Redrawing The Map
There are a lot of things humans do right, when given the chance. One of them is basing societies on the rule of law, rather than the rule of mobs. Yet writing laws, treaties and regulations is not a stand-alone undertaking. Before starting, other relevant laws must be examined to make sure there are no contradictions, and the implications of the new measure must be “gamed” in order to ensure that it will accomplish the desired outcome. The process is similar to building a new house in a heavily populated area. During the design phase, you have to make sure that it links with existing infrastructure, won’t infringe on anyone else’s territory and that, ultimately, it will still be a comfortable place to live.
While the international community has become fairly good at writing laws, treaties, regulations and similar measures, the vast majority still take one thing for granted: that the physical environment which they govern will not change. Yet environmental change can swamp and paralyze legal infrastructure in the same way flooding can damage heavily populated areas, and that can have a direct impact on security and geopolitics.
Water: conflict or cooperation?
Water-sharing agreements provide a clear case in point. When it was signed back in 1959, the agreement between Egypt and Sudan governing access to the Nile divided the entire estimated flow of the river at the time between the two countries, allocating 18.5 billion cubic meters to Sudan, and 55.5 billion cubic meters to Egypt. In the years since, Egypt and Sudan have each built dams and irrigation systems, chosen crops and allowed settlements all on the assumption they will always be able to extract the same fixed amount of water.
This, however, is not at all a certainty. For one thing, the Nile passes through several other nations, including Rwanda, Burundi, Democratic Republic of Congo, Tanzania, Kenya, Uganda and Ethiopia. As these countries aren’t guaranteed supply, they have little incentive to protect the river system. As a result, water quality and flow is already degrading. At the same time, changes in precipitation and temperature patterns have the power to affect river levels, and population increases are adding to demand, all of which can combine to cause interlinked economic, political and security problems.
These sorts of rigid treaties clearly don’t hold up under new realities. This was acknowledged by the leaders of the Nile states when, in 1999, they founded the high-level Nile Basin Initiative to try to reach a more flexible and stable agreement for water usage and sharing along the Nile.1 The need to find peaceful solutions is urgent, because if national governments don’t back citizens in their quest to secure water, it is possible communities along the banks of the Nile will take matters into their own hands—potentially with the support of outside forces who would benefit from more instability in the region.
Nor is the Nile situation an isolated one. The Lake Mead and Lake Powell reservoirs in the western United States went from close to full in 1999 to around half-full by 2007,2 prompting attempts to create a new, more adaptive agreement to govern the sharing of water. But with so many interests vying for the increasingly scare resource, the agreement is currently caught up in the courts.3 There are also concerns that water sharing between the U.S. and Mexico may become problematic as the environment changes. As Anne Castle, the Interior Department’s Assistant Secretary for Water and Science, put it recently: “In the face of climate change, we have to evolve, we have to adapt our operations.”4
In many cases, understanding what is needed, and successfully adapting, can bring about ancillary positive side effects. In Israel, for example, it was acknowledged long ago that water has the potential to inflame regional relations, and that supply is limited and variable. While the situation can still be tense, a large-scale rollout of desalination technology has helped to increase water supply, and grassroots initiatives—such as the “good water neighbors project”5 that brings Israeli, Palestinian and Jordanian communities together to work on regional water issues—have had some success in turning water from a source of conflict to a common cause. These efforts take constant maintenance and monitoring, and require flexibility and investment. In the region, the stakes of falling behind the tide of necessary adaptation to environmental change are impossibly high, and one critical component of ensuring that water is a pathway to peace, not a cause of conflict, is enacting adaptive legal and regulatory frameworks that can manage the coming change.
These vignettes provide a microcosm of the national security and foreign policy dilemmas that might be brought about or exacerbated by environmental change. Yet the discussion of the large-scale adaptation of legal infrastructure to these shifts is still relatively newborn. In many ways that we are only now starting to understand, legislation that seems to have little to do with the environment will also be affected.
Sea of trouble
Take the UN Convention on the Law of the Sea, also known by its acronym, UNCLOS.6 Enormous effort was put into designing this comprehensive agreement that, among other things, normalizes maritime boundaries between nation-states. Most countries have signed on to the convention, and even in the United States—one of the lone holdouts—there now seems to be growing political momentum for ratification.
One tenet of the Convention is that coastal nations can claim a 200-nautical-mile exclusive economic zone (EEZ) off their coastline. To do that, the nation deposits a map of its claim with the Convention authorities and, once approved, the claim belongs to it, unless challenged by another state.
What this presupposes, however, is that the coastline itself won’t change. But what if the coastline is a delta, as with Nigeria, or Bangladesh, and a relatively small sea-level rise pushes the coastline inland by a few dozen miles. Will the EEZ retreat by a commensurate amount?
Similarly, if an offshore island is anchoring an EEZ claim, and it disappears, say due to rising sea levels, does the claim disappear along with it? And, in an extreme example, but one that highlights the complexities of these issues, if an entire nation, such as the low-lying Maldives, becomes uninhabitable or submerged, and needs to be evacuated, does it cease to exist as a country? Does it lose its seat in the UN? Do the waters become international waters? And if the islands submerge and are depopulated, but then reemerge in the future as a result of lowering sea levels, who will own them then?
Because a substantially changing coastline and large-scale disappearance of islands was not accounted for in the Convention, the answers may become less a matter of law and more a matter of politics. Very simply put, the way the Convention works is that unless the approved map is changed by the state in question, or challenged by another state, the borders exist as they were according to the map. This arrangement, however, opens up the possibility of political blackmail, in which the threat to challenge a changed border could become a lever to accomplish an entirely different end.
Currently, some nations threatened by substantial coastal change or extinction are trying to enact one-off fixes (Bangladesh, for instance, would like to fix its borders in perpetuity, in part so that it can clear the way for offshore hydrocarbon exploration7), or examining the possibility of bilateral arrangements that bypass the Convention entirely, as with the Maldives and India. One idea floated by the Maldives was that its entire population of approximately 310,000 could move to nearby India.8 What is unclear, however, is if India would then extend its own maritime EEZ to incorporate the erstwhile Maldivian EEZ—potentially administering fishing/mining rights, etc., on behalf of the new Indo-Maldivians, and thereby providing the settlers with a guaranteed income. That, of course, would have the corollary effect of giving New Delhi extended reach into the strategically important Indian Ocean.
The bilateral arrangement being considered by India and the Maldives could become a model for other threatened nations. If New Zealand, for example, takes in the approximately 115,000 citizens of another threatened atoll nation, the Republic of Kiribati in the Pacific, could New Zealand help protect and exploit Kiribati’s maritime EEZ, which is about the size of India, on behalf of its new residents? If so, could China offer a competing bid to take them in, in exchange for the same sort of arrangement?
This is literally uncharted territory, and developments and precedents need to be very closely monitored and assessed. So far, the response has tended to be more reactive than proactive. For example, in September 2009, news broke about a Mexican island off the Yucatan coast that, though appearing on maps dating back centuries, didn’t seem to be there anymore.9 This was a rather large issue for Mexico as the island was the basis for a 55-mile extension of its EEZ into potentially hydrocarbon-rich waters. Some in Mexico even claimed the CIA had deliberately blown it up. The U.S. position was simple: no island, no claim.
This is a precedent that might come back to haunt U.S. policymakers, however. The Cuba–United States maritime border, for example, was set by a 1977 bilateral treaty that is renewed every two years. It is based on the equidistant principle, under which the border is set halfway between the two countries. The Cuba coastline is fairly stable and above sea level. The U.S. coastline, however, is not. It uses as its starting point the Florida Keys, an extremely low-lying area that may eventually be rendered uninhabitable by rising sea levels.
What this means is that it is not inconceivable that, at some point, the new coastline for Florida is up around Miami. Leaving the Bahamas aside for hypothetical purposes, if Cuba (potentially backed by Russia, which is already drilling for hydrocarbons in Cuba’s Gulf waters) brings up the U.S. precedent—no island, no claim—the next time the treaty comes up for what should be pro forma ratification, it could get tricky. Of course, this is unlikely to happen, but even the threat of a challenge to claims may become a factor in international relations because of the failure of law to incorporate environmental change.
The scramble for the Arctic
Interestingly, the one area where there is a lot of talk about threats to sovereignty as a result of environmental change—the Arctic—is actually one of the regions where the Convention is likely to prove useful. While there is some coastal erosion in the Arctic, the coastlines are unlikely to change dramatically in the foreseeable future and the continental shelf claims are largely based on underwater geology. The idea that there have to be people living in specific parts of the high Arctic for the claims to be valid is legally inaccurate.
There is one legally fuzzy area that could become a security problem, however, and that is the Northwest Passage.10 The Northwest Passage largely weaves through the islands of the Canadian Arctic. It can cut a substantial distance off travel between the Atlantic and Pacific. The London-to-Tokyo route, for instance, is thousands of miles shorter than traveling via either the Panama or Suez Canals.
Using the Convention, Canada claims the Northwest Passage as its internal waters, giving it the legal right to control entry and search and seize vessels it considers a danger. The United States, and much of the rest of the world, considers it to be an international strait, stipulating free access for all. While this might seem a good thing from a U.S. point of view, it makes it legally difficult to stop suspect vessels, including submerged military submarines, ships full of illegal immigrants, and cargo vessels carrying weapons. The underlying assumption of the freedom of the seas doctrine is that the seas are free, but under U.S. watchfulness. Unfortunately, in the Arctic the United States is woefully inequipped to be effective.
Russia has around 16 icebreakers, many of them nuclear-powered. By comparison, the U.S. and Canada have no nuclear-powered icebreakers, and a few years ago, the United States had to rent a Russian vessel to get to the U.S. research station in the Antarctic.
Applying freedom of the seas in a rapidly thawing Arctic could seriously undermine North American and U.S. security, especially as China also becomes a more ambitious polar nation. The PRC has an icebreaker and research stations in both the Arctic and Antarctic.11 As bilateral relations between Canada and China have recently been tested over attempts at large investments by Chinese companies in the oil sands, China has opened a second line of engagement with the people of the North. In a bid for secure supplies of natural resources, and strategic advantage, it is actively trying to build ties to the aboriginal communities in Canada that control access to resources through land claims. In the fall of 2008, over two dozen chiefs and representatives went to China at the invitation of the Chinese Communist Party. According to delegation head Chief Calvin Helin, “Canadian aboriginals own or control about a third of the Canadian land mass,” and, he said, they went to Beijing to “tell China that Aboriginal Canada was open for business.”12 He told Chinese political and business leaders that “the biggest source for uncertainty for developing natural resources in Canada is aboriginal land claims. If aboriginal people are your partners, that uncertainty disappears.” Another member of the delegation, Chief Glenn Hudson, explained, “Our future is not only in Canada, but partnering with other countries.”13
Increased, unfettered and unmonitored shipping by China to resource access points in the North American Arctic is a real possibility, and the U.S. position on freedom of the seas is what makes it possible. This is a case where environmental change is opening up new security vulnerabilities, but unchanged mind-sets are restricting the ability of existing laws to adapt to the new conditions. Ideally, the United States and its allies would work with longtime partner Canada to ensure that Northwest Passage shipping is safe. This could be complemented by, in conjunction with Russia, setting up a verification site at the Bering Strait and requiring all shipping going in to the Arctic to pass safe standards. A toll could be charged, that would go to defray the cost for the increased need for patrols and search and rescue in the Arctic. The cost to the shipping line could be offset by lower insurance premiums, as the insurers would be assured that standards were being met. Similar sites could be set up at eastern entry points, such as Iceland or the Faroe Islands and could double as cargo hubs.
All of this, however, would take a proactive, cohesive approach to the relationship between law and environmental change, rather than the reactive, piecemeal one that prevails today. Many critical pieces of legal infrastructure, including water-sharing agreements and UNCLOS, but also fisheries treaties, agricultural subsidies, local zoning regulations and more, all make the same sort of assumptions about the environment remaining stable.
For example, much of the stimulus package funding for infrastructure did not include an assessment to ensure that the new or rebuilt infrastructure was in a location that was protected from environmental change. Also problematic is the National Flood Insurance Program. This perpetually money-losing government-funded program steps in and backs flood insurance policies when private insurers deem them too much of a risk. The result is that infrastructure and people continue to be located in areas that are known danger zones, risking not only economic development but also human safety. Once the impact of environmental change on those zones, and the ones nearby, is included in the analysis, the folly of the way the program is currently being implemented becomes even clearer. The taxpayer is subsidizing an increasing potential for disaster.
This is particularly problematic as the United States has the tools to substantially increase physical defenses against environmental change. For now, however, not only are many legal mechanisms creating vulnerabilities, others which are designed to protect and promote growth are not taking full advantage of what is on offer. For instance, because of the way projects are chosen, a force that should be one of the United States’ best defenses against environmental change, the U.S. Army Corps of Engineers, has often served to undermine physical resilience, as was tragically seen with the failure of the levees and the inappropriately designed waterways that contributed to the flooding of New Orleans by Hurricane Katrina in 2005. One problem is that protection of existing developments is not properly valued, making it difficult to justify the expenditure of building a defense for what is already there, in comparison to putting up entirely new developments elsewhere. As a result, new subdivisions are built on what was, until recently, swampland, while historic districts are left inadequately protected.
Ideally, legislation would require all new Corps projects to include an environmental change assessment component, protection of existing infrastructure would be properly valued, and the Corps itself would develop expertise in adaptation techniques and technologies. This could work well with soft power initiatives employed by the Department of Defense to build trust through helping allies bolster environmental security. The U.S. national security community, after all, is acutely aware of the destabilizing impact of environmental change. According to the National Intelligence Council, the intelligence community’s clearinghouse for information and analysis, over 30 U.S. military installations are at risk of rising sea levels, and the Pentagon’s 2010 Quadrennial Defense Review includes a section on “Crafting a Strategic Approach to Climate and Energy.”14 So far, however, this expertise is not being fully utilized to help build non-military domestic environmental security.
Unless that new variable of environmental change is included, instruments designed to make us safer and promote growth could end up generating new and entirely unnecessary vulnerabilities. Moreover, in many cases, incorporating environmental change into laws, treaties, regulations, and so on, is just a matter of asking the right questions. Getting it right will ensure strong, stable nations and relations, bolstered by an adaptive rule of law—and it is a matter of growing urgency and importance for domestic, and global, security.
Cleo Paskal is a Fellow at Chatham House, London, and a consultant for the U.S. Department of Energy’s Global Energy and Environment Strategic Ecosystem. Her book Global Warring: How Environmental, Economic, and Political Crises Will Redraw the World Map was published by Palgrave Macmillan in January 2010.
- Patricia Kameri-Mbote, “Water, Conflict, and Cooperation: Lessons from the Nile River Basin,” Woodrow Wilson Center for International Scholars, Navigating Peace no. 4 (January 2007), http://www.wilsoncenter.org/topics/pubs/NavigatingPeaceIssuePKM.pdf.
- Randal C. Archibold, “Western States Agree to Water-Sharing Pact,” New York Times, December 10, 2007.
- Bettina Boxall, “Colorado River Water Deal Overturned,” Los Angeles Times, January 15, 2010.
- Anne Castle, remarks as prepared for delivery at the Colorado River Water Users Association, December 10, 2009, http://www.interior.gov/secretary/speeches/121009_speech_castle.html.
- Friends of the Earth Middle East, “Environmental Peacebuilding Theory and Practice: A Case Study of the Good Water Neighbours Project and In Depth Analysis of the Wadi Fukin/Tzur Hadassah Communities,” January 2008, http://www.foeme.org/index_images/dinamicas/publications/publ93_1.pdf.
- United Nations Convention on the Law of the Sea, 1982, http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
- “Bangladesh, Myanmar Agree to Compromise on Sea Boundary Dispute,” Indo-Asian News Service, January 9, 2010.
- “Maldivian President on Five-Day Visit to India,” The Hindu, October 20, 2009.
- Matthew Campbell, “Oil Boom Fuels Mystery of the Missing Island in the Mexican Gulf,” Sunday Times (London), September 6, 2009.
- For more on security in the Arctic, see Cleo Paskal, Global Warring: How Environmental, Economic and Political Crises Will Redraw the World Map (New York: Palgrave Macmillan, 2010), 65–125.
- Jo Chandler, “China Flags Polar Resource Goals,” The Age, January 7, 2010.
- Rhéal Seguin, “Native Group Forging China Link,” Globe and Mail, November 13, 2008.
- “Aboriginal Chiefs Pitch Business Deals to China,” Canwest News Service, November 4, 2008.
- United States Department of Defense, Quadrennial Defense Review Report, February 2010, 84.