyond reasonable doubt), would probably agree that Turkey’s purpose was to establish in time a democratic domination of the Turkish (now) minorities in their host countries by the power of numbers and votes, or at least to alter the cultural fabric in those countries. In the second scenario, tension and conflict would come as a natural consequence, undermining political stability.

11 Richard A. Falk, The United States and the Doctrine of

Nonintervention in the Internal Affairs of Independent States, 5 HOW. L.J. 163, 166 (1959).

12 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 206 (June 27).

13 S.C. Res. 1234, ¶ 1 (Apr. 9, 1999). 14 See G.A. Res. 25/2625 (Oct. 24, 1970); Nicar. v. U.S., 1986 I.C.J. at ¶

55 (emphasis added). 15 Michael Wood, Non-Intervention (Non-intervention in domestic

affairs), THE PRINCETON ENCYCLOPEDIA OF SELF-DETERMINATION, http://pesd.princeton.edu/?q=node/258 (last visited Sep. 13, 2017).

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(b) Overpopulation at National Level as Breach of International Norms

The above discussion on outright interference by altering the ethnic balance in a foreign country prompts an analysis of the more general case of a country flooding another one with people. This analysis was made, with no conclusive result, for the particular case of countries that provoke the flow of a large number of refugees.16 The argument for holding the home country responsible was that, by pushing its citizens out of its territory, the government is aware that the victims, qualifying as refugees, have to be accepted, kept, and looked after by states party to the 1951 Geneva Convention on Refugees, given its non-refoulment principle.17 As such, the home country affects the sovereign rights of its neighbours to decide whom they admit to their territories.18 When refugees flee in large numbers, problems beyond this breach of sovereignty arise: pressure on the economy of the host country, potentially affecting the locals’ own well-being, and tensions due to regional cultural imbalances in areas hosting most refugees.19

However, these are mostly theoretical considerations; they have not yet taken the shape of global public policy, as the perpetrating state is usually in no condition to make good for its wrongs at the moment of the crimes, being, for example, thorn by civil war like Syria currently. As for demanding compensation at a later moment in time, such a demand would create the awkward

16 See, e.g., Nafees Ahmad, Refugees: State Responsibility, the Country

of Origin and Human Rights, 10 ASIA PAC. J. HUM. RTS. & L. 1 (2009). 17 Id. at 15. 18 See Luke T. Lee, The Right to Compensation: Refugees and Countries

of Asylum, 80 AM. J. INT’L L. 532 (1986); see also Luke T. Lee, The Cairo Declaration of Principles of International Law on Compensation to Refugees, April 1992, 87 AM. J. INT’L L. 157 (1993) (showing that turning a person into a refugee is an internationally wrongful act and the United Nations High Commissariat for Refugees (“UNHCR”) can claim compensation from the home country).

19 See Executive Committee of the High Commissioner’s Programme, Standing Committee, Social and Economic Impact of Large Refugee Populations on Host Developing Countries, ¶¶ 2-14, U.N. Doc. EC/47/SC/CRP.7 (Jan. 6, 1997).

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situation that the refugees, now back in their homeland, are debtors and creditors simultaneously.20 That is, they would be owed money from the public budget, as compensation for their suffering, but they would be also contributors to that payment, as tax payers.21 Accordingly, cases are rare when the state-sources of massive refugee flows are accepted, or were forced to accept, responsibility toward the states hosting its people. Examples of these cases would include Germany after World War II and Iraq, as the result of the United Nation Security Council (“UNSC”) Resolution after the invasion of Kuwait.22

The situation discussed in this paper is similar with regard to the effects on receiving countries. Dramatic differences in fertility among countries make huge migration flows inevitable, by a mechanism that may be seen to metaphorically mirror the principle of communicating vessels from the physics of fluids.23 The economic, social, and security impacts referred to above are the same. In this case, however, it is not the action of the migrant sending countries that causes migration, but rather, their inaction: failure to tackle overpopulation. People flee from poverty, not from discrimination and abuse. A discussion on a home state’s responsibility for failing to achieve a population density optimal for life, and consequently flooding other countries with mass emigration, has not yet taken place. However, the most recent U.N. revision of the population prospects, emphasizing dramatic differences in fertility between regions of the world,24 suggests that such a discussion is timely.

20 See Ahmad, supra note 16, at 13. 21 Id. 22 Christian Tomuschat, State Responsibility and the Country of Origin,

in THE PROBLEMS OF REFUGEES IN THE LIGHT OF CONTEMPORARY INTERNATIONAL LAW ISSUES 59, 66 (Vera Gowlland-Debbas ed., 1996); see U.N. Comp. Comm’n, Provisional Rules for Claims Procedure, art. 5, U.N. Doc. S/AC.26/1992/INF.1. (Jun. 26, 1992).

23 Ferdinand J. C. M. Rath, Population Problems: A Constituent of General Culture in the 21st Century, 39 INT’L REV. EDUC. 5, 9 (1992).

24 World Population Prospects, supra note 1, at 6.

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The discussion should begin with the concept of overpopulation (“OP”), which, according to the Merriam-Webster dictionary, is “the condition of having a population so dense as to cause environmental deterioration, an impaired quality of life, or a population crash.”25 There seems to be agreement among scholars that OP is undesirable: it brings poverty26 and democratic deficits,27 lays at the origin of environmental destruction,28 and leads to conflicts over resources.29 More relevantly for this Article’s focus, OP exports tension and conflict via mass migration and the subsequent impossibility or unwillingness of integration of

25 Overpopulation, MERRIAM-WEBSTER DICTIONARY,

https://www.merriam-webster.com/dictionary/overpopulation (last visited Nov. 19, 2017).

26 See, e.g., Robert Eastwood, The Impact of Changes in Human Fertility on Poverty, 36 J. DEV. STUD. 1 (1999) (finding a positive correlation between population growth and absolute poverty); see also Martha Campbell, Return of the Population Factor: Its Impact upon the Millennium Development Goals, 315 AM. ASS’N FOR THE ADVANCEMENT OF SCI. 1501, 1501 (2007) (report of hearings by the group showing that the rapid pace of population growth in Africa and some other areas makes eradication of poverty impossible.).

27 See, e.g., Albert A. Bartlett, Democracy Cannot Survive Overpopulation, 22 POPULATION & ENV’T 63 (2000) (describing democracy loss as the dilution of voice due to addition of people in the same administrative unit); see also Carol J. Greenhouse, Democracy and Demography, 2 IND. J GLOBAL LEGAL STUD. 21 (1994) (describes yet a different type of democracy loss, i.e., rendering voiceless local populations overwhelmed by mass immigration in the U.S. and the E.U.).

28 Lester Brown, creator of World Watch Institute, said: “We can see the loss of tree cover, the devastation of grasslands, the soil erosion, the crowding and poverty, the land hunger, and the air and water pollution associated with [the] addition of people.” TYLER G. MILLER JR., LIVING IN THE ENVIRONMENT: PRINCIPLES, CONNECTIONS, AND SOLUTIONS 47 (10th ed. 1996); see also Union of Concerned Scientists, World Scientists’ Warning to Humanity, 18 POPULATION & DEV. REV. 782, 782-83 (1992).

29 See, e.g., RICHARD P. CINCOTTA et al., THE SECURITY DEMOGRAPHIC: POPULATION AND CIVIL CONFLICT AFTER THE COLD WAR (2003) (showing that the chance of civil conflict is positively correlated with the proportion of young adults, fighting for jobs and leadership, in the adult population); see also James A. Brander, Sustainability: Malthus Revisited?, 40 CAN. J. ECON. 1 (2007) (indicating overpopulation as the main cause in recent conflicts in Central Asian or African countries).

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ethnically or religiously diverse migrant populations,30 or simply as a result of terrorism being nurtured in overpopulated poor countries.31

It would appear that similar to the case of refugees, the issue

of state responsibility for highly exaggerated fertility rates could be raised. A counter-argument is that, unlike in the case of refugees, overpopulated states do not have their hands tied by the non- refoulment principle and thus can simply keep their borders closed. Such reasoning, however, does not stand in actual circumstances, as can be seen by the tens of thousands arriving yearly in Italy and Greece after crossing the Mediterranean Sea on boats, and the millions more to come.32 The problem with the causality link between the potentially wrongful act of the home country (overpopulation) and the damage to the host country (economic, social, security, etc.) does not lay in the willing acceptance of immigrants by the host, but in conceptual and factual uncertainties related to the idea of overpopulation.

As mentioned above, there is wide agreement that OP is bad,

but beyond this, there is a field of total contradiction as to when in fact a country experiences OP, and as to whether any action against OP is legally and morally permissible. If a country can do nothing to tackle OP within its borders, then, taking into account that it is also barred from forcibly keeping its people inside, its responsibility toward other countries or toward the international society as a whole cannot be established. These matters are the object of the next section, conceived as a brief literature review underlying areas of

30 See, e.g., Rath, supra note 23 (showing that international overflows of population can lead to fear of losing identity among host populations, and from here, to xenophobia); see also Jack A. Goldstone, Population and Security: How Demographic Change Can Lead to Violent Conflict, 56 J INT’L AFF. 4, 13-14 (2002) (explaining clashes between locals and immigrants on economic resources and cultural identity).

31 Cassils, supra note 6, at 187. 32 Justin Huggler, Up to 6.6m Migrants Waiting to Cross to Europe from

Africa: Report, THE TELEGRAPH (May 23, 2017, 5:53), http://www.telegraph.co.uk/news/2017/05/23/66m-migrants-waiting-cross- europe-africa-report/; see also Mediterranean Situation, U.N. HIGH COMM’R FOR REFUGEES, http://data2.unhcr.org/en/situations/mediterranean.

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disagreement and pointing to some recent evolutions in the for-now- stalled debate on overpopulation.

II. PART II – A WINDOW OF OPPORTUNITY FOR GLOBAL POLICY ON OVERPOPULATION?

(a) Main Nodes of the Debate on Overpopulation

The first area of academic disagreement regards the present and concerns the threshold over which we should speak about OP. It has been shown that humans have always had a somewhat irrational fear of not becoming too many.33 Accordingly, numerous authors ridicule those who today raise the spectre of OP in a panicked manner.34 These authors argue that there is no such thing as OP, it is just the land not being judiciously used, with huge areas left uninhabited while people rush to the big cities.35 Other authors point to overconsumption (“OC”), and not overpopulation, as the problem, if sustainability is seen in a global perspective. It was argued, for example, that with one child in the United Kingdom using as many resources as twenty-two in Malawi,36 scholars and academics in the Global North have no moral right to raise the issue

33 See Bart K. Holland, A View of Population Growth Circa AD 200, 19 POPULATION & DEV. REV. 328 (1993) (see Tertullian warning some eighteen centuries ago that populations had grown to the extent that they are becoming burdensome to Earth).

34 See Michael Balter, The Baby Deficit, 312 SCIENCE 1894 (2006) (stating that the population bomb “wasn’t” and the real issue is, on the contrary, the danger of under-population); Kai Nielsen, Global Justice, Capitalism and the Third World, 1 J. APPLIED PHIL. 175 (1984) (arguing that “[t]he principle problem is not overpopulation . . . but man-made problems”); Amartya Sen, Fertility and Coercion, 63 U. CHICAGO L. REV. 1035, 1044 (1996) (showing among other arguments that we should leave the population matter to “the responsible reflection of people themselves”). But see Brander, supra note 29, at 6 (noting that most academics writing about population live in areas with low fertility, which bars them from seeing the issue in a global perspective).

35 This argument is centuries old: Engels believed that “it is absurd to talk of over-population so long as there is enough waste land of Mississippi for the whole population to be transplanted there.” See Friedrich Engels, Outline of a Critique of Political Economy, in 3 MARX AND ENGELS: COLLECTED WORKS 418, 440 (Lawrence & Wishart, 2010).

36 Blake Alcott, Population Matters in Ecological Economics, 80 ECOLOGICAL ECON. 109, 114 (2012).

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of OP in developing countries: not while their own countries continue to put pressure on global ecosystems.37 From the other side of the population debate, it is argued that OP does not mean a condition so bad as to lead to physical extinction, but just so bad as to affect the general quality of life.38 In the word of one author:

[T]here are relevant costs [of OP] short of human starvation: poverty, crime, lack of health care, hunger, global warming, overfishing, sprawl, ground-level ozone pollution, traffic jams, endangered species, the spread of infectious disease, overcrowding in schools, the unavailability of clean drinking water, destruction of wetlands, holes in the ozone layer, and shortages of oil.39

Moreover, the argument of geographical redistribution does not stand today, because all areas with carrying capacity are already inhabited.40 As for the ‘OC versus OP’ discussion, it should rather be treated as the ‘OC and OP’ problem: overconsumption in the Global North and overpopulation in some areas of the Global South

37 See, e.g., George Monbiot, Stop Blaming the Poor: It’s the Wally-

yachters Who Are Burning the Planet, THE GUARDIAN (Sept. 28, 2009), https://www.theguardian.com/commentisfree/cif-green/2009/sep/28/population- growth-super-rich.

38 See, e.g., Martin P. Golding MP & Naomi H. Golding, Ethical and Value Issues in Population Limitation and Distribution in the United States, 24 VAND. L. REV. 495, 498 (1970) (“What is at stake is not the survival of the species, but rather the survival, or realization, of a way of life.”); see generally Jesper Ryberg, The Argument from Overpopulation: Logical and Ethical Considerations, 19 POPULATION & ENV’T 411 (1998) (discussing optimal populations).

39 Sarah Conly, The Right to Procreation: Merits and Limits, 42 AM. PHIL. Q. 105, 111 (2005).

40 Population-Environment Balance, Inc., Why Excess Immigration Damages the Environment, 13 POPULATION & ENV’T 303, 304 (1992).

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equally affect sustainability. Reducing consumption is only possible to some extent, and it is also likely that hundreds of millions in the developing world, when reaching the middle-class level, will naturally aim for consumption levels now common by the Western world’s middle class.41 In the end, therefore, numbers do matter, and tackling OC alone cannot resolve the problems. As a famous agronomist warned upon receipt of the Nobel Peace Prize half a century ago: “If fully implemented, the [green] revolution can provide sufficient food for sustenance during the next three decades. But the frightening power of human reproduction must also be curbed; otherwise the success of the green revolution will be ephemeral only.”42

The second area of disagreement pertains to the future and concerns the uncertainty as to whether OP is even likely. Those betting on a lower growth scenario rely on the well-known ‘demographic transition theory’ (“DTT”), which posits that with economic development come lower fertility rates due to the action of various mechanisms, such as lower economic incentives for procreation, higher ages at which the first child is conceived, better education, and gender equality.43 But, on the other hand, the DTT has been challenged in recent decades with various arguments.44 Moreover, the DTT-skeptics believe that “[t]o hold out hope in the theory of ‘demographic transition,’ where population growth stops only when per capita income and consumption reaches a respectable level, is to court disaster (imagine China [1.3 billion] or India [1.25

41 Id. at 303 (noting that “every person, however conservative, adds to

the environmental burden”). 42 Norman Borlaug, Nobel Lecture—The Green Revolution, Peace, and

Humanity, THE NOBEL PEACE PRIZE (Dec. 11, 1970) (transcript on file with Nobel Media).

43 See generally ROBERT WOODS, THE DEMOGRAPHY OF VICTORIAN ENGLAND AND WALES 18-19 (2000).

44 See, e.g., Cassils, supra note 6 (showing that in Europe, demographic decline was achieved not in times of prosperity, but in the harsh economic years in the 1920s and 1930s); Andrey Korotayev & Julia Zinkina, East Africa in the Malthusian Trap?, 31 J. DEVELOPING SOC’YS. 385 (2015) (showing that in order for the DTT to work, countries need first to lower their fertility rates under a certain level).

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billion] where nearly every family owns a car, a refrigerator, an air conditioner).”45

Some of the optimists also believe that with population

increasing, so does the necessity to innovate.46 Also on the side of the optimists is the common sense argument that higher population increases the pool of potential geniuses of tomorrow, who in turn will find the technological solutions for accommodating more people on Earth (e.g., better agricultural efficiency or improved urbanism). The pessimists, however, counter-argue that high population growth rates dissipate the surplus that might otherwise support investment in research and development, bringing as argument the evidence that in recent decades, the most technological progress has originated in regions with the slowest growing populations.47

Finally, a third issue that has stirred fevered debates is

whether states are legally allowed to do anything about OP, even if we agree that OP is present or highly likely. The discussion here concerns the balance of rights. Is there an overriding public interest justifying limitations of reproductive rights?48 Are reproductive rights susceptible to limitations in the first place?49 Those who answer “no” sometimes rely on the sanctity of these rights—as

45 Robert Chapman, No Room at the Inn, or Why Population Problems

Are Not All Economic, 21 POPULATION & ENVT’L L.J. 81, 86 (1999). 46 See generally ESTER BOSERUP, POPULATION AND TECHNOLOGICAL

CHANGE: A STUDY OF LONG-TERM TRENDS (1981) (claiming a positive correlation between population growth and technological creativity, explained by, inter alia, the fact that the former leads to scarcity, which in turn induces communities to find new solutions to deal with diminishing natural resources).

47 Brander, supra note 29, at 20. 48 See, e.g., Carter J. Dillard, Rethinking the Procreative Right, 10 YALE

HUM. RTS. & DEV. L.J. 1, 3 (2007) (asking whether procreation is “in all circumstances just . . . without being subject to law and regard for others”).

49 See Alcott, supra note, at 36, for a discussion on derogability (or lack thereof) from the reproductive rights. See JA Robinson, Provisional Thoughts on Limitations to the Right to Procreate, 18 POTCHEFSTROOM ELEC. L. J. (2015), for a legal analysis of the issue in the South African context.

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freedoms touching upon the most intimate aspects of our lives.50 Cultural rights are at stake, as well, since some cultures traditionally value large families.51

On the contrary, those who believe that reproductive rights

can be limited find ammunition in the very definition of the reproductive rights, constantly referred to, in all of the international instruments of the last half a century, as the right of couples to decide ‘freely and responsibly’ the number of their children.52 ‘Responsibly’ means considering the others’ right to not live in an overcrowded world, and to this end, a cap of two or three children per family is acceptable, since the right to parenthood was already fulfilled with the first child.53 Those who claim the couple’s inalienable right to choose how much to procreate54 are also pointed at as hypocritical since the term ‘couple’ in most of the areas where overpopulation is a problem means, in fact, ‘the male,’ as husband,

50 Alcott, supra note 36, at 115 (“[D]irectly limiting the number of people

born at all, touching as it does on human intimacy and evolution, is a stark limitation of freedom.”).

51 See generally E. A. Hammel, A Theory of Culture for Demography, 16 POPULATION & DEV. REV. 455 (1990); see also Rath, supra note 23 (showing how cultural underpinnings of high fertility rates can be countervailed by education).

52 See Stan Bernstein, The Changing Discourse on Population and Development: Toward a New Political Demography, 36 STUD. FAM. PLAN. 127 (2005) (provides an overview of the major conferences on population, the concept’s evolution, and the various policies undertaken at different stages of global understanding of the ‘overpopulation versus reproductive rights’ balance).

53 See, e.g., Conly, supra note 39; Chapman, supra note 45; see also CHRISTINE OVERALL, WHY HAVE CHILDREN: THE ETHICAL DEBATE 180-84 (MIT PRESS 2012) (arguing to uphold a basic right of two children per couple); see also Carol S. Robb, Liberties, Claims, Entitlements, and Trumps: Reproductive Rights and Ecological Responsibilities, 26 J. RELIGIOUS ETHICS 283, 294 (1998) (speaking of “moral disapproval of fertility above replacement rate”); see generally Elisabeth Cripps, Climate Change, Population, and Justice: Hard Choices to Avoid Tragic Choices, 8 GLOBAL JUST. 1 (2015).

54 See SONIA CORREA & REBECCA REICHMANN, POPULATION AND REPRODUCTIVE RIGHTS: FEMINIST PERSPECTIVES FROM THE SOUTH 66 (1994) (showing that “[r]eproductive rights are human rights which are inalienable and inseparable from basic rights such as food, shelter, health, security, livelihood, education, and political empowerment”).

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father, or priest.55 As for a claim to the cultural right of having a large family, it was shown that high fertility in certain areas is most often neither an exercise of rights nor a reaction to economic needs, but simply an inertial perpetuation of socially transmitted, learned traits, which can and should be unlearned.56

With so many sensitive variables and irreconcilable views,

it is no wonder that the debate was put on hold at the U.N., as detailed in the following subsection. Recent events, however, in addition to the aforementioned statement of Turkey, suggest that some stakeholders may have sensibly altered their views, thus providing a window of opportunity for reopening the discussion on OP.

(b) Cracks in the Spiral of Silence on Overpopulation?

The aversion of politicians and policy makers at the U.N. to approaching the population growth issue in the last two decades was noted by many scholars. It was shown, for example, that the United Nations Environmental Program (“UNEP”) deals with everything but population,57 and that “neglect of human population size is indeed widespread.”58 One author bluntly stated that “the United Nations . . . does not want debate.”59 Symptomatically, the Millennium Development Goals adopted in 2000 completely

55 See Lynn P. Freedman & Stephen L. Isaacs, Human Rights and

Reproductive Choice, 24 STUD. IN FAM. PLAN. 18, 19 (1993) (advocating a woman-centered approach to reproductive rights, and speaking in this context about “the specific situations of dependency, discrimination, and fear that women face” in some developing countries); see also Tomris Türmen, Reproductive Rights: How to Move Forward?, 4 HEALTH & HUM. RTS. 31, 33 (2000).

56 Bobbi S. Low, Alice L. Clarke & Kenneth A. Lockridge, Toward an Ecological Demography, 18 POPULATION & DEV. REV. 1 (1992).

57 Paul Erlich, Demography and Policy: A View from Outside the Discipline, 34 POPULATION & DEV. REV. 103, 107 (2008).

58 Alcott, supra note 36, at 116. 59 Stan Bernstein, The Changing Discourse on Population and

Development: Toward a New Political Demography, 36 STUD. FAM. PLAN. 127, 129 (2005).

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ignored the issue.60 Asking in her article titled “Why the Silence on Overpopulation?,” one author answers:

The 1994 United Nations International Conference on Population and Development (ICPD, or “Cairo”) was the turning point in removing the population subject from policy discourse. The important difference between ICPD and the previous decadal UN population conferences was its emphasis on drawing attention to the needs of women around the world. In the run- up to ICPD and following the two- week conference in Cairo, talking about population became politically incorrect in many circles. Drawing attention to any connection between population and the environment became taboo -- again, because it was viewed, or promoted, as disadvantageous to women.61

This author’s response is but one explanation. Others may have to do with troubling memories from the disastrous population

60 G.A. Res. 55/2, United Nations Millennium Declaration (Sept.

18, 2000). 61 Martha Campbell, Why the Silence on Population? 28 POPULATION &

ENV. 237, 241 (2007); see also Robert Engelman, Population, Climate Change and Women’s Lives, 183 WORLDWATCH REP. 1, 5 (2010) (showing that “[a]lthough many policymakers would welcome slower population growth, there is a concern that policies to slow growth will violate the right of couples to determine their own family size”).

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policies put in place in countries like India62 or Peru63 in the second half of the last century, or with the developing countries’ accusations of Western cultural and demographic imperialism.64 Also, the conservative (Christian and Islamic) religious lobby is indicated by some authors as a main inhibitor of debate at the UN.65 But regardless of its causes, the spiral of silence built around OP is a fact, and it is this Article’s claim that recent developments should shake it. To look first at the pretext of this paper—Erdogan’s statement—how should an aggressive, unacceptable statement by a head of state, inciting its supposed followers to multiply excessively in another country, contribute to breaking this spiral of silence? The answer is embodied in the question: by being aggressive and unacceptable in light of norms of civility in international relations.

In a non-academic expression: the ostrich policy may work

when all is silent above the ground, but should come to an end if the ostrich is kicked in the rear. Erdogan’s statement touches upon one of the most sensitive issues associated with overpopulation: regional security threats, following internal conflict or mass migration.66

62 See generally Davidson R. Gwatkin, Political Will and Family

Planning: The Implications of India’s Emergency Experience, 5 POPULATION DEV. REV. 29 (1979).

63 See generally Anna-Britt Coe, From Anti-Natalist to Ultra- Conservative: Restricting Reproductive Choice in Peru, 12 REPROD. HEALTH MATTERS 56 (2004).

64 See, e.g., Bahati Kuumba, Population Policy in the Era of Globalisation: A Case of Reproductive Imperialism, 16 AGENDA: EMPOWERING WOMEN FOR GENDER EQUITY 22 (2001) (critiquing Western policies).

65 See generally Rosalind Pollack Petchesky, From Population Control to Reproductive Rights: Feminist Fault Lines, 3 REPROD. HEALTH MATTERS 152, 159 (1995) (pointing to the “unusual alliance among, the Vatican, its client states, and some Middle Eastern governments”); see also Brander, supra note 29, at 6 (listing religious sensitivities as hurdles that population debates need to side-step, in recent times of religious radicalization).

66 The positive correlation between population growth and the propensity of civil conflict was demonstrated in numerous studies. See, e.g., Markus Brückner, Population Size and Civil Conflict Risk: Is There a Causal Link? 120 ECON. J. 535 (2010); Henrik Urdal, Population, Resources, and Political Violence, A Subnational Study of India, 1956–2002, 15 J. CONFLICT RESOL. 590 (2008).

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While it is morally improper to hold a failed state responsible for being a source of mass emigration, and it is practically difficult with a state that quietly promotes policies of cultural invasion, none of these scenarios are the case here. A positive measure aimed at altering the ethnic and cultural balance in another country, publicly announced by the head of a state with aspirations to join the European Union, amounts to an internationally wrongful act as shown above, and thus should at least prompt a serious international debate on the issue of overpopulation.

Other recent developments also indicate that the time may

be ripe for an honest debate on overpopulation. A recent position issued by the Vatican calls for couples to refrain from procreation unless they can bring up their children properly,67 which comes in stark contrast with centuries old teachings on the blessings of having large families. Pope Francis’s ‘unorthodox’ position is not accidental, but in line with previous views indicating more flexibility on reproductive matters in the broader framework of fighting poverty in the developing world.68

A look at the views expressed by the other major global

religion in terms of number of adherents—Islam—also shows encouraging signs. A quick online search produced several policies in countries of Islamic faith, such as Pakistan, Niger, Iran, and Uganda, recommending a maximum of four children per family.69 Admittedly, an average of four children per family is still almost

67 Jan Bentz, Pope Has Urged Having Fewer Children if ‘You Cannot

Bring Them Up Properly’, LIFESITE NEWS (Mar. 3, 2017, 8:30 AM), https://www.lifesitenews.com/news/francis-praised-by-population-controller-at- vatican-workshop-for-urging-us.

68 Claire E. Brolan & Peter S. Hill, Sexual and Reproductive Health and Rights in the Evolving Post-2015 Agenda: Perspectives from Key Players from Multilateral and Related Agencies in 2013, 22 REPROD. HEALTH MATTERS 66, 67 (2014) (citing an interviewee from the U.N.).

69 Law Pertaining to Population and Family Planning of 23 May 1993 (Iran); Pakistan Population Policy (2010), MINISTRY OF POPULATION AND WELFARE; Déclaration de Gouvernement en Matière de Politique de Population (2007), Gov’t of Niger; National Population Policy for Social Transformation and Sustainable Development (2008), MINISTRY OF FIN., PLANNING & ECON. DEV. (Uganda).

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double the replacement fertility rate,70 but the fact that Islamic leaders are at least willing to mention a cap is more than the new U.S. administration would do—see the recent cancellation of funds for the United Nations Population Fund (“UNFPA”) motivated by unsubstantiated claims that UNFPA supports forced abortions in China.71 In fact, even Turkey’s President exhibits acceptance of the idea that excessive population growth is bad as he makes a clear distinction between what he sees desirable at home and abroad in terms of family size. While for Turks abroad he encourages a minimum of five children, as seen above, for home he only suggests three,72 which seems like an acceptable limit if we consider the larger context of family sizes and population planning in countries of the Muslim religion.

We should not conclude the brief overview of recent

developments on the religions’ views without putting them in their historical context. The wider leeway for reinterpretation and change in Islam, compared to the Christian Church, permitted leaders like Iran’s Khomeini, Egypt’s Mubarak, or Tunisia’s Bourguiba to promote in the recent past successful population policies.73 These policies reduced the fertility rate under three children per woman, without the abuse that accompanied similar efforts in countries like Peru or India.74 It is perhaps exactly this lack of a monolithic

70 The U.N. indicates 2.1 children per woman as the replacement rate.

See World Population Prospects, supra note 1, para. 16. 71 Nurith Aizenman, Citing Abortions In China, Trump Cuts Funds For

U.N. Family Planning Agency, NPR (Apr. 4, 2017, 4:16 PM), http://www.npr.org/sections/goatsandsoda/2017/04/04/522040557/citing- abortions-in-china-trump-cuts-funds-for-u-n-family-planning-agency.

72 Sara Malm, President Erdogan Urges Turkish Women to Have at Least Three Children, THE DAILY MAIL (June 6, 2016, 4:59 PM), http://www.dailymail.co.uk/news/article-3627087/President-Erdogan-urges- Turkish-women-three-children-tells-lives-incomplete-without-babies.html.

73 Gioetta Kuo, MegaCrisis? Overpopulation Is the Problem, 4 WORLD FUTURE REV. 23, 26 (2012); Population Council, President Hosni Mubarak on Egypt's Population, 34 POPULATION & DEV. REV. 583 (2008); Freedman & Isaacs, supra note 55, at 27-28 (“[U]nder the strong personal guidance of President Bourguiba, Tunisia was able to . . . abolish polygyny, and to permit abortion during the first trimester.”).

74 Gwatkin, supra note 62; Coe, supra note 63.

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understanding of the Islamic rules that allowed these leaders to navigate smoothly in the waters of tempering population growth. Similarly, the rigidity of the Christian rules led to more radical, sort of ‘all or nothing’ approaches by policy makers in countries where the Christian religion intermingles with state business (to be noted, again, that the United States seems to have recently joined this club, since one of the first priorities of President Donald Trump’s Administration was toughening the abortion rules75).

The above changes in some stakeholders’ positions are indicated by their statements or actions but more changes can be detected in the international community’s silent acceptance of a major recent demographic event, such as China’s two-children policy announced in 2015.76 The previous one-child policy, launched in 1978, was met with ferocious criticism in the Western human rights discourse and led to radical measures like the U.S. repeatedly cancelling its contributions to United Nations Fund for Population Activities (“UNFPA”), based on allegations that it supported China’s policy.77 Now, the two-children policy is accepted without reaction, which is strange. After all, a cap is abusive, regardless of the number. The lack of Western reaction to the two-children policy must have a reason. Either times have changed since 1978 and the world has come to realize that something must be done to curb OP, or a cap is acceptable in

75 In January of 2017, in his first week in the Office, the President signed

an order banning funds for groups that support or even provide information about abortion. See Trump’s Order on Abortion Policy: What Does It Mean?, BBC NEWS (Jan. 24, 2017), http://www.bbc.com/news/world-us-canada-38729364, for measures impacting on international policy. See Jill Filipovic, Trump’s New Birth Control Rule Is a Deliberate Move to Hold Back Women, COSMOPOLITAN (Jun. 2, 2017), http://www.cosmopolitan.com/politics/a9961534/birth-control- mandate-women-contraception-trump/, for measures impacting women’s freedom of choice at home.

76 Chris Buckley, China Ends One-Child Policy, Allowing Families Two Children, N.Y. TIMES, Oct. 30, 2015, at A1.

77 See China’s One-child Controversy Reignites, THE WASH. TIMES (Feb. 18, 2009), http://www.washingtontimes.com/news/2009/feb/18/family- planning-funding-spotlights-china/ (Presidents Reagan and Bush (and now Trump) have cut the funds to UNFPA–while presidents Clinton and Obama restored the funding.).

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principle, but the cap of one child was too restrictive. Notably, the cap of two is also suggested by a recent change in the United Kingdom’s child tax credit policy. From April of 2017, a family can claim child tax credit, which is worth up to £2,780 per child each year, only for the first two children.78

The events noted above are obviously not of a magnitude to prompt a radical change in the discourse on OP, but could become ‘pull’ (the openness of some stakeholders) and ‘push’ (the aggressiveness of Turkey) factors for academics and policy makers to re-assess the population problem. In order to avoid the debate going to the same dead end as before, like the one of unclear OP threshold and uncertain future demographic evolutions, this Article proposes reconceptualising OP as global risk. Global policy is generally understood to be motivated by a distinct ‘policy problem,’ namely “a set of circumstances that can be potentially improved upon with purposeful action.”79 Global policy problems:

[C]an be distinguished from those that are merely national . . . on the basis of two criteria which normally go hand in hand. First, the problem has aroused concern throughout much of the world. Second, it has been, or can be expected to be, taken up by one or more international institutions, such as the United Nations.80

Concern with OP has indeed been aroused throughout much of the world. Even in Europe, where the intuition tells us that people

78 Patrick Knox, Making Ends Meet: What are the child tax credit changes 2017, what benefits can I claim and who is eligible?, THE SUN (April 6, 2017, 11:45 AM), https://www.thesun.co.uk/money/3268826/child-tax-credit- changes-april-2017-cuts/.

79 Marvin S. Soroos, A Theoretical Framework for Global Policy Studies, 11 INT’L POL. SCI. REV. 309, 311 (1990).

80 Id.

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should be rather concerned with under-population given the low fertility rates,81 a quarter of the citizens indicate population growth as a major global risk; significantly, the proportion is higher among educated interviewees.82 However, for the reasons shown above, the U.N. cannot be expected to take up OP as a global policy problem. In fact, in recent policies, instead of striving for solutions to tackle the global problem of population growth, the U.N. calmly recommends migration as a solution for decongesting crowded areas, thus in fact encouraging further increase in procreation rates.83 Could this change if we conceptualize OP as a global risk? The theory of the world risk society maintains that modern societies are shaped by new kinds of self-generated (as opposed to the older) risks,84 such as high-risk modern technologies (nuclear energy and genetic engineering), new types of environmental and health problems (global warming, worldwide pandemics), new forms of transnational terrorism, and systemic risks of the global economy and finances.85 The new global risks are characterized by three features: delocalization, incalculableness (hypothetical risks, based

81 From nearly 8 million births in 1964, the number declined

continuously until 1995, when it stabilized somewhere around 5 million births per year. See Number of Live Births, EU-28, 1961–2015 (million) YB17, EUROSTAT STATISTICS EXPLAINED (Mar. 7, 2017), http://ec.europa.eu/eurostat/statistics- explained/index.php/File:Number_of_live_births,_EU- 28,_1961%E2%80%932015_(million)_YB17.png.

82 Report of the Directorate-General for Communication on Europeans’ Attitudes Towards Climate Change, at 33 (2009), http://ec.europa.eu/commfrontoffice/publicopinion/archives/ebs/ebs_313_en. Pdf.

83 See Rep. on Integrating Population Issues into Sustainable Development, Including the Post-2015 Development Agenda, U.N. Dept. Of. Econ. & Soc. Affairs, U.N. Doc. ST/ESA/SER.A/364 (2015). But see Cassils, supra note 6, at 175 (noting that countries that are leading in reducing their populations should not give in to the advocates of growth by allowing massive immigration; this notion rewards those who multiply irresponsibly).

84 See generally ULRICH BECK, RISK SOCIETY (Sage Publ’n trans., 1992). 85 EDGAR GRANDE, Global Risks and Preventive Governance, in

HUMANITY AT RISK: THE NEED FOR GLOBAL GOVERNANCE 19 (Daniel Innerarity & Javier Solana eds., 2013).

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on science-induced not-knowing and normative dissent), and non- compensability.86 It has been shown above that the first two features apply to OP. As for non-compensability, in the context of the already- recognized new risks, it means, for example, that if the climate has changed irreversibly, if progress in human genetics makes irreversible interventions in human existence possible, if terrorist groups already have weapons of mass destruction, then it is too late. The compensation logic, that is, post-factum reaction and adaptation, does not apply. But this seems to be the case with OP, as well. How will humanity adapt to not having enough resources to feed, for example, 20 billion people, other than by violently and suddenly reducing numbers, or breaking borders into other states? What was already accepted in the field of climate change, i.e., we are past mitigation and we should gradually move to adaptation, will not apply then, at least not in a peaceful manner, but in a ‘survival of the fittest’ scenario.

Once OP is included on the list of new global risks, an agreement on a maximum world population should be discussed, similarly to what happened in the field of carbon emissions. This global total87 can be translated into a population cap per couple, which in the beginning could be high enough to not encounter significant resistance from the stakeholders traditionally favouring high populations (churches, corporations, and the like). Even though without real demographic impact, it would gradually craft acceptance for the idea that there is a limit to population growth. From here, already-proposed technical solutions could be applied— the tradable procreation rights scheme suggested first by the British

86 ULRICH BECK, Living in and Coping with a World Risk Society, in

HUMANITY AT RISK: THE NEED FOR GLOBAL GOVERNANCE 12, 13 (Daniel Innerarity & Javier Solana eds., 2013).

87 Interestingly, this global maximum was found, not long ago, to be 2 billion. See David Pimentel et al., Natural Resources and an Optimal Human Population, 15 POPULATION & ENV. 347 (1994).

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economist Kenneth Boulding,88 and refined in recent years.89 A global convention on overpopulation, modelled after the United Nations Framework Convention on Climate Change (“UNFCC”),90 could detail the technicalities of a global version of this scheme, so that the rights left unused in the developed world can be transferred to other countries.

CONCLUSION

This Article had as departure point relatively recent events relevant to the debate on the limits to population growth. Focusing on statements made earlier this year by the President of Turkey, it discussed the impact of exaggerated fertility rates of one immigrant group, when they are incited by the leadership of their country of origin, with declared political purposes, to multiply excessively. Zooming out, this Article embraced more generally the situations in which high fertility rates lead to mass emigration. In both cases, albeit more clearly in the first, the country of origin can be the subject of a claim of interference and breach of neighbors’ sovereignty. For the second, more general case, the discussion remains speculative, mainly because the idea of limiting the population growth is a taboo matter in international policy circles, for subjective and objective reasons. As a result, there is no legal obligation for a country to stabilize its population. Therefore, even if in a particular case mass immigration in one country can be attributed to overpopulation in another country, a claim against the latter would be unsuccessful. This Article, however, spotted recent evolutions that suggest a more flexible attitude of stakeholders in the population debate:

88 KENNETH E. BOULDING, THE MEANING OF THE TWENTIETH CENTURY

135-36 (1964). 89 See David de la Croix & Axel Gosseries, Population Policy Through

Tradable Procreation Entitlements, 50 INT’L ECON. REV. 507 (2009) (addressing the issue in an international perspective dealing with both over and under population).

90 United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107.

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representatives of major religions and the Western human rights lobby. Taken together with the bellicose position of Turkey’s president, these suggest a window of opportunity for global policy makers who are preoccupied by overpopulation. Turkey’s aggressive stance could be a ‘push’ factor for a renewed debate, while the other elements could be ‘pull’ factors, in the sense that they are somehow inviting discussion and analysis, perhaps with new arguments. With respect to these new arguments, this paper suggested that to avoid the dead end in which the overpopulation debate was abandoned some two decades ago, global policy makers could re- conceptualize OP as global risk, which would justify a preventative approach. If OP is found to present the traits of a global risk, then countries with excessive fertility rates could be persuaded to assume population stabilization, in its non-coercive variant and perhaps in cooperation with the international community, as an internationally- binding obligation.

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