Climate Conflicts - A Case of International Environmental and Humanitarian Law

Climate change is increasingly viewed as a security issue. In 2007, a report by the CNA Corporation Military Advisory Board generated broad attention for analyzing climate change as a matter of national and international security. The latest CNA report of 2014 concludes that climate change poses a risk to national security and accelerates global political conflicts.

This chapter establishes the two components ‘climate’ and ‘conflict.’ The risks climate change poses to security are outlined, as well as the ongoing debate on the connection of climate impacts and conflicts.

Two different scenarios of climate conflicts need to be distinguished: (1) GHG emission leads to climate change which damages a state in a way that this damage simultaneously constitutes a violation of certain rights. (2) The more complex pathway also starts from GHG emissions leading to climate change and damage; however, this damage causes certain reactions within a state that may possibly lead to destabilization. Conflicts could be triggered or accelerated due to this process on the national, international, or even global level.

This chapter examines the different pathways from GHG emission to conflict. The anchor of the chapter is a graphic displaying the different pathways and categorizing the damages according to direct and indirect climate change damages and displaying the different levels of conflict.

The second chapter introduces the system of ‘state responsibility.’ Since this chapter covers legal responsibility for climate change, the concept of state responsibility is analyzed with regard to the legal consequences of state conduct for climate change. Thus, the chapter draws on the work of the International Law Commission (ILC). Establishing international responsibility serves as a ground for the discourse in how far international responsibility reaches. The legal consequences deriving from state responsibility will be analyzed later in Chap. 5.

The concept of state responsibility, in which most of the analysis is embedded, requires examining the legal regulations deductively. This means that an internationally wrongful act has to be committed, i.e. a violation of an international obligation. From thereon, the particular primary norm of international law is then scrutinized as to whether the conduct in question qualifies as a violation of the norm. However, the issue of climate conflicts requires an inductive approach, which means the facts are not clearly determined yet. This impediment would actually require to establish the facts and to then analyze whether or not the situation is included in a particular regulation of international law. The same challenge occurred with the drafting of a definition of climate conflicts, mentioned above. Having state responsibility on the one side, which requires working deductively, and the scenario of climate conflicts on the other side, which is alien to international law to date and thus requires to be established inductively, bears methodological difficulties. For reasons of clarity, state responsibility is thus introduced in a separate chapter and not embedded in the analysis of a violation of a primary norm. This would have led to an excessive complexity of Chap. 4. Instead, the analysis of international environmental law is now ‘framed’ by state responsibility, with the preconditions of state responsibility in the introduction of state responsibility and the legal consequences of state responsibility following the analysis of international environmental law.

This chapter examines the applicability of international environmental law to climate conflicts. In this part of the book, the analysis will turn to the direct environmental damage caused by climate change.

Focus is put on the analysis of the climate regime, i.e. the United Nations Framework Convention on Climate Change and the associated Kyoto Protocol. However, other rules, standards, and principles like the Precautionary Principle or the Obligation to Prevent Transboundary Harm are also scrutinized. The contrarian views in how far primary obligations of international law are deducible from international environmental law are analyzed as well.

The analysis here is dominated by interpreting the international regulations with respect to their wording and intent. The Vienna Convention on the Law of Treaties, which provides rules regarding the interpretation of treaties, is used during the analysis. In a separate section, this chapter will turn to the concept of ‘unjust enrichment’ deriving from civil law. It is questioned if this concept may be applicable to climate change damages. To underline the relevance of this chapter, the analysis references to examples of the current situation in Bangladesh.

The goal of this chapter is to appoint public legal liability for climate damages. It points out how far the applicability of international environmental law gives rise to legal claims for damages. In a second step, the range of responsibility is appointed. Allocating conduct and effect in the context of climate change is extremely complex: the temporal, regional, and biographical imbalance of causation and impact is hampering imputation of responsibility.

In relation to environmental damage, the liability rules are still evolving and have to be developed further. However, the question still has to be posed: who compensates whom for these consequences, i.e. damages, under the existing law?

The idea of sovereignty in international environmental law encompasses that each state, as part of the international community, has the sole competence to regulate its environmental matters, e.g., regarding land, water, territorial sea, or airspace. However, not all activities carried out on territorial grounds remain there. Some activities, especially the kind producing fumes or gases, may have strong effects on areas beyond national jurisdiction. This chapter covers the described pathways from GHG emission via climate change damage to conflict. In this scenario, the damage caused by climate change instantly violates a conflict relevant norm. This scenario takes place on an interstate level. In this context, the so-called ius ad bellum, which encompasses the regulations of the UN Charter that ban war, is analyzed. Ius ad bellum is better referred to as the ius contra bellum because the UN Charter in its article 2.4 proscribes to refrain in international relations from the use or threat of use of force. International disputes are to be settled peacefully. The prohibition of the use of force is the centerpiece of the UN Charter. Only under very narrow circumstances that resort to force is legal, that is in case of self-defense or when collective action is taken by the UN members. The UN Security Council is the sole organ that may authorize the use of force.

Article 2.4 UN Charter is only applicable to conflicts arising between states. Thus, in this context the behavior of one state and the effects of this behavior has on another state are analyzed. In the context of ius ad bellum, the work scrutinizes whether climate change imposes force on states in the sense of the UN Charter. In order to ascertain this issue, the analysis has to define the term force in international law. The question whether a possible violation of the prohibition of the use of force leads to a right to self-defense of affected states is also approached.

In the context of IHL, the book also examines whether climate change may generate situations that trigger the so-called responsibility to protect, which refers to the responsibility of the international community to possibly interfere with state sovereignty in cases of great humanitarian need for the civilian population.

The last chapter focuses on clarifying the term ‘climate conflict’ with an emphasis on the social response to climate change. Usually a definition would be the starting point of a legal analysis. As already indicated, this study established the facts of its object while analyzing the very same. The definition can thus not be the starting point of this work, because this analysis is the very requirement to draft a definition.

Despite the fact that the ‘climate element’ of the term ‘climate conflict’ is an addendum to the ‘older’ phenomena ‘conflict,’ to establish the ‘conflict’ component proved to be a higher challenge. Much literature can be found on the law of armed conflict (LOAC). Entire libraries can be filled with books relating to what codes are applicable in times of war and in naval conflicts, conflicts on land and in the air, who has to be protected at what time and under which circumstances. However, it is a real challenge to find a definition of the term ‘armed conflict’ or ‘conflict,’ i.e. the actual object of International Humanitarian Law (IHL). When do all these international regulations apply? What are the preconditions? The last chapter will cover these questions by trying to bring some light into the inconsistently used terminology of IHL, which is discussed at length in the chapter on International Humanitarian Law. The examination later draws on Peace and Conflict Studies to complete the legal definition.

The analysis consisted of two parts: the chapters ‘Climate Conflicts: The Pathways (Chap. 2),’ ‘State Responsibility (Chap. 3),’ ‘Climate Conflicts and International Environmental Law (Chap. 4),’ and ‘Legal Consequences (Chap. 5)’ belonged together; they covered the physical science background on climate change and conflict, state responsibility, international environmental law, and liability. The second part of the analysis consisted of the chapters ‘Climate Change and the Use of Force (Chap. 6)’ and ‘Climate Conflicts and International Humanitarian Law (Chap. 7),’ which covered the UN Charter and IHL. The chapter ‘Definition of Climate Conflicts (Chap. 8)’ then combined the findings of the previous chapters and offered a definition of the term ‘climate conflict.’