Sydney Law School Legal Studies Research Paper No. 09/107
Climate Change, Conflict and Security: International Law Challenges Ben Saul This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1485175.
Electronic copy available at: http://ssrn.com/abstract=1485175
Climate Change, Conflict and Security: International Law Challenges Ben Saul * Alarming predictions have been made about the potential for climate change to fuel war and other forms of violent conflict. 1 At the extreme end, it has been suggested that the uncontrolled effects of climate change could generate conflicts on the scale of the world wars but lasting for centuries. 2 Another study suggests that 46 countries with 2.7 billion people are at high risk of violent conflict due to climate change interacting with existing underlying causes of conflict, while a further 56 countries with 1.2 billion people are at high risk of political instability possibly leading to violent conflict in the longer term. 3 Growing concern about the security risks posed by climate change has emerged in major global institutions such as the United Nations Security Council and in the European Union. 4 National militaries have increasingly begun to conceptualise climate change as a national security threat, 5 while proponents of the ‘human security’ approach have sought to recast climate change as a critical source of global insecurity. 6 In a related fashion, the threat posed by climate change to human rights is attracting great interest. 7 *
Director, Sydney Centre for International Law, Faculty of Law, University of Sydney. Versions of this paper were presented at the Indian Society of International Law Conference in Delhi on 8-9 December 2007, the Armed Forces Law Association of New Zealand and University of Canterbury Conference in Christchurch on 6 April 2008, and as the Asian Law Institute Conference in Singapore on 22 May 2008. 1 See, eg, John Podesta & Peter Odgen, ‘The Security Implications of Climate Change’ (2008) 31 The Washington Quarterly 115; Gwynne Dyer, Climate Wars (Scribe, Melbourne, 2008); Dan Smith and Janani Vivekananda, A Climate of Conflict: The Links between Climate Change, Peace and War (International Alert, London, 2007) (‘International Alert’); Nick Mabey, ‘Delivering Climate Security: International Security Responses to a Climate Changed World’ (2007) 69 Whitehall Papers 1; Kurt Campbell et al, ‘The Age of Consequences: The Foreign Policy and National Security Implications of Global Climate Change’, Center for Strategic and International Studies, Center for a New American Security, November 2007; German Advisory Council on Global Change: Summary for Policy Makers, ‘World In Transition: Climate Change as a Security Risk’, May 2007; Cleo Paskal, ‘How Climate Change Is Pushing the Boundaries of Security and Foreign Policy’, Energy, Environment and Development Programme, June 2007, Doc. No. EEDP CC BP 07/01; Ben Wisner et al, ‘Climate Change and Human Security’, Peace Research and European Security Studies, April 2007; International Institute for Strategic Studies, Strategic Survey 2007, London; Alan Dupont and Graeme Pearman, Heating up the Planet: climate change and security (Lowy Institute Paper 12, 2006). 2 Mabey, ibid, 2. 3 International Alert, op cit. 4 ‘Security Council Holds First-Ever Debate on Impact of Climate Change on Peace, Security, Hearing over 50 Speakers’, UN Security Council, SC/9000, Department of Public Information, United Nations, 17 April 2007; High Representative and the European Commission to the European Council, ‘Climate Change and International Security’, March 2008, Doc. No. S113/08. 5 ‘Pentagon tells Bush: climate change will destroy us’, The Observer, 22 February 2004; Australian Defence Forces, ‘Joint Operations for the 21st Century’ at <www.defence.gov.au/publications/FJOC.pdf>; Tom Allard, ‘Climate threat in military’s sights’ Sydney Morning Herald, 17 May 2007; Australian Defence Forces, Climate Change, The Environment, Resources and Conflict, November 2007, reported in ‘Defence warns of climate conflict’, Sydney Morning Herald, 7 January 2009. 6 See, eg, Greek Chairmanship of the Human Security Network, International Conference on Climate Change and Human Security, Athens, May 2008. 7 Office of the United Nations High Commissioner for Human Rights, ‘The Human Rights Impact of Climate Change’, UN Joint Press Kit for Bali Climate Change Conference, 3-14 December 2007: <www.un.org/climatechange/pdfs/bali/ohchr-bali07-19.pdf>; Australian Human Rights and Equal Opportunity Commission, Climate Change and Human Rights: Background Paper, Sydney, 2008:
1 Electronic copy available at: http://ssrn.com/abstract=1485175
While there has been much consideration of the political and strategic implications of climate change as a key security risk, to date far less attention has been devoted to thinking about whether and how general international law is relevant to addressing the risks posed by climate change to international security. This article first charts the likely security risks arising from the effects of climate change, including traditional security threats (such as armed conflict) and non-conventional or ‘human security’ risks (particularly as regards access to resources – food, water, energy – that are essential to human dignity). The article then examines the spectrum of international law implications of the relationship between climate change and these forms of insecurity. In particular, it considers how different specialised branches of international law might be deployed to address the various risks, in both preventing and responding to those risks. Possible Security Impacts of Climate Change Over time, the direct physical effects of climate change (some of which are already manifesting) are likely to include more extreme weather events (such as storms, floods, droughts); the melting of glaciers; desertification; rising sea levels and salination of land; and higher temperatures. 8 In the past two decades alone, there has been an increase from 200 to 400 major disasters per year. 9 These immediate impacts of climate change will be felt differently in different places. Some developing States will be particularly affected by climate change, because of both geographic vulnerability and their relative inability to easily adapt to the negative effects. In various places, the direct physical effects of climate change are likely to detrimentally impact on the conditions essential for maintaining basic human dignity. First, increasing food insecurity is likely to result from factors such as higher temperatures, changing weather patterns and seasonal monsoons, water scarcity, shorter agricultural growing seasons, and the acidification of the oceans impacting on the sustainability of (already stressed) global fish stocks. Already there are 850 million people malnourished worldwide. Yet the price of staple foods has increased by 80% over the past three years 10 and it is estimated that 100 million people have been pushed into poverty in the last two years alone due to rising food (and energy) prices. 11 In India, for example, rice and wheat production has declined due to temperature increases, affecting food security in an agriculturally-dependent and underdeveloped country. The World Bank estimates that 33 countries are at risk of political destabilisation and internal conflict due to food price inflation, 12 while 36 countries with 1.4 billion people are at risk of food or water scarcity by 2025. 13 The problem is aggravated by a turn towards protectionism in some countries, with recent bans on the export of staple foods in some producer countries, aggravating shortages and price rises in net import countries. <www.hreoc.gov.au/pdf/about/media/papers/hrandclimate_change.pdf>; Sara Aminzadeh, ‘A Moral Imperative: The Human Rights Implications of Climate Change’ (2007) 30 Hastings International and Comparative Law Journal 231. 8 Wisne, op cit, 2. 9 David Adam, ‘Food prices threaten global security – UN’, The Guardian, 9 April 2008. 10 Ibid. 11 Rafael Epstein, ‘UN chief warns of civil unrest amid world food shortage’, ABC News, 30 April 2008, at <www.abc.net.au/news/stories/2008/04/30/2231223.htm>. 12 John Vidal, ‘Nations split on ways to tackle hunger alert’, Sydney Morning Herald, 17 April 2008. 13 US National Intelligence Council, Global Trends 2025: A Transformed World (USGPO, Washington DC, 2008), 51.
2 Electronic copy available at: http://ssrn.com/abstract=1485175
Secondly, climate change is making fresh water increasingly scarce in places where it is presently needed by human populations. The Intergovernmental Panel on Climate Change estimates that between 1.1 and 3.2 billion people could experience water scarcity by 2080 14 (unless, for instance, there is mass migration to those places where water may become relatively more prevalent due to shifting rainfall patterns following from climate change). In Asia, the large number of people currently facing water scarcity will sharply rise as climate change affects surface water levels and curtails Himalayan glacial water in the long term. 15 Around 655 million people in Asia lack safe drinking water, while 1.9 billion people lack access to basic sanitation. 16 Climate change will aggravate the underlying causes of water scarcity in Asia, which hosts 60% of world’s population but only 36% of the world’s water resources. 17 As the UN Secretary-General has noted, high population growth, rising consumption, pollution and poor water management are contributing to a water crisis which is exacerbated by climate change: “The consequences for humanity are grave. Water scarcity threatens economic and social gains and is a potent fuel for wars and armed conflict.” 18 Thirdly, according to the World Health Organisation (WHO), ‘climate change poses substantial risks to human health, particularly among the poorest populations’. 19 WHO estimates that the effects of climate change from the mid-1970s to 2000 caused at least 150,000 deaths. 20 Such risks arise because climate change affects the conditions necessary for good public health, such as the availability of water, food, shelter and social stability. Specific threats to public health include increasing heat waves, rainfall changes affecting water supplies, rising temperatures and the impact on agriculture, rising sea levels and coastal flooding, and population displacement. 21 Certain diseases (such as cholera, typhoid, hepatitis, giardia, malaria, dengue, plague and encephalitis) are likely to spread geographically to new areas and persist for longer, and affect populations which do not have immunity or lack health resources. 22 Climate induced migration may shift disease patterns; crop failure and famine may reduce resistance to infection; water scarcity and contamination may increase disease transmission; and public health infrastructure will come under strain. 23
Intergovernmental Panel on Climate Change, ‘Fourth Assessment Report: Climate Change 2007’ at <www.ipcc.ch/ipccreports/assessments-reports.htm>. 15 Ibid. 16 World Health Organisation-UNICEF, Meeting the MDG Drinking Water and Sanitation Target: The Urban and Rural Challenge of the Decade (2007) at <www.who.int/water_sanitation_health/monitoring/jmpfinal.pdf>. 17 UNESCO, ‘World Water Assessment Program Report 2’ at <www.unesco.org/bpi/wwap/press/pdf/wwdr2_facts_and_figures.pdf>. 18 United Nations Secretary-General Ban Ki Moon, Asia-Pacific Water Summit (2007). 19 World Health Organisation, Fact Sheet: Climate and Health, July 2005, <www.who.int/globalchange/news/fsclimandhealth/en/index.html>. See also World Health Organisation (Executive Board), Climate Change and Health: Report by the Secretariat, 16 January 2008, EB122/4; 61st World Health Assembly, Resolutions WHA51.29 and WHA61.19. 20 Ibid. Asia alone accounts for 80% of world’s total deaths due to water-related disasters (2001-05); 19602006 over 600,000 water-related disasters (floods, droughts, tsunamis, windstorms, landslides, storm surges, water-born diseases, epidemics). 21 Ibid. 22 Ibid. 23 Atul A Khasnis and Mary D Nettleman, ‘Global Warming and Infectious Disease’ (2005) 36 Archives of Medical Research 689-696; see also Kathryn Senior, ‘Climate Change and Infectious Disease: A Dangerous Liaison?’, The Lancet Infectious Diseases, volume 8, February 2008, 92. For a more cautious
The direct impacts of climate change described above will aggravate existing structural weaknesses in some States. For example, economic weakness in some societies narrows income possibilities and deprives the State of resources with which to meet basic needs, 24 and may generate internal conflict over resource distribution. Further, political instability and poor or weak governance make it harder to adapt to the effects of climate change and to resolve conflicts without violence. 25 As a result, conflict over essential but increasingly scare resources – water, food, land and energy – may increasingly arise. Already some conflicts have been driven by disputes about land and resources which are at least partly due to desertification (aggravated by climate change) in northern Nigeria, Sudan, Kenya and Ghana. The potential for resource conflict is aggravated by competitive policy responses to increasing resource scarcity and consumer demand, such as the expanding ‘resource diplomacy’ of China and India as they court resource-rich countries in Africa and the Asia-Pacific. In addition (and sometimes connected) to conflicts animated by resource scarcity, further (and more conventional) conflicts over territorial and maritime boundary disputes may arise as a result of climate change. In the Arctic region, for example, the rapid melting of polar ice – with a possibly ice-free Arctic by 2060 26 – potentially opens up the region to newly accessible, commercially exploitable maritime trade routes as well as possible resource exploitation. 27 This may aggravate long standing disagreements about the status of certain Arctic waters as international straights or internal waters (particularly as between Canada and the United States). Russia has asserted continental shelf claims under the Arctic, exemplified by its infamous planting of a Russian flag on the seabed by submarine in 2007. Denmark has also staked Arctic claims, while the area is becoming increasingly militarized, with Canada announcing a $5 billion Arctic defence plan in 2008. Likewise, in Antarctica, increasing activity by major powers (including China) may put pressure on the Antarctic treaty regime, including by undermining the suspension of sovereign claims to territory and the non-exploitation of resources, potentially giving rise to new tensions. In the Pacific Ocean region and South Asia, the likely loss of land territory due to rising sea levels may lead to the disappearance of islands or other maritime formations, or result in certain areas becoming uninhabitable. Drought, salination, storms and sea level rises are seriously affecting island States such as Micronesia, Tuvalu and Kiribati, while in Maldives, a two metre sea rise would inundate 1200 islands. 28 At the same time, the coping capacity of some of these States is being decimated by other economic impacts of climate change; coral bleaching in the Pacific, for instance, may result in up to a 50% loss in GDP in Pacific Islands by 2020. 29 Sea level rises (or changes in shared boundary river courses, lakes or wetlands, driven by climate change) place pressure on the maintenance and stability of existing maritime and territorial boundaries and claims. On one estimate, assessment, see Roland Zell, ‘Global Climate Change and the Emergence/Re-emergence of Infectious Diseases’ (2004) 293 International Journal of Medical Microbiology 16-26. 24 International Alert, op cit, 3. 25 Ibid. 26 According to the US National Snow and Ice Data Center, cited in US National Intelligence Council, op cit, 53. 27 See, eg, Chatham House International Law Discussion Group, ‘The Arctic and Climate Change’, Meeting Summary, 14 February 2008. 28 Security Council debate, op cit, 12. 29 Jon Barnett, ‘Security and Climate Change’, Tyndall Centre for Climate Change Research: Working Paper 7, October 2001, 4.
only 160 of 365 potential maritime boundaries are already determined, 30 and the shifting of boundaries through rising sea levels may well complicate the settlement of disputes. Overarching all of the above physical effects of climate change is the prospect of large scale displacement and migration prompted by the combination of effects. The IPCC suggests 50 million will be displaced by 2010, while the Stern Report suggests up to 200 million may be displaced by 2050. 31 In Asia, for instance, 40% of the population lives within 60km of the coast and a 45cm sea level rise in Bangladesh will displace 5.5 million and inundate 11% of Bangladesh’s territory. 32 Mass displacement carries risks of internal and inter-State conflict, including due to political sensitivities about migration control, the inflammation of ethno-centric political agendas, and increasing isolationism. Here there is a two-fold risk of radicalisation: first, within communities faced with receiving large numbers of ‘climate refugees’ and secondly, within displaced communities frustrated by the unwillingness of the international community to adequately respond to their plight. Dissatisfaction may be aggravated by concerns that those who bear a disproportionately large burden of the impact of climate change – developing countries – are not the major historical source of carbon emissions. Any failure by developed (or relatively developed) countries to responsibly respond to climate-induced displacement may generate further tensions. In addition to current scientific projections about the likely impact of climate change on security, historical evidence offers broad support for the probable impacts. One major study which analysed 8,000 conflicts over 500 years, between 1400 and 1900, suggested that long-term climate change correlated with an increased in conflict and population decline all around the world. 33 In particular, periods of climatic cooling directly affected agricultural production (by shortening the growing season, restricting the availability of arable land, and leading to crop failure), thus restricting food supply (and increasing food prices) and increasing the likelihood of armed conflicts, famines and epidemics, ultimately reducing population size. The many other possible causes of war could not explain the temporal and spatial patterns of war shown by this research, which found that relative food scarcity is the key explanatory variable. 34 While the historical patterns in that study related to periods of climate cooling, today’s higher temperatures (that is, climate warming) will also affect agricultural production in comparably harmful ways. While warming may initially increase total bioproduction, the negative effects of warming are likely to outweigh the positive effects overall, 35 particularly when combined with the other impacts documented above (sea level rises, ocean decline, disease, extreme weather, glacial retreat, energy price increases due to fossil fuel scarcity, resource disputes and social tensions). As the study puts it, continuing temperature acceleration ‘might break the balance of human ecosystem that has been long established at a lower temperature’. 36
Paskal, op cit, 3. IPCC, ‘Fourth Assessment Report’, op cit; Sir Nicholas Stern, ‘The Stern Review on the Economics of Climate Change’ (2007) at <www.hm-treasury.gov.uk/media/4/3/executive_summary.pdf>. 32 India is currently building a border wall in West Bengal to stem the flow of millions of unauthorised Bangladeshi migrants who enter India each year. 33 David Zhang and others, ‘Global Climate Change, War, and Population Decline in Recent Human History’ (2007) 104(49) Proceedings of the National Academy of Sciences of the United States of America. 34 Ibid. 35 Ibid. 36 Ibid. 31
Climate Change as a ‘Threat Multiplier’ Given the potential alarmism surrounding the conflict threats posed by climate change, it is important to acknowledge the risk of positing any kind of automatic, causal connection between climate change and conflict, and not only because the empirical data is still in its infancy. 37 Conflicts are ordinarily the product of a complex array of contributory causes, including broader patterns of environmental change, and it is often difficult to isolate any single cause, let alone climate change, as the key explanatory factor. 38 Even if the various interconnected structural causes of conflict can be identified, it must still be recognised that human agents ultimately choose to wage war and there is never an inevitable chain of causal factors which leads to conflict. To use one example, the conflict in Darfur, Sudan, is often pointed to as the first example of a ‘climate war’, including by Britain in the Security Council. However, it is an oversimplification to assert that the conflict there is caused by climatic or broader environmental change. Rather, a complex array of causes are relevant: historical grievances, racial perceptions, unfair distributions of economic and political power, land scarcity and population stress, small arms proliferation, militarization of young people, weak State institutions, a lack of respect for human rights norms and so on. Importantly, coping, adaptation and adjustment capacity can often defuse conflict from materialising. The longitudinal study of long-term climate change and conflict mentioned above observes that the impact of climate change depends upon the variety of human social mechanisms (including measures of adaptation and mitigation) deployed in response to it, which may include warfare, economic change, innovation, trade, migration, resource redistribution and the capacity of social and political institutions. 39 During the historical periods of climate change noted earlier, such responses often did not keep pace with ecological change, resulting in the demographic decline and conflict. The same study acknowledges that economic changes after 1900 due to industrialisation mean that climate-related changes in global agricultural production are less likely than in the past to drive population shock and conflict. Further, today there is greater adaptive capacity than in the pre-modern world due to more sophisticated and robust social institutions for managing conflict (on the national and international planes), more advanced societies and better technology. At the same time, however, the world now faces higher population stress (with 9.2 billion people by 2020), higher expectations about living standards, and stricter political boundaries (which limit migration choices and potentially fuel conflict). While climate change is a matter of adaptation for those in the developed world (requiring perhaps a 1% reduction in GDP), in the developing world it may be a question of survival (as in the Pacific and parts of Africa and Asia). Consequently, while climate change may not inexorably lead to conflict, given the complexity of causes of conflict and the human potential for averting it, climate change can certainly be viewed as a ‘threat multiplier’. 40 Climate wars are ‘unlikely’, 41 but there may well be increasing tensions over resource distribution and the intensification of other
See, eg, Barnett, op cit, 5. Ibid. 39 Zhang, op cit. 40 European Commissio, op cit. 41 German Advisory Council, op cit, 1. 38
underlying causes of conflict, such as state failure, political instability or social violence. 42 Paradoxically, that threat may be aggravated by certain measures taken in response to climate change. For example, if civilian nuclear power replaces fossil fuels without sufficiently stringent safeguards and controls on nuclear energy, there may be a greater risk of nuclear proliferation and thus potential for conflict. Resort to biofuels has helped to increase some staple food commodity prices which may stimulate food riots and political tensions. Imposing new quarantine measures against the proliferation of climate-driven diseases could be viewed as discriminatory against migrants from developing countries, or as self-interested trade barriers and protectionism, creating further frictions. 43 The privatisation of water resources could increase water prices without adequate intervention to assist the poor, as is occurring in some parts of Latin America, thus fuelling possible conflict. Finally, developing countries may resent attempts to reduce their energy consumption without adequate compensation, since it can be seen as prejudicing their right to development which the developed world has already enjoyed and achieved. Too rapidly or stringently reducing emissions and generating possible energy shortages can lead to further internal instability in some societies. International Law Implications of Climate-Driven Insecurity Any post-Kyoto global compact for reducing carbon emissions and mitigating climate change would already come too late to neutralize all of the security risks flowing from the level of climate change which has already occurred, or is underway and irreversible over coming decades. 44 While such an agreement would be an important part of containing the risks, it is also necessary to consider how existing specialised branches of international law might assist (or be unable to assist), or be modified, to further manage security threats. At the level of the general law, the principles of State responsibility appear illequipped to deal with the harm caused by one State to another through carbon emissions. Even assuming that a relevant primary rule can be identified â€“ as in the prohibition of transboundary environmental harm, or the nebulous precautionary principle â€“ the secondary rules of State responsibility would require considerable adaptation to address the peculiar problems of causation associated with carbon emissions. Carbon emitters are numerous and their effects are diffuse and widespread, rendering it difficult to demonstrate the kind of causal responsibility which is typical in classic transboundary cases such as the pollution of a river by an upstream factory, or toxic plumes blown on the wind from a particular factory to a specific cross-border town. For instance, it is hardly possible to causally determine that emissions from a particular coal power station in Michigan are somehow responsible for sea level rises in a particular village in Tuvalu, or coastal flooding in a specific Bangladeshi delta or river, on armed conflict in an African province. Although there is already climate change litigation underway in various fora, problems of causation are deeply problematic,
Ibid. See, eg, Podesta, op cit, 123-124. 44 International Alert, op cit, 4. 43
whether under environmental law or, for instance, in potential claims in other areas such as harm to marine environments under the law of the sea. 45 There is, of course, potential for attenuating or adapting classic principles of causation, but that enterprise is problematic. It might, for instance, be posited that if the United States presently emits 20% of global carbon emissions, then it could be held causally responsible for 20% of total harm (whether coastal flooding, crop failure, forced migration, armed conflict and so on) caused by such emissions. But such a neat mathematical solution to the problem of causation is fraught with difficulties, not least because, as noted earlier, conflicts are generated by a combination of factors and cannot be attributed solely or quantifiably to climate change. 46 In particular, over what time frame are emissions and harm to be quantified? Emissions in 2009 are not responsible for climate-change related harm occurring in 2009, due to the long time period over which carbon emissions accumulate to manifest harm today (and during which, for the most part, the harmful effects of emissions were unknown and not unlawful). Carbon currently emitted will also cause harm at some indeterminate point in the future, complicating the causation equation. Further, while China now emits roughly as much carbon as the United States, since industrialization (1850-2003) the European Union and the United States have emitted 55% of the global total, compared with China’s contribution of around 8%. 47 Moreover, there are difficult questions concerning the apportioning of responsibility for emissions resulting from, for example, export industries, energy and food production, and transport, where those activities benefit ultimate consumers in countries other than the place of production. It is in the specialised branches of public international law that there may be more promising scope for measures designed to avert the security risks related to climate change. In international economic law and the law of development, there is clear need for stronger global or multilateral governance and management of resource scarcity and distribution. As one author notes: To date climate adaptation has mainly been framed as a technical development activity, but in reality it will involve complex political and diplomatic interventions in difficult and highly charged internal resource management issues. 48
The old view of permanent national sovereignty over natural resources, 49 seen as a victory for newly independent and developing States, may in fact exacerbate the scarcity of food, water and energy which climate change is aggravating. For example, some developing States responded to food price spikes in 2008 by prohibiting food exports – potentially safeguarding one’s own population but at the same time leaving even more vulnerable populations elsewhere to face even higher food prices. Similarly, the very low 45
See, eg, Meinhard Doelle, ‘Climate Change and the Use of Dispute Settlement Regime of the Law of the Sea’ (2006) 37 Ocean Development and International Law 319; William Burns, ‘Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention’ (2006) 2 McGill International Journal of Sustainable Development Law and Policy 27. 46 On problems of causation and corrective justice, see generally Eric Posner and Cass Sunstein, ‘Climate Change Justice’, Chicago Law & Economics Working Paper No. 354, August 2007, 23. 47 Kurt Campbell et al, ‘The Age of Consequences: The Foreign Policy and National Security Implications of Global Climate Change’, Center for Strategic and International Studies, Center for a New American Security, November 2007, 97. 48 Mabey, op cit, 6. 49 UN General Assembly resolution 1803 (XVII) of 14 December 1962, ‘Permanent Sovereignty over Natural Resources’.
(and unreal) price of oil in producer countries such as Venezuela stimulates wasteful consumption and aggravates carbon emissions. Water shortages are often aggravated by upstream damming of transnational river systems, accentuating shortages downstream. Accordingly, more, not less, international intervention is needed in dealing with resources that are essential to human dignity, to ensure a more rational, equitable and timely global distribution of scarce resources. Such intervention is needed across the resource spectrum. For instance, transnational governance of freshwater resources needs to improve on the best practice experiences in some river management contexts, building on the lessons learned and successes achieved in places such as the Mekong River Basin. Emerging regimes such as that governing transboundary watercourses and groundwater acquifers will need to factor climate change impacts into the implementation of key norms such as the principle of equitable and reasonable utilization, the obligation not to cause significant harm, the protection and preservation of ecosystems, and the ‘precautionary approach’. 50 In international trade law, radical steps forward in the regulation of global agricultural trade are needed, including the expedited removal of protectionist distortions in developed countries and enhanced market access for developing countries. 51 Rather than subsidising relatively poor French farmers, international law should be safeguarding the absolute poor in developing countries where the market is failing to provide affordable, basic food for vulnerable populations. At the same time, international law needs to become sensitive to climate change impacts of trade flows, such as arise from emissions stemming from transporting high volume or heavy goods to distant places when local substitutes are readily available. In international intellectual property law, better sharing and improved transfer of technology is needed across a range of areas essential to human development, whether in the patenting of medicines against disease, new energy technologies, or genetically modified organisms and gene technology. In international environmental law, the principle of sustainable development needs to be modified to include the long-term and global effects of climate change in judgments about the sustainability of particular development projects, so as to defuse potential conflicts arising over unsustainable or ill-devised projects. Those international institutions and donor States which are involved in sponsoring development also need to be mindful of both the climate change impacts of development initiatives and the impact of climate change on such initiatives. The World Bank, for instance, estimates that 40 per cent of its development projects are affected by climate change. 52 At the same time, the Bank has been increasing its lending for fossil fuel based energy relative to renewable energies. 53 From an economic and developmental perspective, it makes little sense to invest in projects maladapted to dealing with the effects of climate change, and even less sense to use international money to aggravate climate change where it can be avoided. Climate change impacts should consequently be factored in the approvals process for international loans and assistance, and multilateral or bilateral foreign aid, while climate change adaptation and mitigation measures could be made conditions of finance or assistance. At the same time, such conditionality must be sensitive to the risk of 50
See, eg, International Law Commission, Shared Natural Resources: The Law of Transboundary Acquifers – Draft Articles, articles 4, 6, 10 and 12 respectively. 51 See, eg, German Advisory Council, op cit, 10. 52 World Bank, ‘Clean Energy and Development: Towards an Investment Framework’, DC2006-0002, 5 April 2006, annex K. 53 Heike Mainhardt-Gibbs, World Bank Energy Sector Lending: Encouraging the World’s Addiction to Fossil Fuels, Bank Information Centre Brief, February 2009.
forcing premature energy reductions onto developing States, which itself risks generating conflict if developing States feel aggrieved that their development process is being thwarted by already developed donors. In addition, in the area of international investment law, there are a number of impediments to the implementation of climate change mitigation measures 54 which require attention if private investment patterns are not to aggravate the conflict risks associated with climate change. In the area of the international law of the sea, the European Commission has suggested that “[t]here might be a need to revisit existing rules… as regards the resolution of territorial and border disputes”. 55 What that specifically means is less clear. On one hand, the existing normative framework might be capable of accommodating the impacts of climate change: it is simply a matter of patiently negotiating disputes in the Arctic or over maritime or continental shelf delimitation through the usual processes. Paradoxically, climate change may strengthen the existing law of the sea regime in unexpected ways: resource competition in the Arctic has stimulated United States interest in finally becoming a party to the UN Convention on the Law of Sea, which would enable the US to participate more fully in maritime governance. 56 Issues presently suspended for pragmatic reasons – such as whether certain Arctic waters are Canadian sovereign territory or international straights – may be pressed for an ultimate resolution according to law, given that the stakes are increasingly raised over resource competition. There are, however, arguments that the existing regime may not be entirely adequate to respond to the challenges of climate change. For instance, “permanently fixing ocean boundaries” may be preferable to the increasing uncertainty (and potential for conflict), following sea level rises, generated by the existing “ambulatory” nature of baselines and the maritime boundaries and resource rights which flow from them. 57 This is particularly important in areas where sea rises spell the end of permanent habitation and thus the ability to claim maritime areas and attendant economic rights could otherwise disappear – which may particularly harm (or even extinguish) small, underdeveloped island States and their economies. Declining global fish stocks may also require more stringent regulation, as well as a shift away from ‘resource nationalism’ towards more sustainable collective management of an increasingly scarce resource. 58 Unresolved legal issues in the Arctic and Antarctic polar regions may also benefit from clarification, including the determination of baselines and maritime zones, the legal status of waters formerly covered by ice, extended continental shelf claims, and areas beyond
Kate Miles, ‘International Investment Law and Climate Change: Issues in the Transition to a Low Carbon World’, paper presented at New Horizons of International Economic Law, The Inaugural Conference of the Society of International Economic Law, Geneva, Switzerland, July 2008; see also Kate Miles, ‘Sustainable Development, National Treatment and Like Circumstances in Investment Law’ in Marie-Claire Cordonier Segger, Andrew Newcombe and Markus Gehring (eds), Sustainable Development in World Investment Law (Kluwer, The Hague, forthcoming). 55 European Commission, op cit, 4. 56 Associated Press, ‘As Arctic ice melts, U.S. moves to OK sea treaty’, MSNBC, 4 October 2007, <www.msnbc.msn.com/id/21131181>. 57 David Caron, ‘Climate Change, Sea Level Rise and the Coming Uncertainty in Ocean Boundaries: A Proposal to Avoid Conflict’ in Seoung-Yong Hong and Jon M Van Dyke (eds), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Brill, forthcoming 2008), 14. 58 See, eg, Tim Stephens, “Fishing-Led Development in the South Pacific: Charting a Pacific Way to a Sustainable Future” (2008) 39(3) Ocean Development and International Law 257-286.
national jurisdiction, along with marine environmental protection and biodiversity concerns. 59 In the field of global migration, international law is currently poorly equipped to respond to the challenge of climate-induced displacement and the potential security risks it may bring. Migration as a whole is generally left to national legal discretion rather than being subject to comprehensive international legal control; international law is limited to narrow and specialised interventions in areas such as refugees or migrant workers. The climate induced displaced are very unlikely to meet the legal definition of a refugee and therefore generally fall outside of the parameters of international legal protection, and complementary human rights-based protection is currently underdeveloped beyond agreed areas (such as non-return to torture). 60 They are likely to be seen as another manifestation of mere ‘economic migrants’ – much maligned and seldom admitted to developed countries, particularly given increasing restrictions on migration in the wake of the global financial crisis of 2008-09. As argued elsewhere, 61 there is accordingly a need to develop a comprehensive international framework for managing likely new flows of displaced persons, based on burden-sharing principles, a human-rights oriented approach, and the allocation of welldefined institutional responsibilities for humanitarian relief, legal protection, and the forging of durable, permanent solutions. This includes developing innovative ways for dealing with the disappearance of island States and the consequent extinction of their legal personality (and allied nationality) – which may carry with it new problems of statelessness and instability in neighbouring countries receiving mass influxes. For pragmatic reasons, a comprehensive migration strategy need not necessarily involve the formulation of a new international treaty covering, for instance, environmental migration, 62 but it would require a commitment by developed States to actively managing the problem, including by providing development assistance for internal relocation where appropriate. In normative terms it would also demand greater attention to the human rights implications of climate change. 63 It is doubtful that major carbon emitters can be causally characterised as legally responsible (and thus obliged to make reparation) for human rights violations resulting from climate change. Climate change is, however, likely to weaken some States and render them unable to fulfil their obligations to protect and ensure rights. 64 International, regional and national responses to climate-induced displacement (including as a result of conflict) must accordingly be attentive to the fundamental rights of those forced to relocate. The forgoing survey of some of the specialised branches of international law illustrates how averting conflict risks associated with climate change requires a systemwide, preventive approach. In addition, the security architecture of the international legal order evidently needs to become more responsive to such risks. At an informal level, there is a need to take a longer view in engaging preventive diplomacy at an earlier structural level to deal with the security effects of climate change, moving beyond the 59
See, eg, Rosemary Rayfuse, ‘Melting Moments: The Future of Polar Oceans Governance in a Warming World’ (2007) 16 Review of European Community and International Environmental Law 196. 60 Jane McAdam and Ben Saul, ‘Weathering Insecurity: Climate-Induced Displacement and International Law’ in A Edwards and C Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs (Cambridge University Press, Cambridge, 2009), chapter 13. 61 Ibid. 62 As suggested by the German Advisory Council, op cit, 11. 63 See n7 above. 64 McAdam and Saul, op cit.
traditionally more narrow focus of diplomacy on averting imminent physical risks of violence. The European Commission, for example, has committed itself to developing new analysis, monitoring and early warning capabilities to avert conflicts risks associated with climate change. 65 Likewise, the German Council on Global Change has suggested that militaries need to restructure for preventive operations in development cooperation, moving further away from classic defence spending and towards longer term missions such as the stabilisation of fragile states. 66 Regional organisations or bodies too must be more active in collectively managing the effects of climate change and resource scarcity in their own geographical regions. There are already some tentative developments: the Asian Development Bank plans to double investment in Asian water projects to $2 billion per year, given the potential for conflict if water governance remains weak; 67 the European Commission is developing its own Arctic Policy, in part to avert conflict risks; and there is ongoing controversy over whether NATO should shift further away from conventional security towards concerns about ‘energy security’. At the global level, the UN Security Council has already turned its attention to the conflict risks associated with climate change, as noted earlier. The Council has also signaled its willingness, in Resolution 1625 (2005), to ‘adopt a broad strategy of conflict prevention, which addresses the root causes of armed conflict’. Despite the Council’s increasing concern about ‘human security’ or non-traditional security threats, including climate change, the international community remains divided on whether the Council is the appropriate forum for addressing such matters. Many western States and Pacific Island nations favour Council action, whereas the Non-Aligned Movement, the Group of 77, and major powers such as China and India are unconvinced, partly because some believe that other fora – such the General Assembly, ECOSOC, the Commission on Sustainable Development, or new specialised bodies – are better placed to respond. 68 There is likely to be most consensus around Council action in situations where conflicts have already crystallised and become acute – rather than at an earlier preventive stage – by which time it may be too late to avert humanitarian crises, particularly where other organs have failed to take preventive action. Given that national militaries are increasingly concerned about the security risks posed by climate change – leading to national competition to secure access to dwindling global resources – it is imperative that the Security Council exercise collective control over the human security problems presented by climate change, so as to manage and defuse sovereign competition over dwindling resources. At the same time, national militaries could be increasingly mobilised for non-conventional roles such as stabilisation, post-conflict reconstruction and disaster relief. 69 Conclusion
European Commission, op cit, 1. German Advisory Council, op cit, 13. 67 Asian Development Bank, ‘Water Financing Program 2006-2010- Water for All: The Next Five Years’ at < www.adb.org/Water/WFP/default.asp>. 68 Security Council debate, op cit; see also Francesco Sindico, ‘Climate Change: A Security (Council) Issue?’ (2007) Issue 1 Carbon and Climate Law Review 29. 69 Australian Defence Forces, Climate Change, The Environment, Resources and Conflict, November 2007, reported in Jonathan Pearlman and Ben Cubby, ‘Defence warns of climate conflict’, Sydney Morning Herald, 7 January 2009; Podesta, op cit, 132-133. 66
While the spectre of â€˜climate warsâ€™ is fanciful, it is no exaggeration to suggest that the effects of climate change are likely to stimulate domestic and global tensions and to aggravate other underlying causes of conflict. Conventional and human security problems will arise from distributional conflicts over scarce resources (food, water, energy, land and seas), disputes over maritime boundaries, competition in the polar regions, pressure upon public health infrastructure, changing migration patterns, potential for radicalisation, and systemic stresses upon weak States, economies and social orders. Such consequences do not inexorably lead to outbreaks of violence or political instability, but they may be contributing factors given the right constellation of conditions. With the processes of climate change already well underway, even the rapid conclusion of an effective post-Kyoto global climate change regime (such as a carbon tax or cap-and-trade scheme) would not be sufficient to avert the security risks that are already in formation. It is vital, therefore, to consider the range of ways in which public international law can be marshalled to prevent, contain and remedy the consequent security threats. Problems of identifying relevant primary obligations and attendant problems of causation limit the utility of relying upon principles of State responsibility to confront climaterelated security risks. More promising are the specialised branches of international law, many of which offer prospects for responding to the challenge; some of which are more accommodating and others which would require more radical refashioning. Engaging the specialised branches of international law enables a thicker, more systemic response to the security risks attending climate change and is likely to prove more effective than relying on singular institutions (such as the Security Council) or normative frameworks (such as a new global climate deal). The costs of modifying international law in these ways is undoubtedly less than the human and financial costs which will likely ensue from resource conflicts and sovereign competition aggravated by unmitigated climate change.
Published on Aug 2, 2011
Legal Studies Research Paper No. 09/107 Ben Saul October 2009 This paper can be downloaded without charge from the Social Science Research N...