Negotiating the Nonnegotiable:
The UN’s Role as a Mediator in Resolving Environmental Conflicts
Beginning from the era of the Second World War, continuing with building post-war cooperation, ending up with the Cold War, going through various humanitarian crises and environmental disasters, this year, as I write this post during a global pandemic and climate catastrophe, the United Nations is celebrating its 75th anniversary. It has been a rocky road full of remarkable recognized and unrecognized achievements, but also with minor and major failures. Today, humanity is facing new types of struggles and uncertainty, challenged by the “The Tragedy of Great Power Politics”, reviewing their liberal, national and patriotic values, experiencing conflicts, as well as threats to rights and security, and not to mention the Biosphere, that is in a state of emergency. (Lyon et al, 2020)
International peace and security underpin the United Nations Charter, which commits the international community “to save succeeding generations from the scourge of war.” The Rio Declaration calls states to “respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.” (Principle 24) Additionally, Principle 25 explicitly recognizes that “peace, development and environmental protection are interdependent and indivisible.” In several resolutions (for example, A/RES/56/4), the UN General Assembly has recently linked armed conflict and exploitation of resources as a source of conflict, and “a threat to durable peace and sustainable development.” The UN Environment Assembly further adopted resolution UNEP/EA.2/Res.15, where the role of healthy ecosystems and sustainably managed resources in reducing the risk of armed conflict was recognized. They, moreover, reaffirmed their strong commitment to the Sustainable Development Goals (listed in General Assembly resolution 70/1, entitled as “Transforming our world: the 2030 Agenda for Sustainable Development.” (Conca, 2015)
As the only international actor who was and is able to navigate member states and other major powers, today, it is time for the United Nations to build peace for all again. The UN’s peacekeeping operations: conflict prevention and mediation, peacemaking, peace enforcement, and peacebuilding, are among the most powerful activities for maintaining the peace and security of the ecosystem that we all (humans, living and nonliving organisms, etc.) are part of. [UN Peacekeeping]
“Conflict prevention, peacemaking, peacekeeping and peace enforcement rarely occur in a linear or sequential way. Experience has shown that they should be seen as mutually reinforcing. If they are used piecemeal or in isolation, they fail to provide the comprehensive approach required to address the root causes of conflict and hence reduce the risk of conflict recurring.” [UN Peacekeeping]
However, it seems like these “mutually reinforcing” activities are not enough to address this new type of conflict — environmental conflict, which requires an addition of another “peace-ensuring” activity to the United Nations’ approach of resolving conflicts. Considering the human-environment entanglements, their relation to injustice, as well as the high possibility of a bigger collision between multiple actors with different interests, there is an urge for the UN to create a better mechanism for a system-wide response to environmental conflicts. Particularly, ones that utilize all the “principles” of the UN Charter, and not only a few of them. While Ken Conca identified four “pillars” of the Charter — law, development, human rights, peace and security (Conca, 2015), an Australian researcher Peter Nadin outlined three main purposes of the United Nations: “‘to maintain international peace and security’ (Preamble); solve ‘international problems of social, cultural, or humanitarian character’ (§1); ‘promote and protect human rights’ (§1).” They both emphasized that peace has always been the centrepiece in UN’s work, unlike the current focus on development. (Nadin, p.12 )Significantly, the UN’s role to make peace is different this time: peace must be established not just between humans and humans, but also (and mainly) between humans and Nature, as António Guterres mentioned in the video below.
Ecosystem Change as a Source of Environmental Conflict
Ecosystems are characterized by balance and stability; they exchange energy and matter flows. The Sun’s energy is the main driver of these flows, and humans have a huge impact on the flows of this energy as well. In the event of an unfavorable external disturbance, ecosystems seek to compensate for it and restore the former, or come to a new dynamic equilibrium. Similar to the process of regeneration in humans. All natural resources are conventionally subdivided into renewable and non-renewable. Many environmental problems associated with renewable natural resources (air, water, soil, fauna and flora), are linked with the state of the ecosystem, which is deteriorating due to human activity. Whereas non-renewable resources (such as ores and fossil fuels!), as a rule, are not permanent members of ecosystems due to their finite amounts on Earth, and do not participate in the cycle of direct reproduction of life on Earth. When fossil fuels are burned, they release an excessive amount of greenhouse gases, which in turn trap heat in the atmosphere. Imagine a capped bottle of champagne (or sparkling water). The movement of these sparkles within the borders of the bottle is natural, but when a human takes the bottle and shakes it, a lot of small bubbles appear which act as nucleation points to release the dissolved gas, when the bottle is opened. Depending on the intensity of shaking, the cap might not be able to resist the pressure, and come off on its own.
The usage of any type of non-renewable resource might be economically beneficial for many, but in turn changes the energy and matter flows, and disrupts the harmony or the equilibrium of the presumably stable and balanced ecosystem, and thus the existence of its inhabitants. In some cases, these changes are irreversible, and can be a source of conflict. In the 21st century, especially during these past few decades, in almost all the regions of the world, environmental conflicts caused by the incompatibility of the goals and interests of various political, economic, legal and social actors with respect to both conserving (“proper use of Nature”) and preserving (“protection of Nature from use”) the state of the environment and what is really necessary for the existence of human beings have become apparent more than ever before. (National Park Service, 2019)
Historically most of the large-scale political conflicts and wars have had a resource background; disputes over land ownership and access to mineral deposits have been the cause of war throughout human history. (McNeish, 2010) Environmental conflicts can be manifested by different struggles such as ones for resources, land, clean air and water. This type of conflict is often disguised as a consequence of natural but de facto human-environmental disasters. Those include: global warming; biodiversity loss; communities that are forced to temporarily leave their homes and find a different place to stay due to an emergency caused by a sudden, unexpected environmental catastrophe (such as flood, earthquake, and tsunami); people who can no longer survive in the conditions where there live (no safe land, air, water), and are forced to destroy their community due to the degradation of their land and join other communities; and those families or individuals who chose the path of economic migrants because of desertification (which has even been linked to suicides!).
A Special Type of Conflict That Requires an Extra Special Resolution
One of the main causes of environmental conflicts is the difference in views of which environmental policies should be considered “optimal”. On the one hand, almost all the ambitious attempts to preserve or improve the quality of the environment are wary of those whose economic interests may be damaged. On the other hand, almost every attempt to stimulate economic development or the introduction of technological innovations are seen as a potential threat to Nature, and the fragile ecological balance. It seems that economic and environmental interests are in a constant and bitter struggle.
The barriers are rooted, as always, in member-state resistance and entrenched interests — but also in weak or skewed institutional incentives, ideational contestation, and they already-constructed frameworks that have made “the environment” a matter of law and development but not of peace and human rights. (Conca, 191)
Environmental conflicts can also be caused by reasons that have a psychological nature: differences in the perception of the ongoing changes in the ecosystem, in assessing the risk, consequences, and effectiveness of the human impact on the environment. For example, for some, the level of environmental risk within 2°C global warming is quite acceptable and does not cause alarm; for others, such a risk probability is extremely high and is a matter of survival. Because of this, there is an increase in the number of environmental conflicts. The possibilities for their timely and effective resolution with the help of familiar social, political and legal institutions are decreasing. At the same time, international experience shows that it is possible to reduce the damage caused by environmental conflicts and manage them more effectively. (Levy/UNEP, 2004)
Certainly, these environmental conflicts bring to our attention a wide range of questions and concerns regarding law, justice and human rights, but also create difficulties for a deep analysis of such conflict as a matter of collision between actors’, and a hidden, well-planned threat to peace and security. The system gets even more suspicious when in reality it is those already living in poverty, smallholder farmers, herders and fisheries, people of color, women and children, that are facing the impacts of the crises the most. Hence, it is important to realize that environmental conflicts have their own specifics, and should not be categorized under any other type of conflict. Thus, it allows to speak of environmental conflicts as a special type of conflict that requires extra special resolutions.
“If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.” (Nelson Mandela)
Why “Special”?
Environmental conflicts are a new special type of conflict since there are a number of features that make environmental conflicts more difficult to manage, in contrast with other types of conflicts. For instance, the dominant peacebuilding and post-conflict recovery activities would not be effective in this situation. The results of environmental conflicts can be irreversible: destruction of land, pollution of air and water, extinction of biological species, food scarcity, migration — and not to mention the irreparable damage to human health (not just the current humans’ but also the future generations’). Unlike in other conflicting situations, no warnings or sanctions can be applied against Nature. It is not possible to negotiate with Nature to restore peace following the outbreak of the environmentally rooted conflict. If we do not act now, we will start seeing leaders and even celebrities on social media calling on the masses to pray for rain because that is our only solution. Moreover, the consequences of human actions cannot be predicted accurately; in a situation of an environmental conflict, it is usually impossible to precisely, or even approximately, estimate the amount of costs (loss and damage) — Nature simply cannot be estimated in monetary terms. Plus, there is often no way to identify all the actors whose interests are being affected by the conflict; and this is the cherry on the cake.
“One could go ahead and grab land, use it and abuse it, without listening to the prophets of doom, since the ground itself kept more or less quiet!” (Latour, 17)
Another reason ‘why’ is the people with different views: educational, feminist, democratic, republican, green, philosophical, and religious beliefs, who participate or should participate in resolving environmental conflicts because situations of acute rivalry for limited resources are very likely. Conflicts of this type, unfold against the background of complex relations between the parties, disagreements about the available information about problems, and actions needed to address them, structural and resource constraints, and most importantly, differences in moral and environmental value systems. Therefore, as opposed to bilateral conflicts, environmental conflicts usually involve multiple participants with divergent perceptions of the situation, varying interests, amounts of power, and capabilities, mismatched expectations, and different levels of knowledge, experience and skills. Because of these numerous “differences”, environmental conflicts are harder to resolve; for each specific problem and situation, the reached resolution is unique. Nonetheless, as “access to environmental information, jurisdiction, class action suits, public participation in investment projects and the availability and dissemination of environmental information and education play a significant role in democratising and empowering societies.” This is a critical aspect for the resolution of environmental conflicts. (Carius A./Adelphi Consult, 11)
Yet, the most common way to resolve environmental conflicts is through a court. The judiciary, being one of the branches of the government, is based on the legal system, and their decisions are perceived as the most legitimate ones. In most states, there is a wide range of means to enforce a judgment by all parties. At the same time, as practice shows, in rather complex environmental conflicts, the court often fails to always fully take into account all the circumstances of the case: first, the “fairness” of the decision can be challenged by the losing party, and second, the existing legislation does not cover all possible cases and circumstances. In addition, the decision is being taken by the court in favour of a party, which provokes the disagreement of the other party, a desire to delay the execution of the court decision, challenge it in a higher instance, or continue to defend their own interests in other ways. In the ideal case with no underlying power dynamics and corruption, the parties, as a rule, are not the ones making the decision; the decision is made “for them,” and not “by them.” However, such litigation can last for months, and sometimes even years, with significant costs for all the parties involved. In the meanwhile, the state of the environment can deteriorate rapidly and the conflict can escalate faster than expected. (Carius A./Adelphi Consult, 2006)
The situation is roughly the same in the settlement of environmental conflicts through arbitration. The main difference from the court is the ability of the parties to influence the decision of the arbitrator, and the obligation of the parties to comply with the decision, and even then, it is possible only when the arbitration occurs by the voluntary consent of the parties. In the case of compulsory arbitration, the procedure is almost the same as in court. (Ratliff/Permanent Court of Arbitration (PCA), 2002)
A Statement by the PCA made at the World Summit for Sustainable Development in Johannesburg, South Africa in 2002 provides an arena where States can “resolve all their environmental disputes peacefully, in accordance with the Charter of the United Nations”. Guided by Principle 10 of the Rio Declaration, they are “providing to all ‘concerned citizens’ 1) the possibility for access to justice, 2) redress, and 3) remedy, beyond what is presently available in any other set of procedures or judicial forum.” (Ratliff /PCA, 2002)
Are there any alternatives? Is it possible to prevent and manage environmental conflicts more effectively, reduce costs and take into account the interests of all the parties involved in the conflict?
Extra Special Resolutions: Mediation and Negotiation
Since the 1970 such methods of conflict resolution as mediation and negotiations are becoming more widespread in the world. Mediation is becoming a surefire way to avoid protracted litigation when parties “fight” each other over real or potential environmental damage. The potential of mediation, which is voluntary joint actions of the parties involved in the conflict to study and overcome existing differences [JAMS, 2020], attracts the attention of environmentalists. Today, organizations and individuals whose main occupation is “mediation” have become an integral part of the professional community of conflict resolution experts, including ones of environmental matter. The development of this area of activity is decentralized, leading to the emergence of significantly diverse and plural views on the best ways to resolve conflicts. It is significant to note that a number of examples of mediation involved in environmental conflicts are not widely known and scientifically evaluated. The UN and social movements seem to be obvious ones. However, not all the actors causing the conflict and/or benefiting from it are always known or obvious in the cases of environmental conflicts.
What are “negotiations” or “dialogues”? Usually people think of these as high level meetings between representatives of states or organizations, and do not notice that we all are negotiating almost constantly, every day, exchanging information with other people and making joint decisions about coordinated actions in the near or distant future. Sometimes we are part of negotiations without being aware of our participation, influence and non-influence in the processes and decisions of the negotiators. Thus, successful negotiations require participation of all actors, patience/time, willingness to compromise, empathize, as well as a result, that satisfies all participants. When assessing the outcome of negotiations, one must first ask: how much better is the situation now than if there were no negotiations at all? It is also necessary to compare the alternatives that existed besides the negotiations. Even if the outcome of negotiations is not the best possible, you would still get more than you could get without entering into negotiations, and therefore, they can be considered successful. The question must also be asked: how long and to what extent will the agreement reached be respected by all participants? In the case of environmental negotiations, is the achieved agreement supposed to be fair (which is often defined in line with the perpetrators’ interests) or just?
In a simplified case, the conflict of interest (with lawyers as mediators) is between “environmentalists” who are concerned about the state of Nature and the scarcity of resources, and “economists”, whose views are dominated by “economic efficiency and development,” But can these two actors agree? Economists differ from environmentalists with their value system and approach to environmental problems — with a focus on costs and benefits, rather than rights and justice. Environmental conflicts are not less (if not more) “horrendous”, and present devastating threats to peace and security, and thus, must be a concern of all Humanity. Therefore, the answer is yes, they can; first, they already agreed to negotiate, second, they reached principles such as sustainable development, carbon markets, technologies for carbon dioxide capture and storage, and recently, nature-based solutions. So the question is more about the time needed to finally realize that there are certain situations which are not negotiable. This should not sound so authoritarian, considering the lockdowns, border-closures, and the number of restrictions because of the ongoing pandemic. Furthermore, successful resolutions to major environmental conflicts, such as climate change, should not be totalitarian, where only one out of two actor’s solutions is being implemented, but must require plural views of the conflict, deeper structural analysis, which will reveal all the disguised aggressors who were and are triggering the conflict, all the parties who are being influenced by it, and significantly, find the right and needed participants who can collectively and kindly solve this emerging type of conflict. The biggest challenge is to thoroughly identify the conflicts of environmental matters, since most of them are discreet behind social struggles, as opposed to ecological struggles (for example, poverty). Many of the current models and approaches are often adopted without taking into account their compatibility with the “local” way of life, traditions, indigenous knowledge, cultural attitudes, and suitability for solving specific environmental problems of a particular country. Therefore, the Western models of conflict resolution cannot be applied to countries with completely different social, cultural, ecological, religious, economic and political realities. Thus, when introducing various methods for resolving environmental conflicts a number of difficulties has to be overcome. Those include but are not limited to legal mechanisms, limited powers of environmental agencies and social movements, competition between public and private sectors, institutions, government bodies, states, as well as the reluctance of various actors to abandon direct “aggression” (e.g. fossil fuels), political lobbying, lack of financialization, distribution and sustainable use of natural resources, scientific, traditional, and indigenous knowledge. (De Coning, 2010)
The Missing Dimension: Socioecological Conflict
In this post I attempted to outline how environmental challenges are entwined with conflicts, and how they are a threat to peace and security. I discussed that environmental conflicts should be viewed in a different dimension since those are not just between individuals, companies, or countries (it is actually a fusion of these), but also between human beings (as homo sapiens) and other biotic and abiotic components that shape the biome. (Figure 1 — adapted from Maebe et al., 2018 and 2019).
The biome consists of biotic and abiotic factors, as well as human activities which influence the ecosystem, which as discussed above, must be balanced, and therefore these components must be in harmony. It is important to remember that abiotic factors do not depend on biotic factors for survival, yet biotic factors depend on abiotic factors for survival, while human survival depends on both of these factors. That is why all organisms have their own ecological niches, which are meant to keep the ecosystem stable/balanced/in harmony.
The domination of one of the ecological niches is a source of conflict. According to the Competitive Exclusion Principle (a.k.a. Gause’s law), “two species with identical niches cannot coexist indefinitely”. The reason is the competition for identical resources. (Kneitel, Encyclopedia of Ecology, 2008) Homo Sapiens attempt to compete with biotic factors, such as fossil fuels, which causes major ecosystem disturbance, and hence the abiotic factors are reacting accordingly — through global air temperature rise and intense environmental catastrophes.
So, homo sapiens versus biotic factors: what a duel?! The battle becomes more dangerous when both of these ecological niches (humans’ and biotic factors’) are being endangered by the disturbed abiotic factors. Such an attempt of one of the ecological niches to dominate others, disturbs the balance of the ecosystem, and causes abiotic factors impact the growth and lives of plants and animals (including the social ones). In severe cases, such changes can disturb the harmony of the entire ecosystem, and hence, human activities must be adjusted accordingly. Considering that human survival is dependent on biotic factors — which are highly dependent on vulnerable-to-human-activities abiotic factors, there is always uncertainty and reasons to be concerned about the balance of the ecosystem — due to human activities and attempts to compete with other organisms’ ecological niches, the biological range is endangered.
Environmental challenges may not directly cause conflict or war (at least today) but that is because it is the nature of environmental conflicts. If we extrapolate the idea of ecological niches to politics, we see a similar picture: certain countries (developed) compete with other countries (developing), which causes not only ecological disturbances but also social ones. The outcome of a socioecological conflict can be drastic since, As Gause’s law states, “one of the species would drive the other to extinction,” if two niches are competing for the same resources (i.e. cutting the other from access). Thus, environmental conflicts, or socioecological conflicts, present a major threat to peace and security; these are special types of conflict because the conflict is not only between humans and humans, people and people, but also between humans, biotic and abiotic factors who influence the ecosystem and depend on that ecosystem.
I also tried to highlight that the United Nations is the only platform that can distinguish between and address both the “human-nonhuman” as well as the socioecological conflict. When attempting to find a resolution, one should go back to the Principle 21 of the Stockholm Declaration which affirmed states (a composition of humans) to a “sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”
Maria Ivanova pointed out that “despite mistrust and suspicion between developing and developed countries…the Stockholm Conference…built the foundation for new international legal agreements to address environmental problems…”(Ivanova, 2020)
What happens when the system affirms sovereign rights to other ecological niches as well? What would be different if biotic factors also had rights to their “own resources”?
“Just as the UN has been slow to acknowledge and articulate environmental human rights, it has been unwilling to embrace a broad ‘environmental security” mission to complement its developmental and legal initiatives for sustainability.” (Conca, 148)
Nadin highlights that the UN is a set of governments, and is funded by governments, and the resolutions are decided by governments. Hence, points figures at the member-states for all the “failures and success” of the United Nations. Ultimately, he highlights the member-states’ “critical role in empowering and disabling the organisation.” (Australian Quarterly, Nadin, 19) The UN has shown initiatives, brought dialogues to the table, and started negotiations around human right to clean and healthy environment. Similarly, they have been showing willingness to implement peace-and-conflict dimensions to environmental issues through peacebuilding, peacekeeping and cooperation programs for maintaining international peace and security. However, as discussed above, environmental issues include way too many participants with too many views and interests, and it is critical to take into consideration all the perspectives. However we are missing one factor: if humans can negotiate with each other, Nature does not negotiate. Thus, in order to resolve environmental conflicts, the UN must take the initiative to shift away from certain geopolitical and economic frameworks, in favor of human-rights-and-peace-centered frameworks that “emphasize people’s vulnerabilities and capacities”, as well as highlight the rights of other ecological niches. (Conca, 188)
“… member-states are the principles of the organisation — and therefore bear greatest responsibility for failure and success.” (Australian Quarterly, Nadin,19)
References:
[1] Lyon A., Stiles K., Edgar A., Mills K., and Romaniuk P. The 75th Anniversary of the United Nations: Looking Back and Looking Forward. Global Governance: A Review of Multilateralism and International Organizations, v.26: is.2, pp. 199–212., 2020. https://www.researchgate.net/publication/342126063_The_75th_Anniversary_of_the_United_Nations_Looking_Back_and_Looking_Forward
[2] Conca K. An Unfinished Foundation: The United Nations and Global Environmental Governance. Oxford University Press, 2015.
[3] United Nations Peacekeeping. TERMINOLOGY.
https://peacekeeping.un.org/en/terminology
[4] Nadin P. The United Nations: A history of success and failure. Australian Quarterly, v.90.4 (Oct-Dec), 2019. https://www.scribd.com/article/428230809/The-United-Nations-A-History-Of-Success-And-Failure
[5] National Park Service. Conservation vs Preservation and the National Park Service. 2019. https://www.nps.gov/teachers/classrooms/conservation-preservation-and-the-national-park-service.htm#:~:text=Conservation%20is%20generally%20associated%20with,protection%20of%20nature%20from%20use
[6] McNeish J. RETHINKING RESOURCE CONFLICT, WORLD DEVELOPMENT REPORT 2011: BACKGROUND PAPER, 2010.
[7] Levy M. Understanding Environment, Conflict, and Cooperation, chapter 3: Early Warning and Assessment of Environment, Conflict, and Cooperation, pp. 38–47. UN Environment Programme and Woodrow Wilson Center, 2004. https://www.researchgate.net/publication/281108636_Early_Warning_and_Assessment_of_Environment_Conflict_and_Cooperation
[8] Latour B., Down to Earth: Politics in the New Climatic Regime. Cambridge: Polity, 2018.
[9] Carius A./Adelphi Consult. Environmental Cooperation as an Instrument of Crisis Prevention and Peacebuilding: Conditions for Success and Constraints. Berlin Conference on the Human Dimensions of Global Environmental Change “Resource Policies: Effectiveness, Efficiency, and Equity”, Berlin, 2006. https://userpage.fu-berlin.de/ffu/akumwelt/bc2006/papers/Carius_Peacemaking.pdf
[10] Ratliff D. (Assistant Legal Counsel at the World Summit for Sustainable Development Johannesburg, South Africa). Statement by: Permanent Court of Arbitration (PCA), Division for Sustainable Development Goals (DSDG), 2006. https://sustainabledevelopment.un.org/index.php?page=view&type=255&nr=19681
[11] JAMS Mediation, Arbitration, ADR Services. Mediators Ethics Guidelines. 2020. https://www.jamsadr.com/mediators-ethics/
[12] De Coning, C. Mediation and Peacebuilding: SRSGs and DSRSGs in Integrated Missions. Global Governance, vol. 16, no. 2, pp. 281–299, 2010. www.jstor.org/stable/27800807.
[13] Figure 1: a) Maebe L., Pipart N., Dendoncker N., Claessens H., Dufrêne M. Comment révéler les multiples rôles de la biodiversité pour le bien-être individuel et collectif ? Un appel pour relancer la plateforme wallonne sur les services écosystémiques. Forêt.Nature, v.147, pp. 22‑34, 2019. https://orbi.uliege.be/bitstream/2268/226755/1/FO147-22-34-1_version_finale.pdf
b) Maebe L., Claessens H, Dufrêne M. The critical role of abiotic factors and human activities in the supply of ecosystem services in the ES matrix. One Ecosystem Journal, v.4: e34769, 2019. https://oneecosystem.pensoft.net/article/34769/element/4/5157330//
[14] Kneitel J. Gause’s Competitive Exclusion Principle. Encyclopedia of Ecology, 2008. https://www.sciencedirect.com/topics/agricultural-and-biological-sciences/competitive-exclusion-principle
[15] Ivanova, M. Coloring the UN Environmental: The Catalytic Rote of the UN Environment Programme. The Free Library, April 2020. https://www.thefreelibrary.com/Coloring+the+UN+Environmental%3A+The+Catalytic+Rote+of+the+UN...-a0634301131
