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New Zealand Journal of Environmental Law |
Last Updated: 12 February 2023
209
ex-Post and ex-ante [Legal] approaches to Climate Change Threats to the International Community
Francesco Sindico*
The negative effects of climate change, such as an increasing rise in sea levels, pose new threats to the international community. However, do they constitute threats to the international peace and security ex Article 39 of the United Nations (UN) Charter? The goal of this article is to answer this question and to determine which path the international community should take in order to efficiently tackle climate change threats: an ex-post approach or an ex-ante approach. The ex-post approach analyses the international legal and political frameworks in which future climate change-related threats may be addressed by the international community. In particular, it studies whether the system provided for in Chapter 7 of the UN Charter would be able to deal with environmental-related threats. The ex-ante approach focuses on what the international community should do today in order to prevent climate change threats from occurring. It argues that States must change their economic behaviour and in some cases give priority to environmental interests over commercial interests. In conclusion, taking into
account the current state of international affairs, it is unlikely that the international community will follow the ex-ante approach in the short term. Therefore, this paper concludes that legal and political scholars must take action within the ex-post approach in order to improve the current international community response to climate change threats, in particular by improving the maintenance of international peace and security system provided for in the UN Charter.
1. INTRODUCTION: INTeRNaTIONaL seCURITY Vs hUmaN seCURITY
On 26 December 2004, a 9.0-magnitude earthquake on the Richter scale near the western coast of the Indonesian island of Sumatra provoked a huge tidal wave that devastated countries in two continents, from Indonesia to Somalia. The death toll of the Tsunami disaster has been overwhelming. It seems that in total more than 283,100 people were killed, 14,100 were still listed as missing in March 2005 and 1,126,900 were displaced by the earthquake and the following tsunami.1
Can the climate change debate learn something from the Tsunami disaster? During the first hours, the tidal wave moved across the Indian Ocean covering small islands and some actually disappeared. This happened, for example, in many of the islands that constitute the State of the Maldives where the average height of the land is only one metre above sea level. Islands were completely covered by the water and the population had to be evacuated. The Tsunami caused the sea to rise and for one day it showed to the international community the fate that small island States face in the near future.2 Even if climate change had nothing to do directly with the tidal wave,3 many Maldivians highlighted that sea rise, which is one of the major effects of climate change, will be a serious threat to their security and to their own existence.4
The overall lesson of the Tsunami and of other natural disasters, such as
the earthquake in the Iranian historical city of Bam at the beginning of 2004,5 is that the international community must finally replace international security with a broader concept: human security.6 While international security focuses mainly on military aggression from one State to another, human security refers to individuals. The struggle between West and East after the Second World War polarised the security debate within the military and traditional warfare context. With the end of the Cold War the international community realised that there were other possible sources of insecurity. In 1994 the United Nations Development Programme forged the concept of human security as a multidisciplinary concept that includes social, economic, and environmental concerns.7 However, human security is usually seen as a defensive concept, according to which an individual will be secure only if he/she is protected from possible threats.8 A further step will be to consider that human security is achieved only when an individual can freely fulfil his social, economic, and environmental rights. The green part of this equation has been underlined by the chairman of the Intergovernmental Panel on Climate Change (hereinafter “IPCC”), Pachauri, who has defined environmental security in the following way:9
... the minimization of environmental damage and the promotion of sustainable development, with a focus on transboundary dimensions.
13.1 Global Environmental Change 7–17, at 7: “Security in a general sense is the condition of being protected from or not exposed to danger” (emphasis added); and from Bogardi, J J, “Hazards, risks and vulnerabilities in a changing environment: the unexpected onslaught on human security?” (2004) 14.4 Global Environmental Change 361–365, at 362, “The concept of human security focuses on threats that endanger the lives and livelihoods of individuals and communities” (emphasis added).
In conclusion, in the last fifteen years the concept of international security has broadened and it has developed into a human security issue. Nowadays, States must envision new factors in their security strategies, including social, economic, and environmental concerns.
Against this background, this article has the following goals. Firstly, and preliminarily, we want to determine whether, and to what extent, problems related to the environment and, in particular, to climate change may constitute a threat to human security. Secondly, we want to see if the international com- munity is prepared to deal with possible climate change-induced conflicts through its international legal system, in particular by means of the mechanisms provided for in the United Nations (hereinafter “UN”) Charter. We will call this study the ex-post approach to climate change and human security. Thirdly, this article seeks to determine possible conflict prevention strategies based on the current climate change law system. This part of the study will be defined as the ex-ante approach. Finally, we will draw some conclusions in which we will try to make proposals about how the international community should deal with climate change and human security.
2. CLImaTe ChaNge aND hUmaN seCURITY
Climate change has occurred throughout world history. However, what we are experiencing in our days is an abnormal acceleration of the climate change process due to the activities of mankind, in particular due to the amount of greenhouse gas emissions that has been released into the atmosphere in the last decades.10 The acceleration that we are experiencing is already causing severe effects on the world environment. In fact, climate change is considered, for example, to be a contributing cause to problems such as soil erosion, which then leads to desertification, and water scarcity. Environmental degradation and environmental scarcity become more problematic when they are coupled with human-induced problems, such as population growth, urbanisation, poverty, etc. Linking nature-induced and mankind-induced environmental problems is one of the main theses of H G Brauch, who defines it as the survival hexagon.11 According to Brauch, environmental scarcity and degradation may lead to a situation of environmental stress that could further cause man-made or human disasters, and trigger political and economical tensions inside one country or between two or more countries. Environmental problems could, and have already been in some cases, the ratio behind a violent conflict.
However, it is important to stress that environmental problems alone are not the cause of a possible conflict. The acceleration of the climate change process can increase the gravity of problems that,12 together with other human-induced problems, can lead to a conflict. We will see if this thesis is valid through the analysis of problems related to water scarcity and sea level rise.
2.1 water scarcity and Climate Change
The acceleration of climate change will lead to several water-related problems.13 On the one hand, rivers will inevitably carry less water in regions where rain precipitation will decrease and desertification will increase. On the other hand, water scarcity will foster States to look for new sources of fresh water. Both examples of future water-related problems may lead to international tension.
International rivers have always been the pillar upon which civilisations and nations develop, throughout world history. States soon realised that international cooperation was needed to deal with common issues to all riparian States. International treaties that regulate the use of the waters of the Rhein or the Danube were signed in Europe as far back as 1856.14 Water is crucial for the economy and welfare of a country, and when international rivers are not framed within an international cooperation treaty conflicts may arise about the utilisation of their water.15 For example, in 1990 an armed conflict almost started between Turkey, on the one side, and Syria and Iraq, on the other, about the Euphrates River.16 Another more recent example is the political tension between Egypt and other Nile riparian States about the waters of the longest African river.17 Other international rivers that led in the past, or could lead in the future,
to tension between States are the Jordan River18 and the Ganges River.19
If international rivers have less water and more conflicts surrounding their shores, States will have to look for other sources of fresh water in the future. One of the options will be to start using the underground aquifer that is currently only partly used. However, if the underground water is present in more than one country, States will have to cooperate and share it equitably.
In sum, water governance is a very delicate task and it has led in the past to tensions between States. Climate change will lead to further water scarcity and, if international rivers and underground water are not governed appropriately, violent conflicts may arise in the future between riparian States. Therefore, water-related problems could be one of the sparks of a future conflict. In regions such as the Middle East, there are many reasons behind the political and military tensions between States. In relation to the Palestinian situation, religious and ethnic clashes are just two of the causes. Water-related problems also exacerbate tensions between the factions.20 However, the author believes that if States can agree upon the good governance of shared water resources, and thereby improve the quality of life for individuals in the region, this may help to ease political and military tensions.
2.2 sea Level Rise and Climate Change
Climate change will produce a significant rise in the sea level. The IPCC main- tained in its Third Assessment Report that ocean levels will rise from 0.11 to
0.77 m by 2100.21 Among the many negative effects of sea rise, two must be underlined: salinisation of freshwater resources and the flooding of lowland areas, which may both lead to tensions among States.
On the one hand, sea will penetrate into rivers making their water un- drinkable. This will increase the pressure on the already delicate governance
of international rivers. The more dramatic possibility is that sea rise implies that sectors of land will be completely covered by water and, therefore, that people will not be able to live in those areas any more. This will be particularly severe for some regions, such as the small island States in the Indian and Pacific Oceans, most of which are flat and could be completely covered by water.22 In such cases, the very existence of the country is at risk.23 Another example is that coastal States may see their shorelines eroded and their landmass dramatically reduced. Furthermore, developing countries will suffer the worst effects. Climate change and consequent sea rise in Amsterdam will not have the same effects as in Dhaka. Bangladesh, unfortunately, will have to deal with climate change together with other of the elements present in Brauch’s survival hexagon.24 The disappearance of parts of a country, or of the entire country in the case
of small island States, is the ultimate consequence of climate change. While damage from a natural disaster, like a tsunami, can be in some way adjusted to, the consequences of sea rise, and therefore of climate change, will last forever. People will have to move in order to survive. People will have to leave their countries in order to find a new place to live. Climate change will lead to massive movements of people that some authors have called environmental refugees.25 This call for help has already started. In fact, in February 2000 the Prime Minister of the State of Tuvalu has asked other countries if they would be willing to receive its population should the islands become uninhabitable.26 However, according to international law a refugee is27
... [A]ny person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is
unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country ...
Despite the fact that refugee law might have to develop in order to include new categories in the future, it does not seem possible today to give refugee status to people who flee from their country for environmental reasons. There- fore, the author agrees with Brauch when he maintains that it may be more useful to define these people by the term distress migrants.28
Whatever name is given to people who leave their homes because of environmental conditions, it is clear that massive migration patterns may lead to severe tensions. In some regions these may be easier to solve, such as in the West Pacific where, for example, New Zealand has already replied positively to Tuvalu’s request for future aid. However, in other areas of the world, such as Bangladesh, migration due to the inhabitability of the Ganges Delta will be far more difficult to deal with.29 The worst scenarios, which have been suggested, foresee political followed by military conflicts between Bangladesh, Indian and Chinese forces at the borders.30
In conclusion, climate change-related sea rise may prove a threat to the security of human beings because it could cover their countries forever. Sea rise would then lead to massive migration patterns that could lead to violent interstate conflicts if they are not managed promptly. However, even in this case, climate change per se is not the threat to human security. It exacerbates an environmental problem (sea rise) that may lead to environmental degradation (flooding and the disappearance of small island States). The environmental stress that follows would provoke massive migration patterns that can be dealt with peacefully (West Pacific case) or that could lead to serious violent conflicts (Bangladesh case).
2.3 Concluding Remarks
To conclude this part of the article, water scarcity and sea rise problems demon- strate that climate change may be a serious and real threat to human security. However, two points must be highlighted before moving on. Firstly, the nature of the environmental factor in possible future conflicts must be underlined. Conflicts may arise over shared environmental resources, such as water, that, because of climate change, have become particularly scarce, and, therefore, more valuable. However, conflicts may also arise because of the dire effects caused by the environmental problem, such as massive migration patterns due to climate change-induced sea-level rise that makes life in certain parts of the world utterly impossible. While sea rise and water scarcity are the ultimate threats to human security, it is the current climate change trend, due to anthropogenic interference, that is responsible for them. Secondly, if the environmental problem is linked to other human-induced problems and to an incorrect governance of the environmental resource, human security problems may escalate into a violent conflict between States.
3. ‘eX-POsT aPPROaCh’ TO CLImaTe ChaNge ThReaTs TO hUmaN seCURITY
We have seen in the first part of this article that climate change is, and will be even more so in the future, a threat to human security. The following part of the article will go a step further and, firstly, will try to assess whether environ- mental problems, and climate change in particular, can be considered a threat to peace according to the traditional meaning of international security. Secondly, we will analyse if the current international law mechanisms that respond to an international threat to peace and international security, which are framed in the United Nations Charter, can cope with possible environmental threats and with climate change-related menaces in particular. The analysis in this part of the article may be termed the ex-post approach to climate change threats to human security. At a later stage in the article we will see how the international community should act in order to avoid these problems: the ex-ante approach to climate change threats.31
3.1 environment and International security
The international community has progressively addressed the relationship between environment and international security in the last twenty years or so. In 1982 the UN General Assembly Resolution World Charter for Nature
officially acknowledged that: “[C]ompetition for scarce resources creates conflicts.”32 A few years later the Brundtland Report highlighted possible linkages between environmental problems and international security.33 It maintained that environmental problems could be “... a possible cause as well as a result of conflict”.34 Four years later the Rio Declaration on Environment and Development acknowledged that the environment may lead to disputes and it reminded States that they must work together in order to solve peacefully such disputes.35 However, in the last decade the international community has not been too concerned about the linkage between environment and international security. In fact, while both the Millennium Declaration36 and the Johannesburg Declaration on Sustainable Development,37 further stressed the possibility that environmental problems might lead to violent conflicts, there has been no real follow-up to these declarations.
In 2003 the UN Secretary General was convinced that international security had to be redefined in order to highlight new threats and to find plausible solutions. For this purpose he appointed a high-level panel on threats, challenges, and change (hereinafter “high-level panel”) that issued a report in December of 2004.38 Therein, a threat to international security is defined as:
Any event or process that leads to large-scale death or lessening of life chances and undermines States as the basic unit of the international system ...39
One of the threats to international security that the high-level panel high- lighted concerned:
Economic and social threats, including poverty, infectious diseases and
environmental degradation.40
A possible interpretation of the high-level panel’s report is that the inter- national community must finally shift from a traditional concept of international security to the concept of human security.41 An armed conflict may cause significant deaths and upheaval in many regions of the world, but it is not the only possible cause of such misery. Statistics show that natural disasters have affected six times more people than interstate armed conflicts between 1990 and 1999.42
Another point that must be underlined is that the report lists environmental problems as a threat to international security together with other international problems, such as poverty or economic threats. The author posits that, in many cases, there will be a threat to international security when such problems occur together. The combination of an infectious disease epidemic (i.e. AIDS), extreme poverty, and in some cases, serious environmental degradation, such as progressive desertification, in parts of Africa, is considered to be a threat to international security.43 On the other hand, that infectious disease epidemic is not considered to be a threat to security in Europe or in North America, and a similar argument could apply to environmental degradation. Water scarcity alone is not a threat to international security. However, if an environmental problem is linked to poverty, excessive urbanisation, and social and economic threats, such as in the Middle East or in Bangladesh, it may end up constituting a threat to international security, and this is the concern highlighted by the high- level panel.44
Despite all the international documents that have progressively reaffirmed the linkage between the environment and international security, and the growing literature on this subject moving in the same direction, the Security Council has, to use a colloquialism, the “final word on the matter”. In fact, the latter is the only international body that currently has the power to determine if an international problem is a threat to international peace and security and to give
legal effects to such determination. The wording of Article 39 of the UN Charter is very clear:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
When the UN Charter was drafted, the international community was still concerned with the Second World War and it was obvious that States focused upon conflicts between countries as being the main threat to international peace and security. Sixty years later, some of the UN Charter norms seem obsolete. However, the text of Article 39 is still useful. What must change, however, is its interpretation by the Security Council. This has started to occur, especially in the last fifteen years, after the end of the Cold War. In fact, new threats to international peace and security have been determined by the Security Council, such as “any act of international terrorism”45 or the spread of infectious diseases such as AIDS.46In conclusion, despite the fact that the UN Security Council has not yet clearly determined that an environmental problem constitutes a threat to international peace and security, the author considers the linkage to exist. Further- more, the author believes that if current environmental trends are not modified, the relationship will become self-evident to the international community in the near future. It must be hoped that the 2004 report of the high-level panel may create momentum in the UN framework in order to enable the Security Council to readdress the linkage between the environment and international security. However, until there is a clear position from the Security Council, the proposition that environmental problems constitute a threat to international peace and security can be attacked conceptually and legally.
3.2 Climate Change and International security
Before analysing how the international community could reply to possible environmental threats to international peace and security, it is important to determine whether climate change has been addressed as an international security issue. In other words, do States consider climate change to be a threat to world order?
The international community has started to link climate change with international security only very recently. Until now, all international climate- related efforts have focused on the science of climate change and on how States should attempt to mitigate or adapt to climate change. Despite their import- ance and relevance, equal efforts have not been dedicated to the linkages between climate change and international security. However, as the scientific evidence and the awareness of the dangers of climate change increase, things are changing. Research institutes and scholars have started to conduct studies on climate change and security.47 Further, States are also starting to consider climate change as a security issue. In 2003 the Pentagon requested a study on the effects of climate change on US national security.48 The report describes extreme scenarios that in some cases seem inspired by the Hollywood blockbuster film The Day After Tomorrow (or vice versa). In addition, the United Kingdom has repeatedly maintained that it wants to put climate change high on the political agenda of the G8 meeting that it will host in 2005.49 The high-level panel has stressed that a number of environmental problems, including climate change, have not been tackled efficiently by the international community. The report highlights that “[R]arely are environmental concerns factored into security,
...”,50 implicitly linking climate change to international security.
We have seen in previous parts of this article that climate change effects, such as sea rise and water scarcity, can constitute a threat to human security. Following the reasoning espoused above, the author maintains that climate change effects can also be a threat to international security.51 Climate change constitutes a potential threat, regardless of the manner in which international security is considered, i.e. in military terms or inclusive of a human security issue. On the one hand, climate change may cause serious environmental degrad- ation that will decrease the availability of natural resources like water, the scarcity of which could then lead to violent conflicts, defined by some authors as water wars.52 The UN Secretary General stressed that the 21st-century conflicts
may concern water.53 On the other hand, climate change may be responsible in the future for natural disasters and the related humanitarian crises.54 When one considers that in the last decade alone, 188 million people were affected by such extreme events, the threat to human security by increasing disasters in the future appears clear. Natural disasters and humanitarian crises can trigger, just like environmental degradation, massive migration movements, which could foster political tension and finally bring countries to war. This is especially true for developing countries that lack the capacity to respond to such calamities. Armed conflicts due to massive movements of people that want to flee their country for climate change-induced environmental problems are foreseen in the report requested by the Pentagon, according to which, for example, in 2010 there will be “[B]order skirmishes and conflict in Bangladesh, India, and China, as mass migration occurs toward Burma.”55 The scenario gets even worse in 2020 when, according to the report, there will be “[P]ersistent conflict in South East Asia ... [between] Burma, Laos, Vietnam, India, China.”56
The UN Security Council has already maintained that massive flows of refugees due to internal political instability may pose a threat to international peace and security.57 Hence, should the international legal definition of refugee be readjusted in order to include environmental refugees, the link between climate change and international security would be much stronger. In fact, although climate change is not the direct cause of a person leaving their home (the direct reason being the flooding caused by sea rise, the destructive power of a storm, or the progressive desertification of land), still one must acknowledge that a primary cause behind these environmental problems is climate change. Therefore, to say that massive flows of environmental refugees may be a threat
to international peace adds credence to the assertion that climate change constitutes a threat to international peace and security.
In conclusion, within the last few years the linkages between climate change and international security have started to be explored by researchers worldwide. Furthermore, the US and the United Kingdom, in different ways, have admitted that climate change must be put on the highest level of the global political agenda because of its strategic security implications. Against this background, the author maintains that climate change effects do pose a serious threat to international security, both in traditional military terms and in a human security context.
Should current climate change trends be declared a menace to global peace? Once the consequences are characterised as a threat to peace, it is, in practical terms, superfluous to maintain that climate change is a threat to international security. If the international community, through the Security Council, maintains that a problem is a threat to peace, the action of the international community will be to trigger all possible mechanisms in order to resolve that problem. In the case of climate change, once the international community has determined that its consequences constitute a threat to peace, States will have to cooperate to try to tackle the source of that problem – i.e. current climate change trends.
3.3 The Response of the International Community to the New Threats to human security: are the mechanisms Provided for in the United Nations Charter appropriate?
This section seeks to answer the following question: how can the international community respond to an environmental problem, once the latter has been considered a threat to peace? In particular, how can States deal efficiently with climate change-induced environmental crises, once the Security Council has determined that such crises constitute a threat to peace and international security? The international community can follow three paths. Firstly, it could rely on the traditional mechanism of the UN Charter provided for in Chapter
VII. Another option would be to use instruments present in the climate change regime. Finally, a solution could be envisioned by linking the UN Charter mechanisms to the climate change legal regime.
The mechanism provided for in the UN Charter was drafted having in mind mainly military activity. However, as we have seen in previous parts of this article, the nature of possible threats to international peace and security has changed throughout the years. Legal academics and States have started to consider whether the Security Council could involve itself in other domains,
including environmental threats to international peace.58 By 1994 some authors began to maintain that the developing doctrine of the devoir d’ingerence, according to which the international community should intervene in order to stop a humanitarian crisis, would legally justify a green intervention, in which States could intervene in order to protect a global environmental interest.59
However, can the UN mechanisms, set up by the international community in order to respond to a global threat, accommodate an environmental menace to peace and security, and in particular one related to climate change? Chapter VII of the UN Charter provides the guidelines as to how the international community must respond once the Security Council has determined that a particular situation constitutes a threat to peace. However, before the Security Council makes a pronouncement on the nature of the situation, States will attempt to deal with the environmental problem through Chapter VI of the Charter.
Let us contemplate the following example. An unexpected rise in the sea level in the delta of the Ganges provokes a flow of environmental migrants or refugees from Bangladesh to India. China considers that the situation might lead to a threat to peace because it understands that India will not be able to deal peacefully with all of the environmental migrants. As a member of the UN, China, in accordance with Article 35 of the Charter, asks the Security Council to undertake a preliminary investigation of the situation.60 Based on the results of the latter, the Security Council issues several recommendations to India and Bangladesh in order to soundly manage the crisis.61 Neither country takes account of the recommendations and the tension between India and Bangladesh increases. Finally, the Security Council issues a resolution ex Article 39 of the Charter in which it formally determines that the crisis between the two countries, provoked by a flow of environmental migrants caused by the effects of climate change (sea rise), is a threat to international peace and security. Therefore, the situation falls into the realm of Chapter VII of the Charter. The Security Council issues several provisional measures, which once again are not complied with by the States involved. The situation escalates out of hand and this leads the Security Council, in order to put greater pressure on India and Bangladesh, to allow all member States to take economic and political countermeasures
against the two countries, according to Article 41 of the Charter.62 The US and the European Union, followed by many other countries, block trade operations with India. Bangladesh suffers serious political countermeasures from a number of important countries. The two countries realise that the countermeasures are harming their economies and that they must settle their differences with regard to the environmental refugee situation peacefully if they are to restore their standing in the international community. In this case the UN mechanism has worked and it has fulfilled its purpose of restoring peace and international security.
However, this process is not always successful. Suppose that Bangladesh and India do not bend to international countermeasures and that the situation of Bangladesh environmental refugees in India amounts to a significant humani- tarian crisis, threatening the security of the region. China asks the Security Council to move a step further and to act under Article 42 allowing an inter- national military action.63 However, one of the five permanent members of the Security Council blocks this resolution with its veto. Bangladesh forcibly enters Indian territory in order to give assistance to the environmental refugees. An armed conflict begins between the two countries and the international community does not intervene. Finally, China decides to act unilaterally and it moves troops into Indian and Bangladesh territory maintaining that its goal is to restore international peace and security. In this second case, the UN mechanism has not worked and its failure has deepened the conflict.
Even though climate change was the primary source of the international crisis in the example that we have just used, the UN mechanism reacts to a traditional threat to international security, which is the presence of an armed conflict between two countries. How could the mechanism provided for in the UN Charter respond to a different situation, in which the threat to peace does not lead, at least immediately, to a violent conflict? Imagine the following example. The government of the Tuvalu Islands in the Pacific Ocean considers that climate change is a threat not only to their own existence but to the survival of many other small islands in the West Pacific. Increasing sea rise will eventually cover
the islands making life impossible on them. For this reason the government of the Tuvalu Islands asks the Security Council to carry out an investigation on the possible existence of a threat to peace and international security related to its particular situation. The UN body undertakes an investigation and agrees on specific recommendations aimed at decreasing the risks of sea-level rise. However, the Security Council faces a problem. To whom should these recommendations be addressed? Where a State is preparing military action or acting aggressively against another State, or is acting in a way that might lead to a humanitarian crisis, it is easy to determine the country that recommendations must be addressed to. But which State is directly responsible for sea rise and for the current climate change trends? The Tuvalu Islands see that the UN has not been able to do anything and that sea rise is seriously increasing. The Security Council also acknowledges that the situation is worsening and it finally issues a Resolution in which it determines that climate change-related sea rise is a threat to international peace. Theoretically, the door is open now to the response of the international community. The Security Council has the right to allow all UN Member States to adopt political and economic countermeasures. But against whom? The Security Council could decide to start a military campaign in order to restore peace and international security. But where?
In conclusion, the first way that the international community may respond, once climate change is considered a threat to international peace and security, is through the traditional mechanisms provided for in Chapters VI and VII of the UN Charter. On the one hand, if the climate change-related environmental problem leads to a traditional armed conflict between States, the mechanism could be effective. However, if Security Council resolutions are vetoed by one of the permanent members, the international community response may be blocked. This could eventually lead to unlawful unilateral interventions in the name of global environmental protection. On the other hand, if the international community intends to tackle a climate change-related environmental problem before it leads to a military or a humanitarian crisis, then the UN Charter is irrep- arably flawed. In fact, how can the Security Council decide to whom it should address recommendations under Chapter VI and, in particular, against whom may it allow political and economic countermeasures under Chapter VII?
The Security Council seems to be the body able to react against an environ- mental threat to peace and international security, such as climate change, but it cannot determine which State is responsible for such a threat.
The second way in which the international community could potentially respond to an international crisis caused by a climate change-related environmental prob- lem is through the climate change regime itself. How might the international
community respond in the future to a problem that has already occurred (as in the previous example of the India–Bangladesh crisis) or is foreseeable (as in the Tuvalu Islands example) via the climate change regime?
Can the current climate change regime deal with a threat to international peace? Oberthur, Tanzler and Carius make an interesting proposal. They sug- gest that future international crises caused by an environmental problem – for example, political tension between States due to water scarcity as a result of climate change – could be dealt with through the compliance system provided for in the Kyoto Protocol.64 The latter combines an enforcement branch, which is responsible for the detection of non-compliance with the Protocol’s obligations, and a facilitative branch that must assist parties in the implementation of the Protocol’s goals.65 Oberthur et al maintain that this last branch could be:66
[...] an instrument for addressing issues of implementation related to growing conflict potential resulting from climate change.
However, this proposal still relates to a phase in which a threat is imminent. The proposal concerns growing conflict potential. Furthermore, Oberthur et al give an example in which a climate change-related problem, water scarcity in this case, may lead to a traditional armed conflict between two countries. However, it is averred that the climate change regime is not the correct framework for the international community response in such a situation. It is clear that threats to international peace from situations of traditional armed conflict are to be dealt with through the UN Charter mechanism.
However, the proposal by Oberthur et al is valuable because it highlights that the bodies regulating the United Nations Framework Convention on Climate Change (hereinafter “UNFCCC”) and its Kyoto Protocol, are the bodies best able to assess and to deal with climate change-induced problems. What does this imply and how does it help rectify the deficiencies in the UN
Charter mechanism explored in part 3.3.1 above? Let us consider once more the scenario suggested above concerning Tuvalu, a foreseeable future concern. In the case of climate change one might argue that there is no immediate threat to international security in the traditional sense, rather we are facing a dangerous increase in the sea level that may cover small island States in the future.67 Current unsustainable uses of greenhouse gases and climate change patterns are responsible for this dangerous sea-level rise. The reporting requirements of the UNFCCC and the Kyoto Protocol will determine which States are the main contributors to climate change. It will underline which States are responsible for climate change. This argument, inspired by Oberthur’s proposal, highlights a very important element: the international community, through the climate change regime, has the possibility to determine legally who is responsible for current climate change trends.
In order for the Tuvalu Islands to be saved from inundation by the ocean, it is necessary to stop climate change acceleration. One first step to guarantee the existence of the Tuvalu Islands is to oblige States party to the Kyoto Protocol to abide by their commitments, and if States are not in compliance, to use the compliance system to bring them into compliance. However, there are a number of problems with this. Firstly, will the Kyoto Protocol’s compliance system be strong enough to ensure that non-complying States comply with their obligations? Although the climate change regime is considered by many to be an advanced Multilateral Environmental Agreement (hereinafter “MEA”), it still has many of the problems that undermine the effectiveness of international environmental regimes. In fact, one of the main concerns of scholars and States is the power of the Kyoto Protocol’s compliance system. While there is consensus about the lawfulness of possible measures imposed on non-complying States through the compliance system, doubts arise about the political will and power to utilise these measures and to enforce punitive measures, should they be deemed necessary. Secondly, however, the greatest difficulty in reality is the fact that some States are not party to Kyoto.
In conclusion, the second way that the international community may poten- tially respond to the foreseeable climate change-related environmental crisis is through the climate change regime itself, through the compliance system
provided for in the Kyoto Protocol.68 The reporting requirements of the climate change regime will enable the international community to determine which States are responsible for climate change and, of those States party to Kyoto, which have failed to meet their targets. However, on the other hand, it is not clear whether the compliance system will be able to enforce adequate measures against States and it will have no power to do so against States that are not subject to Kyoto’s binding obligations.
A third way in which the international community may respond to a threat to international peace and security caused by a climate change-related environ- mental problem is by linking the traditional UN mechanism, provided for in the UN Charter, with the compliance system provided for in the Kyoto Protocol.
Both systems can answer only part of the problem. On the one hand, the UN mechanism has the instruments to reply to a threat, but it cannot determine against whom to address such measures. On the other hand, the climate change regime can underline the State responsible for current negative climate change patterns, but it does not have enough power to enforce measures against that State particularly if the State is not party to Kyoto. Let us return to the most problematic example where the Tuvalu Islands consider that sea-rise trends, caused by climate change, constitute a threat to international peace. Let us assume that the Security Council has determined that the situation that Tuvalu is facing constitutes a threat to international peace and that it has issued a recommendation maintaining that measures must be taken in order to decrease the current trends. As we have seen, the Security Council faces two problems: firstly, to whom should these recommendations be addressed and, secondly, what kind of measures should they be. At this point the collaboration between the UN mechanism and the climate change regime begins. If the transgressor is party to Kyoto but the compliance procedures have proved inadequate or if the transgressor is not party to Kyoto, the preliminary measures provided for under Article 40 of the UN Charter could be brought into play, partly determined via the climate change regime but enforced by the Security Council. The climate change regime, particularly the Kyoto compliance mechanism if the State is party to Kyoto, may have a role to play in helping to determine the appropriate measures. If a particular State does not follow the Security Council’s recommendations, then the mechanisms provided for in Article 41 would be implemented. The international community understands, at this point, that the only way to oblige
a State whose conduct constitutes a threat to international peace to refrain from such conduct, is to put pressure on it. Thus, the Security Council will allow all UN Member States to adopt political and economic countermeasures against that State. Once again, the collaboration between the Security Council and the climate change regime enables the international community, on the one hand, to determine the State against which countermeasures can be addressed and, on the other hand, to effectively implement punitive economic and political measures, which are deemed necessary in order to change a particular State’s conduct in relation to climate change.69
The author is aware that a proposal of this kind will encounter many sceptics. Furthermore, problems will arise from a political point of view. A brief overlook of current international relations within the Security Council and within the climate change regime highlights an evident obstacle. The US is both a permanent member of the Security Council and is not party to the Kyoto Protocol. It would be naive to think that the next US administration will not only change its current climate policy and ratify the Kyoto Protocol, but also allow international countermeasures against itself.
In conclusion, despite current insurmountable obstacles, such as the US climate policy and the Security Council structure, the author is convinced that now more than ever the international community must follow Ago’s words:70
La solution dans ce domaine [the environment] ne peut venir que du droit et surtout du droit international, seul capable d’organiser l’action commune et concertée des Etats.
And, within the possibilities that international law gives us in the framework of an ex-post approach to climate change threats to the international community, it is necessary to underline the important role that the Security Council could play. Therefore, the author agrees with the proposition maintained by H French in 1992:71
/ Lancaster (1985), at 3. Emphasis present in the original.
Worldwatch Paper, at 35.
The development of an environmental role for the Security Council is an attractive proposition, in particular as the powers of the Security Council to take decisions binding on member states could fill what has been termed the “institutional gap” in international environmental governance.72
4. eX-aNTe aPPROaCh TO CLImaTe ChaNge ThReaTs TO hUmaN seCURITY
Part 3 of this article highlighted an ex-post approach to climate change threats and it provides an analysis of legal and political responses to future scenarios. However, in a traditional armed conflict between two or more States, an efficient response is useful to restore peace, but it does not always heal the wounds of the war and it does not solve the problems that led to the conflict. In an environmental conflict this problem is even more evident. A perfect use of legal and political instruments may stop an armed conflict but it will not solve the environmental problem of climate change acceleration. An ex-post approach is useless in this sense. Therefore, it is clear that, whatever the result of the ex-post approach may be, the international community must take action now. States must cooperate in order to avoid exacerbating current climate change trends that may lead to future conflicts. An ex-ante approach to climate change threats must be fostered.Against this background, this section of the paper will seek to determine, firstly, to what extent the current climate change regime provides an ex-ante approach to possible future threats. In other words, do the UNFCCC and the Kyoto Protocol provide grounds for optimism? Do they provide the international community with useful instruments in order to efficiently tackle climate change? Secondly, the paper will move on to underline possible threats to the efficiency of the climate change regime.
4.1 Is the Climate Change Regime an adequate ex-ante approach?
As we have seen in previous sections of this paper the linkage between climate change and international and human security is relatively recent. Even if it was present during the first efforts to tackle climate change at an international level, it was not a dominant issue. States were concerned about whether the acceleration of climate change was real and how to deal with it. In 1988 the World Meteorological Organisation and the UN Environment Programme created the IPCC and its first report was issued in 1991.73 Therefore, it can
be said that only at the beginning of the nineties scientists and policymakers decided that something had to be done in order to deal with climate change. One of the results of the UN Conference on Environment and Development in 1992 was the development of the UNFCCC, which was signed in New York on 9 May 1992 and came into effect two years later.74 Since then, the climate change regime has been completed by the Kyoto Protocol75 that has recently entered into force,76 and by a number of important Decisions of the UNFCCC Conference of the Parties.77
The goal of this part of the paper is not to describe the climate change regime, but to assess whether it provides the international community with the adequate legal instruments that will help to avoid conflicts in the future. In order to answer our question, we must first ask ourselves what are the causes of the abnormal current climate change trends. In fact, if a future conflict may arise because of a climate change-related environmental conflict, it is essential to see, firstly, whether States have recognised the danger of climate change and, secondly, to consider what efforts they are making to deal with this problem.78 Despite the fact that some States, and in particular the US, tend to disagree, the IPCC has repeatedly stated that current climate change acceleration is due to the activities of mankind. The release into the air of greenhouse gas emissions is the main cause.
The UNFCCC and, later on, the Kyoto Protocol have established a number of mechanisms that aim to oblige States to reduce their emissions.79 The countries
that participate actively in the climate change regime believe that a gradual reduction of greenhouse gas emissions will slow climate change to a level that will not be dangerous for humankind. Is the international community achieving this aim? Some may say that it is too soon to assess the results. The recent entry into force of the Kyoto Protocol has raised public hopes; however, a careful analysis of the situation does not provide too much ground for optimism.
On the one hand, the developed States, identified in Annex I of the UNFCCC, that have ratified the Kyoto Protocol, and thereby committed them- selves to greenhouse gas emission reductions, are not complying with their obligations. A potential reason for this is their fear of losing economic global competitiveness to those States that are not bound by Kyoto. According to Art
3.2 of the Kyoto Protocol, the Annex B developed State parties therein must demonstrate significant progress in the accomplishment of their greenhouse gas reduction commitments by 2005.80 To this extent, most Annex B States have already seriously breached the Kyoto Protocol.
On the other hand, the fact that the US, which accounts for the largest share of greenhouse gas emissions in the world, is not part of the Kyoto Protocol seriously hinders global efforts to tackle climate change.81 Furthermore, the non-participation of the world’s biggest polluter is not the only political obstacle that the climate change regime must face. According to the present rules, developing countries are not bound by reduction targets. However, several booming economies, such as China, India and Brazil, to name a few, are growing at a fast pace. Their economies are growing, and in conjunction, their greenhouse gas emissions are increasing. The climate change regime must deal with the question as to whether developing countries should start to take action in order to reduce their emissions.
Finally, States understood that, prior to 2008, they had to undertake a review of their emission reduction obligations for the second commitment period. According to the Kyoto Protocol, the post-2012 review must begin in 2005.82 However, in 2004, at the COP-10, States only agreed on the need to have a
Seminar of Governmental Experts in 2005 to discuss general climate policy issues and that no binding commitment would be taken therein.83 Therefore, it does not seem that the crucial debate on what will happen after 2012 will start on time.
However, despite the aforegoing, it appears that the current climate change regime is slowly becoming stronger, as more States join the regime, thereby accepting the imperative of the goals. Even if the entry into force of the Kyoto Protocol will not be the panacea to the totality of the climate change problem, it definitely must be seen as a positive signal. A strong and efficient climate change regime is needed in order to tackle the roots of the problem. However, we have seen that international efforts are flawed for several reasons: most States subject to emissions reduction targets have not yet started to seriously reduce their emissions; a number of important States are still outside the regime; developing countries do not want to be obliged to reduce their emissions; and the debate on the position post-2012 has not begun yet.84 Furthermore, while these obstacles arise within the climate change context, there is another threat to the efficacy of the regime that emerges from a different field, and that threat will be analysed in the following sections of this article.
4.2 Trade, environment and human security
Current climate change acceleration will be tackled effectively only if States change their economic behaviour. This does not mean that the lifestyle of those living in developed countries must change radically. To limit greenhouse gas emissions, States’ authorities must, for example, take action in the automobile sector, which is one of the most polluting industrial sectors. This does not mean that people cannot use cars any more; it implies that States must promote the use of cleaner vehicles.85
Therefore, in order to tackle climate change efficiently States must take action against current polluting industrial activities and they must promote measures that foster a greener economy.86 However, this may lead to bans or
limits on products from other countries in order to protect the environment. Could this situation lead to a clash between the climate change regime and other fields of international law?
A conflict between climate and trade is a real possibility and, recently, this issue has attracted research from many authors and policymakers. Before moving on to see how these two regimes may clash, we must highlight the context within which such a conflict may arise. If the clash between climate change and trade may be considered to be a new problem, the relationship between international environmental protection and the liberalisation of international trade (the so-called trade and environment debate) has been dealt with thoroughly in the last two decades. The importance of the trade and environment debate increased after 1994 when the World Trade Organization (hereinafter “WTO”) was created. The ratio of the conflict between the two fields lies in the fact that they are usually considered auto-exclusive. On the one hand, environmentalists consider that free trade may trigger policies and State practices that may harm the environment and, on the other hand, free traders maintain that environmental obstacles to trade are protectionist measures whose main goal is to protect domestic markets.87
Until now the conflict has been dealt with mainly from a legal and economic point of view. The author suggests that the trade and environment debate must be recontextualised. If an environmental problem may constitute directly or indirectly, as we have seen in previous sections of this article, a threat to peace and international security, an equitable and efficient solution to the conflict between international efforts to protect the climate and other interests of the international community must be found. Therefore, the linkage between climate and international and human security reframes the importance of the trade and environment debate and it upgrades it to an issue of global strategic importance. Researchers, policymakers and other stakeholders should start to take into account that, if the gravity of certain environmental problems increases, the response of the international community must be much stronger.
4.3 Trade, Climate Change and International security
Within the new trade and environment security framework climate change acceleration is one of the problems that may constitute in the future a threat
to international peace. Therefore, the efforts of the international community to tackle this problem must be upgraded because climate change is not simply an environmental issue; it concerns a question of international security. Although this possibility was averred to within the first international conferences con- cerning climate change,88 it is clear that the international community must reconsider the nature of the climate change regime and acknowledge that the UNFCCC is, and will be even more so in the future, also a security treaty.89
One of the obstacles to an efficient climate change regime in the future could be the conflict with trade rules. The study of the relationship between climate and trade, which has only gained momentum recently, is of paramount importance because of the global security implications. In particular, there are various climate change mechanisms that may clash with the WTO system.
By way of example, one such problem concerns the current discrimination between developed and developing countries within the Kyoto Protocol. Comparatively, the multilateral trading system is based on the principle of non-discrimination. However, there are potentially two reasons why the discriminatory concept contained within the Kyoto Protocol may be acceptable to the WTO. Firstly, Art XX of the General Agreement on Tariffs and Trade, for example, provides an exception, within limits, to the anti-discrimination rule for measures based on environmental grounds.90 Secondly, a recent appellate body decision maintained that international trade law does not prohibit differentiations between developed and developing countries if these are based on clear, justifiable, and pre-established rules.91
A further problem with the climate change regime that may lead to future conflicts, should it not be addressed, is emissions trading. It will be inevitable
that a system based on trading will enter into some kind of relationship with the WTO system. It will be important to analyse and clarify this relationship in order to avoid any counterproductive clash between climate rules and WTO rules.92 In conclusion, in order to strengthen the ex-ante approach to climate change threats, weaknesses within the climate change regime must be addressed, and possible clashes with other international regimes must be understood. One of the obstacles for the effective working of the climate change regime, particularly the operation of the clean development mechanism and emissions trading, could be a hostile relationship with the multilateral trade regime. However, the conceptual framework within which all stakeholders must move should switch from the trade and environment debate of the past. It is not only an economic vs environmental question. Climate change has ramifications beyond the social, economic, and environmental pillars of sustainable development. Climate change implies something more. The current debate on trade and climate change
is a human and international security issue.
5. CONCLUsION
In this article we have seen how future climate change-related environmental problems, taken in conjunction with other factors of instability, may lead to situ- ations that can constitute a threat to peace and security according to Article 39 of the UN Charter. We have analysed two different approaches to this question: an ex-post and an ex-ante approach.The ex-post approach tries to determine how the international community should react once a threat to peace has occurred. The article has highlighted three possible reactions: through the traditional mechanisms provided for in Chapter VII of the UN Charter; through mechanisms within the climate change regime; or through the linkage between the climate change regime, the compliance system of the Kyoto Protocol, and the Security Council. In this last case, the climate change reporting system would identify the State or States,
contributing negatively to the dangerous climate change trends (the threat to peace). Thereafter, the Security Council would allow, under Article 42 of the UN Charter, political and economic countermeasures to be brought. Thereby, the Security Council would fill the climate change governance institutional gap.93 The ex-ante approach seeks to determine how to avoid threats to peace and international security from the acceleration of climate change. This approach focuses on what must be done today and it underlines that the international community must move to address two primary issues. On the one hand, current climate change policy and law must be strengthened. Obstacles within the climate change regime, such as the tension between developing and developed countries, and doubts concerning the non-compliance system and the post-2012 commitments, must be removed. On the other hand, the international community must highlight and remove any obstacles to an efficient climate change regime that may come from other legal regimes. In this sense, the trade and climate change relationship must be reframed within a human and international security context. WTO rules that may hinder development within the climate change regime,94 as in other environmental regimes, may have to be reformulated in
order to make trade and environmental policies mutually supportive.
In conclusion, this article highlights that climate change is, and will be even more so in the future, a human and international security issue. Greater public awareness of the dangerousness of the current climate change trend is essential, and the first step in highlighting this factor is to bring this conclusion from the books to the streets. Furthermore, this article explains that the problem can be dealt with once a threat has arisen (the ex-post approach) through cooperation between the UN Charter mechanisms and the climate change regime. However, taking into account the political difficulties inherent in this suggestion, a different approach (the ex-ante approach) is strongly recommended. The international community must take action now and strengthen the climate change regime and, where necessary, remove or reformulate trade rules that may hinder the efficiency of global efforts to tackle climate change.
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