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Overcoming the “Logic of Exception”: A Critique of the UN Security Council’s Response to Environmental Damage from the 1990–91 Gulf War

  • Eliana CUSATO (a1)
Abstract

This paper examines the UN Security Council’s [UNSC] response to the environmental impact of the 1990–91 Gulf War and its relevance to ongoing debates on environmental protection during armed conflict. With Resolution 687/91, the UNSC referred to “environmental damage and depletion of natural resources” in the context of war reparations, and established the UN Compensation Commission [UNCC] to process environmental claims. Whilst this is often hailed as a success story, this paper raises questions about certain dimensions of the UNCC: the choice of the applicable law; the decision-making process, particularly in relation to causation and remedies; and its punitive/biased nature. It argues that the successful outcome of the environmental compensation regime cannot be separated from the UNCC’s exceptional application of international legal norms. By drawing attention to this “logic of exception”, I suggest that alternative responses, more attentive to the dynamics of contemporary conflicts and their multiple environmental impacts, should be imagined.

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PhD Candidate, Faculty of Law, National University of Singapore. An earlier version of this paper was presented in November 2015 at the Biennial Conference of the Asian Society of International Law. I wish to thank my supervisors, Assistant Professor Cheah Wui Ling and Assistant Professor Vincent-Joël Proulx, and the participants to the NUS Faculty of Law Doctoral Reading Group for their feedback on an early draft of this paper. I am also truly grateful to the anonymous reviewers for their thoughtful and generous comments. Errors and omissions remain my own.

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1. Wim ZWIJNENBURG and Annica WALEIJ, “Fire and Oil: The Collateral Environmental Damage from Airstrikes on ISIS Oil Facilities”, blog of the Toxic Remnants of War Project, 13 January 2016.

2. See in general, UNEP, Environmental Issues in Areas Retaken from ISIL: Mosul, Iraq, September 2017.

3. Ibid.

4. Report of the International Law Commission on the Work of its 65th Session, 6 May–7 June and 8 July–9 August 2013, A/68/10, 28 May 2013, para. 130.

5. FALK, Richard, “The Environmental Law of War: An Introduction” in Glen PLANT, ed., Environmental Protection and the Law of War: A “Fifth Geneva” Convention on the Protection of the Environment in Time of Armed Conflict (London: Belhaven Press, 1992), 78 at 93. In more recent times, this position has been restated by UNEP: MREMA, Elizabeth Maruma, BRUCH, Carl, and DIAMOND, Jordan, Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law (Nairobi: UNEP, 2009) at 11; ICRC: Jakob KELLENBERGER, Strengthening Legal Protection for Victims of Armed Conflict (Geneva: ICRC, 20113: 1IC/11/5.1.1) at 17. In the scholarship, see for example, BRUCH, Carl E. and AUSTIN, Jay E., The Environmental Consequences of War: Legal Scientific and Economic Perspectives (Cambridge: Cambridge University Press, 2000); RAYFUSE, Rosemay, ed., War and the Environment: New Approaches to Protecting the Environment in Relation to Armed Conflict (Leiden: Brill Nijhoff, 2014); FREELAND, Steven, Addressing the Intentional Destruction of the Environment during Warfare under the Rome Statute of the International Criminal Court (Cambridge: Intersentia, 2015).

6. See in general, Michael BOTHE, Carl BRUCH, Jordan DIAMOND, and David JENSEN, “International Law Protecting the Environment during Armed Conflict: Gaps and Opportunities” (2010) 92 International Review of the Red Cross 569.

7. Liesbeth LIJNZAAD and Gerard J. TANJA, “Protection of the Environment in Times of Armed Conflict: The Iraq-Kuwait War” (1993) 40 Netherlands International Law Review 169 at 181.

8. Whilst acknowledging their different origins, for the purpose of this paper the terms “international humanitarian law”, “laws of war”, “laws of armed conflict”, and “jus in bello” are used interchangeably, as indicating the international legal framework governing the rights and duties of belligerents in armed conflict.

9. See e.g. SCHMITT, Michael N., “Humanitarian Law and the Environment” (2000) 28 Denver Journal of International Law and Policy 265 at 296–7.

10. ROBERTS, Adam, “The Law of War and Environmental Damage” in Jay E. AUSTIN and Carl E. BRUCH, eds., The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives (Cambridge: Cambridge University Press, 2000), 47 at 57.

11. Falk, supra note 5 at 79.

12. E.g. the ICRC pointed to the “lack of mechanisms for addressing the immediate and long term consequences of environmental damage” and suggested giving “extensive thought” to the possible creation of a mechanism or process for assessing the extent of environmental damage, investigating violations of the relevant rules, and deciding on the most appropriate forms of reparation. See ICRC, supra note 5 at 18. See also BRUCH, Carl E., “Existing and Emerging Wartime Standards: Introduction” in Jay E. AUSTIN and Carl E. BRUCH, eds., The Environmental Consequences of War: Legal, Economic and Scientific Perspectives (Cambridge: Cambridge University Press, 2000), 39 at 42. This paper does not consider the international criminal responsibility of individuals for environmental damage as a possible way of enforcing the obligation to protect the environment in wartime.

13. The purpose of UNSC Resolution 687/91 was broader, and included resolving the Iraq-Kuwait boundary dispute, establishing a weapons inspection regime, deploying UN observer forces, returning Kuwaiti property, and compensating for damage and loss caused by the illegal invasion. This paper does not address the question of whether the UNSC had the powers under the UN Charter to create a body with quasi-judicial functions—the UNCC. For a discussion on this point, see LOW, Luan and HODGKINSON, David, “Compensation for Wartime Environmental Damage: Challenges to International Law after the Gulf War” (1995) 35 Virginia Journal of International Law 405 at 468–77.

14. E.g. according to UNEP, “[e]ven though the UN Compensation Commission (UNCC) was established by the Security Council to process compensation claims relating to the 1990–1991 Gulf War, Member States of the United Nations may want to consider how a similar structure could be established as a permanent body, either under the General Assembly or under the Security Council. Such a body could investigate and decide on alleged violations of international law during international and non-international armed conflicts, as well as handle and process compensation claims related to environmental damage and loss of economic opportunities.” See UNEP, supra note 5 at 6. Similar proposals are made in the scholarship. See e.g. JUNI, Robin L., “The United Nations Compensation Commission as a Model for an International Environmental Court” (2000) 7 Environmental Lawyer 53 ; BRUCH, Carl E., “Institutionalizing Peacebuilding: The UNCC, Conflict Resources, and the Future of Natural Resources in Transitional Justice” in Cymie R. PAYNE and Peter H. SAND, eds., Gulf War Reparations and the UN Compensation Commission: Environmental Liability (Oxford: Oxford University Press, 2011), 221 at 239; PAYNE, Cymie R., “Developments in the Law of Environmental Reparations: A Case Study of the UN Compensation Commission” in Carsten STAHN, Jens IVERSON, and Jennifer S. EASTERDAY, eds., Environmental Protection and Transitions from Conflict to Peace (Oxford: Oxford University Press, 2017), 329 .

15. Another noteworthy exception is the International Courts of Justice’s judgment in the Armed Activities case, where the Court found Uganda responsible for the pillaging of natural resources in the Democratic Republic of Congo and ordered reparations. See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, 168, 19 December 2005. Interestingly, in the absence of an agreement after more than ten years since the judgment was rendered, in 2015 the ICJ resumed the proceedings on reparation and became directly involved with the issue of reparation. The approach that would be taken by the ICJ deserves to be monitored closely.

16. GREENWOOD, Christopher, “New World Order or Old? The Invasion of Kuwait and the Rule of Law” (1992) 55 Modern Law Review 153 at 153.

17. SC Res. 660, 2 August 1990.

18. SC Res. 661, 6 August 1990.

19. SC Res. 678, 29 November 1990. See generally Greenwood, supra note 16 at 158–71.

20. Low and Hodgkinson, supra note 13 at 408.

21. Iraqi oil installations and nuclear facilities were also attacked by the Coalition during the war, with the consequent release of contaminants in the surrounding area. See ROBERTS, Adam, “Environmental Issues in International Armed Conflict: The Experience of the 1991 Gulf War” (1996) 69 International Law Studies 222 at 251–3.

22. Ibid., at 248. The intention to destroy Kuwait’s oilfields was disclosed by Saddam Hussein at the very beginning of the invasion; see Low and Hodgkinson, supra note 13 at 410.

23. Greenpeace, The Environmental Legacy of the Gulf War (Amsterdam: Greenpeace International, 1992) at 22.

24. AL-DAMKHI, Ali Mohamed, “Kuwait’s Oil Well Fires, 1991: Environmental Crime and War” (2007) 64 International Journal of Environmental Studies 31 at 33.

25. For a more detailed account of the environmental effects of the Gulf War, see UNEP Rapid Assessment Reports: Surveys on the Impact of the Conflict on Iraq, Kuwait and Saudi Arabia (1991); see also UNEP Updated Scientific Report on the Environmental Effects of the Conflict between Iraq and Kuwait (1993).

26. Low and Hodgkinson, supra note 13 at 410.

27. Greenpeace, supra note 23 at 33; Al-Damkhi, supra note 24 at 35; HULME, Karen, War Torn Environment: Interpreting the Legal Threshold (Leiden: Brill Nijhoff, 2004) at 165–6.

28. Greenpeace, supra note 23 at 17–22.

29. HASSAN, E.A., “State Responsibility for Environmental Air Pollution and the Environmental Impact of the Gulf War” (1995) 1 Eco-notes 22 at 26.

30. Hulme, supra note 27 at 165; Al-Damkhi supra note 24 at 34; Hassan, supra note 29 at 26.

31. Hulme, supra note 27 at 165; Al-Damkhi supra note 24 at 36; Greenpeace, supra note 23 at 22, according to which the land may remain contaminated for generations.

32. SC Res. 687, 3 April 1991.

33. Ibid., para. 16 (emphasis added). Erik Koppe notes that the Resolution employs the term “liability” and not “responsibility” and argues that the UNSC Resolution gives rise to a form of strict liability, meaning a liability without fault: Iraq is made liable for environmental damage resulting also from conducts not prohibited under the laws of war and for damage caused by the Coalition Force. See KOPPE, Erik, The Use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict (Oxford: Hart Publishing, 2008) at 311. This argument is, however, not convincing: the UNSC Resolution clearly qualifies as “unlawful” the initial conduct of Iraq (the aggressor), which entails Iraq’s liability for all consequential loss and injury resulting from the original breach of international law. Similarly, see GOWLLAND-DEBBAS, Vera, “Security Council Enforcement Action and Issues of State Responsibility” (1994) 43 International and Comparative Law Quarterly 55 at 65, using the term “original sin” to indicate the grounding of Iraq liability into its unlawful invasion and occupation of Kuwait.

34. SC Res. 687, supra note 32 at para. 18.

35. SC Res. 692, 20 May 1991, para. 6.

36. Notably, the Vietnam War, where US forces used chemical herbicides (e.g. Agent Orange) to defoliate forests and techniques to modify the weather; the Iran-Iraq War (1980–88), where oilfields and infrastructures were constantly targeted.

37. E.g. during the 1999 Kosovo campaign, NATO attacked oil industries and chemical factories, with the consequent release of pollutants in the air, water, and soil. The 2006 Israel-Lebanon war is another armed conflict where severe environmental damage caused by the targeting of oil tanks was reported.

38. The unprecedented reaction of the UNSC has been explained by pointing at a number of factors: the gravity of the environmental damage caused by Iraqi forces; the broad condemnation of Saddam Hussein’s reckless conduct of warfare; and the post-Cold War political scenario. This was a time when a broad consensus emerged within the international community that enforcement of international law would be possible. Interestingly, the intention to hold Iraq accountable for any violation of international law emerges from a letter from US President Bush to Saddam Hussein dated 9 January 1991, before the Coalition’s intervention: “The United States will not tolerate the use of chemical or biological weapons, support of any kind for terrorist actions, or the destruction of Kuwait’s oil fields and installations … You and your country will pay a terrible price if you order unconscionable acts of this sort.” See Roberts, supra note 10 at 244.

39. ROMANO, Cesare P.R., “A Taxonomy of International Rule of Law Institutions” (2011) 2 Journal of International Dispute Settlement 241 at 264.

40. BEDERMAN, David J., “The United Nations Compensation Commission and the Tradition of International Claim Settlement” (1994) 27 New York University Journal of International Law and Politics 1 at 2, ftn 2.

41. Ibid.

42. Report of the Secretary General to the Security Council pursuant to paragraph 19 of Security Council Resolution 687 (1991), UN Doc. S/2259, 2 May 1991, para. 4.

43. Ibid., at para. 10.

44. Ibid., at para. 26.

45. Ibid., at para. 5.

46. Ibid., at para. 26. See also PAYNE, Cymie R., “Legal Liability for Environmental Damage: The United Nations Compensation Commission and the 1990–1991 Gulf War” in Carl BRUCH, Carroll MUFFETT, and Sandra S. NICHOLS, eds., Governance, Natural Resources and Post-Conflict Peacebuilding (Abingdon: Routledge, 2016), 719 .

47. While acknowledging that the terms “liability” and “responsibility” may have different meanings, especially in international environmental law, in this paper I will use the term “liability”, as this is the term employed by the UNSC.

48. See e.g. Low and Hodgkinson, supra note 13 at 412; GREENWOOD, Christopher, “State Responsibility and Civil Liability for Environmental Damage Caused by Military Operations” (1996) 69 International Law Studies 397 at 406; FRIGESSI DI RATTALMA, Marco and TREVES, Tullio, The United Nations Compensation Commission: A Handbook (The Hague: Kluwer Law International, 1999) at 1617 .

49. SC Res. 666, 13 September 1990; SC Res. 670, 25 September 1990; SC Res. 674, 29 October 1990.

50. Decision Taken by the Governing Council of the United Nations Compensation Commission, S/AC.26/1991/7/Rev.1, 17 March 1992, para. 34 (emphasis added), according to which “direct loss” is “any loss suffered as a result of a) military operations or threat of military action by either side during the period August 2, 1990–March 2, 1991; b) departure of persons from or their inability to leave Iraq or Kuwait during the same period; c) action by Iraqi government officials or agents connected to the invasion or occupation; d) the breakdown of civil order in Kuwait or Iraq during this period; or e) hostage-taking or other illegal detention” [Decision 7].

51. Ibid. (emphasis added).

52. HEISKANEN, Vejio and LEROUX, Nicolas, “Applicable Law: Jus ad Bellum, Jus in Bello, and the Legacy of the UN Compensation Commission” in Timothy J. FEIGHERY, Christopher S. GIBSON, and Trevor M. RAJAH, eds., War Reparations and the UN Compensation Commission: Designing Compensation after Conflict (Oxford: Oxford University Press, 2015), 51 at 61.

53. Greenwood, supra note 48 at 407.

54. ALLEN, José R., “Points of Law” in Cymie R. PAYNE and Peter H. SAND, eds., Gulf War Reparations and the UN Compensation Commission: Environmental Liability (Oxford: Oxford University Press, 2011), 141 at 143. See also Heiskanen and Leroux, supra note 52 at 74.

55. See e.g. HUSTON, Meredith DuBarry, “Wartime Environmental Damage: Financing the Cleanup” (2002) 23 University of Pennsylvania Journal of International Economic Law 899 at 912–13.

56. The number of environmental claims reviewed (168) and for which compensation was awarded (109) represents a small fraction of the total number of claims reviewed (2,685,963) and for which compensation was awarded (1,543,510). See Payne, supra note 46 at 729, Table I.

57. See Decision 7, supra note 50 at para. 35.

58. Peter H. SAND, “Compensation for Environmental Damage from the 1991 Gulf War” (2005) 35 Environmental Policy and Law 244 at 246. See also Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of “F4” Claims, S/AC.26/2001/16, 22 June 2001.

59. Sand, ibid., at 246.

60. Report and Recommendations Made by the Panel of Commissioners Concerning the Fifth Instalment of “F4” Claims, S/AC.26/2005/10, 30 June 2005, at paras. 44–58.

61. Ibid., at paras. 45–51.

62. Ibid., at para. 52.

63. Ibid., at para. 55.

64. Ibid., at para. 58.

65. Payne, supra note 46 at 738.

66. PAYNE, Cymie R., “Environmental Claims in Context: Overview of the Institution” in Cymie R. PAYNE and Peter H. SAND, eds., Gulf War Reparations and the UN Compensation Commission: Environmental Liability (Oxford: Oxford University Press, 2011), 1 at 2.

67. Sand, supra note 58 at 247.

68. The preparatory works of Resolution 687 do not help to clarify the legal basis and scope of Iraq’s liability for environmental damage and depletion of natural resources. The draft proposal and the verbatim record of the UNSC session on 3 April 1991 do not provide any indication on the justification and interpretation of Iraq’s liability for environmental damage. See Koppe, supra note 33 at 312.

69. E.g. Decision 7, supra note 50.

70. Report of the Secretary-General Pursuant to Paragraph 19 of SC Res. 687 (1991), UN Doc. S/22559, 2 May 1991, para. 20.

71. Decision Taken by the Governing Council of the United Nations Compensation Commission, S/AC. 26/1992/10, 26 June 1992, art. 31 [Decision 10].

72. Report and Recommendation made by the Panel of Commissioners Concerning the Third Instalment of “F4” Claims, S/AC.26/2003/31, 18 December 2003, para. 34.

73. Indeed, some commentators have claimed that “the prohibition against the use of force in Article 2(4) is capable of protecting any object, including the environment, which might be affected by the unlawful use of force”. Low and Hodgkinson, supra note 13 at 459.

74. Greenwood, supra note 48 at 407. See also Low and Hodgkinson, supra note 13 at 427.

75. Hulme, supra note 27 at 171–5; Low and Hodgkinson, supra note 13 at 427–30; Roberts, supra note 10 at 250–1; DINSTEIN, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004) at 194. Contra, see Lijnzaad and Tanja, supra note 7 at 195–6, arguing that the damage caused by Iraq could fall within the scope of Additional Protocol I and the ENMOD Convention.

76. Roberts, supra note 10 at 248–9, noting that the reasons behind oil fires and spill seem more “punitive” than “tactical”. See also Dinstein, supra note 75 at 192.

77. Low and Hodgkinson, supra note 13 at 441, although the authors acknowledge that military necessity should be evaluated based on the information available at the time the choice is made, not in a retrospective way. See also Hulme, supra note 27 at 175–85; Lijnzaad and Tanja, supra note 7 at 196.

78. Hulme, supra note 27 at 179.

79. See e.g. STONE, Christopher D., “The Environment in Wartime: An Overview” in Jay E. AUSTIN and Carl E. BRUCH, eds., The Environmental Consequence of War: Legal, Economic and Scientific Perspectives (Cambridge: Cambridge University Press, 2000), 16 at 28–9. See also Greenwood, supra note 48 at 407, arguing that it is “far from clear that all those acts of destruction lacked a justification in military necessity”; Schmitt, supra note 9 at 297. For an account of the potential military and strategic considerations behind the oil spill and oil fires, see Al-Damkhi supra note 24 at 39.

80. The scholarship on the relations between the jus ad bellum and the jus in bello is vast and cannot be fully addressed in a footnote. Traditionally the concepts of the jus ad bellum and the jus in bello have been developed to distinguish between two different stages of a conflict and the relative regulatory frameworks: the first includes the rules legitimizing the use of force against another state; the second embraces the norms governing the conduct of hostilities. The distinction has a long history, but it was at the beginning of the twentieth century, with the prohibition of wars of aggression in the Covenant of the League of Nations, the Kellogg-Briand Pact, and the UN Charter, that a legal foundation of the two concepts was established. Common art. 1 to the 1949 Geneva Conventions and the Preamble of Additional Protocol I reaffirm the principle of equal application of the jus in bello to all belligerents, without distinctions based on the origins or nature of the conflict. The traditional distinction is facing many challenges in contemporary armed conflict: the cases of humanitarian intervention and the war on terror raise a number of questions on the relationship between the two areas of law. See e.g. Carsten STAHN, “‘Jus ad bellum’, ‘jus in bello’ … ‘jus post bellum’?—Rethinking the Conception of the Law of Armed Force” (2006) 17 European Journal of International Law 921.

81. See e.g. OKOWA, Phoebe, “Environmental Justice in Situations of Armed Conflict” in Jonas EBBESSON and Phoebe OKOWA, eds., Environmental Law and Justice in Context (Cambridge: Cambridge University Press, 2009), 231 at 243. See also Stahn, supra note 80 at 29.

82. Eritrea-Ethiopia Claims Commission, Final Award Ethiopia’s Damages Claims between the Federal Democratic Republic of Ethiopia and the State of Eritrea, 17 August 2009, para. 282.

83. Ibid., at para. 289.

84. Ibid., at para. 316.

85. WEERAMANTRY, J. Romesh, “Eritrea’s Damages Claims (Eritrea v. Ethiopia), Ethiopia’s Damages Claims (Ethiopia v. Eritrea)” (2010) 104 American Journal of International Law 480 at 487.

86. Eritrea-Ethiopia Claims Commission, supra note 82 at para. 316.

87. Heiskanen and Leroux, supra note 52 at 77.

88. LAUTERPACHT, Hersch, “The Limits of the Operation of the Laws of War” (1953) 30 British Yearbook of International Law 206 at 212.

89. CROOK, John R., “The United Nations Compensation Commission—A New Structure to Enforce State Responsibility” (1993) 87 American Journal of International Law 144 at 157. A similar argument is made, in more general terms, by PROULX, Vincent-Joël, Institutionalizing State Responsibility: Global Security and UN Organs (Oxford: Oxford University Press, 2016). See also Payne, supra note 14 at 332.

90. Articles on Responsibility of States for International Wrongful Acts [ARSIWA], Report of the International Law Commission on the Work of its 53rd Session, 23 April–1 June and 2 July–10 August 2001, A/56/10, 2001, art. 1.

91. Ibid., art. 2.

92. Ibid., art. 31. As affirmed by the Permanent Court of International Justice in the Factory at Chorzów: “[i]t is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.” Judgment (Jurisdiction), Case Concerning the Factory at Chorzow (Germany v. Poland), PCIJ, 26 July 1927. Pursuant to art. 34 of ARSIWA, reparations take the form of restitution, compensation, and satisfaction.

93. See CRAWFORD, James, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002) at 204–5. Different standards for the causal inquiry have been elaborated in the literature. Ian Browlie, for instance, contends that compensation should cover the losses, which are “proximate” to the acts or omissions. See generally, BROWNLIE, Ian, System of the Law of Nations: State Responsibility (Part I) (Oxford: Oxford University Press, 1983) at 225–7. Another criterion is “foreseeability”, applied for instance in the Portuguese Colonies case (Portugal v. Germany), 1928, UNRIAA, vol. II (Sales No. 1949.V.1), at 1031.

94. In its first decision on compensation for environmental damage, the ICJ recognized that “[i]n cases of alleged environmental damage, particular issues may arise with respect to the existence of damage and causation. The damage may be due to several concurrent causes, or the state of science regarding the causal link between the wrongful act and the damage may be uncertain. These are difficulties that must be addressed as and when they arise in light of the facts of the case at hand and the evidence presented to the Court. Ultimately, it is for the Court to decide whether there is a sufficient causal nexus between the wrongful act and the injury suffered.” See Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Order, 2 February 2018, para. 34 [Certain Activities Case]. The Court, in other words, did not elaborate general criteria to establish the existence of causation in cases of environmental damage. This statement potentially opens the door to diverse approaches by different dispute-resolution bodies ruling on environmental matters.

95. KISS, Alexandre, “Present Limits to the Enforcement of State Responsibility for Environmental Damage” in Francesco FRANCIONI and Tullio SCOVAZZI, eds., International Responsibility for Environmental Harm (London: Graham & Trotman, 1991), 3 at 5.

96. The Final Award of the Eritrea-Ethiopia Claims Commission briefly dealt with the impact of that conflict on the environment and natural resources. Ethiopia claimed more than US$1 billion for environmental damages in Tigray, mostly related to the loss of gum Arabic and resin plants. See Eritrea-Ethiopia Claims Commission, supra note 82 at para. 421.

97. Ibid., at para. 423.

98. PLAKOKEFALOS, Illias, “Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity” (2015) 26 European Journal of International Law 471 at 489. Also, in general, PLAKOKEFALOS, Illias, “Reparation for Environmental Damage in Jus Post Bellum: The Problem of Shared Responsibility” in Carsten STAHN, Jens IVERSON, and Jennifer S. EASTERDAY, eds., Environmental Protection and Transitions from Conflict to Peace (Oxford: Oxford University Press, 2017), 257 .

99. Eritrea-Ethiopia Claims Commission, supra note 82 at paras. 423, 425.

100. Decision 7, supra note 50 at para. 37 (emphasis added).

101. Decision 10, supra note 71.

102. Reports and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of “F4” Claims, supra note 58 at para. 30.

103. Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Fourth Instalment of “F4” Claims, S/AC.26/2004/16, 9 December 2004.

104. ARSIWA, supra note 90, art. 36.

105. Report and Recommendations Made by the Panel of Commissioners Concerning the Fifth Instalment of “F4” Claims, S/AC.26/2005/10, supra note 60 at para. 46.

106. Ibid., at para. 58. This position is in line with the Commentaries to ARSIWA; see Crawford, supra note 93 at 223, stating that “environmental damage will often extend beyond that which can be readily quantified in terms of clean-up costs or property devaluation. Damage to such environmental values (biodiversity, amenity, etc.—sometimes referred to as ‘non use values’) is, as a matter of principle, no less real and compensable than damage to property, though it may be difficult to quantify.” Recently, the ICJ held that “it is consistent with the principles of international law governing the consequences of internationally wrongful acts, including the principle of full reparation, to hold that compensation is due for damage caused to the environment, in and of itself, in addition to expenses incurred by an injured State as a consequence of such damage”. See Certain Activities Case, supra note 95 para. 41 (emphasis added).

107. Payne, supra note 46 at 737.

108. Report and Recommendations Made by the Panel of Commissioners Concerning the Fifth Instalment of “F4” Claims, supra note 60 at para. 81. It is equally true, however, that domestic courts have been asked to attribute an economic value to the loss of environmental resources and to do so they have relied on the work done by environmental economists to put a price on ecosystem services.

109. Certain Activities Case, supra note 94 para. 86.

110. Ibid., para. 78. It is noteworthy that the parties had different views on the UNCC’s valuation practice, with Nicaragua arguing that the ICJ should follow the “ecosystem service replacement costs” adopted by the UNCC, whereas Costa Rica contended that that methodology was outdated and that the “ecosystem services approach” should be preferred: ibid. paras. 48–51. Ultimately, the Court decided not to follow the criteria proposed by the parties and adopted its own approach.

111. CONFORTI, Benedetto, “Do States Really Accept Responsibility for Environmental Damage”, in Francesco FRANCIONI and Tullio SCOVAZZI, eds., International Responsibility for Environmental Harm (London: Graham & Trotman, 1991), 179 at 179.

112. LIBERA, Rosemary E., “Divide, Conquer, and Pay: Civil Compensation for Wartime Damage” (2001) 24 Boston College International and Comparative Law Review 291 at 301.

113. The UNCC Fund was financed by thirty percent of Iraqi oil export revenues, later reduced to twenty-five percent in 2000 and to five percent in 2003. See Sand, supra note 58 at 245.

114. SC Res. 687, supra note 32 at para. 33.

115. See in general, Bederman, supra note 40.

116. See Report of the United Nations Secretary General to the President of the Security Council, UN Doc. S/22366, 20 March 1991.

117. FALK, Richard, “The Inadequacy of the Existing Legal Approach to Environmental Protection in Wartime” in Jay E. AUSTIN and Carl E. BRUCH, eds., The Environmental Consequences of War: Legal, Economic and Scientific Perspectives (Cambridge: Cambridge University Press, 2000), 137 at 147. See also Low and Hodgkinson, supra note 13 at 475, observing that para. 16 of SC Res. 687 evokes art. 231 of the Treaty of Versailles, which affirmed the “responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequences of the war imposed upon them by the aggression of Germany and her allies” (emphasis added).

118. Falk, supra note 5 at 80. See also THOMAS, Carson, “Advancing the Legal Protection of the Environment in Relation to Armed Conflict: Protocol I’s Threshold of Impermissible Environmental Damage and Alternatives”, in Rosemary RAYFUSE, ed., War and the Environment: New Approaches to Protecting the Environment in Relation to Armed Conflict (Leiden: Brill Nijhoff, 2014), 109 at 126; Okowa, supra note 81 at 243.

119. Falk, supra note 117 at 138.

120. Ibid., at 141.

121. SCHMITT, Michael, “Green War: An Assessment of the Environmental Law of International Armed Conflict” (1997) 22 Yale Journal of International Law 1 at 91.

122. Some scholars claim that the UNCC should not be seen as a form of punitive or retributive justice, but as a form of “practical justice”, an institution that delivered justice to millions of people who suffered damage as a result of Iraq’s invasion of Kuwait. See in particular, CARON, David D. and MORRIS, Brian, “The UN Compensation Commission: Practical Justice, not Retribution”, (2002) 13 European Journal of International Law 183 at 183–99.

123. See e.g. the Sustainable Development Goals, in particular Goals 13 (climate action), 14 (life below water), and 15 (life on land), but also Goals 3 (good health and wellbeing) and 6 (clean water and sanitation), endorsed by the UN General Assembly, Transforming our World: the 2030 Agenda for Sustainable Development, GA Res. A/RES/70/1, 21 October 2015. Further, several IEL principles (e.g. precaution, intra- and inter-generational equity) and treaties require the protection of environmental resources situated within the territory of a state because of their value for the entire community of states (e.g. the UNESCO World Heritage Convention), or because their preservation is qualified as a “common concern of humankind” (e.g. the Convention on Biodiversity). What characterizes those treaties is the assertion that some environmental problems may affect the interests of the international community as a whole. The vision of the environment that underpins IEL is in sharp contrast with the victor-defeated dichotomy that characterized the UNCC’s work.

124. The pivotal work in the field of environmental security is that of HOMER-DIXON, Thomas F., “Environmental Scarcities and Violent Conflict: Evidence from Cases” (1994) 19 International Security 5 . More recently, see HULME, Karen, “Environmental Security: Implications for International Law” (2008) 19 Yearbook of International Environmental Law 3 ; DAS, Onita, Environmental Protection, Security and Armed Conflict: A Sustainable Development Perspective (Cheltenham: Edward Elgar Publishing, 2013) at 68–77; FLOYD, R. and MATTHEW, R., eds., Environmental Security: Approaches and Issues (Abingdon: Routledge, 2013). For the other side of the coin, i.e. the contribution of the environment to re-establish peace, see e.g. BRUCH, Carl, MUFFETT, Carroll, and NICHOLS, Sandra S., Governance, Natural Resources, and Post-Conflict Peacebuilding (Abingdon: Routledge, 2016).

125. CHINKIN, Christine and KALDOR, Mary, International Law and New Wars (Cambridge: Cambridge University Press, 2017) at 11.

126. For the concept of “slow violence” in the context of the environmental impact of warfare, see NIXON, Rob, Slow Violence and the Environmentalism of the Poor (Cambridge: Harvard University Press, 2011) at 225.

* PhD Candidate, Faculty of Law, National University of Singapore. An earlier version of this paper was presented in November 2015 at the Biennial Conference of the Asian Society of International Law. I wish to thank my supervisors, Assistant Professor Cheah Wui Ling and Assistant Professor Vincent-Joël Proulx, and the participants to the NUS Faculty of Law Doctoral Reading Group for their feedback on an early draft of this paper. I am also truly grateful to the anonymous reviewers for their thoughtful and generous comments. Errors and omissions remain my own.

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Asian Journal of International Law
  • ISSN: 2044-2513
  • EISSN: 2044-2521
  • URL: /core/journals/asian-journal-of-international-law
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