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Protection of the natural environment in time of armed conflict

Published online by Cambridge University Press:  13 January 2010

Antoine Bouvier
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Extract

Since the early 1970s, the steady deterioration of the natural environment has given rise to widespread awareness of man's destructive impact on nature.

This awareness of the vital importance for humanity of a healthy environment and the determined efforts of numerous environmental protection agencies have led over the years to the adoption of a large body of laws for the protection and preservation of the natural environment.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 31 , Issue 285 , December 1991 , pp. 567 - 578
Copyright
Copyright © International Committee of the Red Cross 1991

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Footnotes

1

The views expressed here are those of the author alone and do not necessarily reflect those of the ICRC.

References

2 “Conduct of the Persian Gulf conflict, an interim report to Congress”, Department of Defense, Washington, 07 1991, p. 11.Google Scholar

3 A list of the States that have introduced such rules into their constitutions can be found in Michelle, Schwartz, “Preliminary Report on Legal and Institutional Aspects of the Relationship between Human Rights and the Environment”, Geneva, 08 1991, p. 11.Google Scholar

4 See “La protection de l'environnement en temps de conflit arnié”. European Communities, Brochure 54 110/85 slnd, pp. 17–18.Google Scholar

5 See, for example, the Convention on the Law of the Sea of 10 December 1982. Art. 194, para. 2.

6 See, for example, Principle No. 21 of the Declaration of Stockholm adopted on 16 June 1972 by the United Nations Conference on the Human Environment. For a summary of the proceedings of the Conference, see IRRC, No. 141, 12 1972. pp. 683 CrossRefGoogle Scholar and following, and IRRC, No. 137, 08 1972, pp. 468 and following.Google Scholar

7 For a list of these texts, see “La protection de renvironnement en temps de conflit armé”, op. cit., pp. 25–30.

8 For a more detailed discussion of this problem, see Schwartz, , op. cit., pp. 4–11.Google Scholar

9 See. for example. Art. 24 of the African Charter on Human and Peoples' Rights signed in Nairobi in June 1981, which states that: “All peoples shall have the right to a general satisfactory environment favourable to their development”.

10 See note 3.

11 Resolution No. XVII, 22nd International Conference, Teheran, 1973; and Resolution No. XXI, 23rd International Conference, Bucarest, 1977.

12 See, for example, Irena, Domanska, “Red Cross and the problems of environment”. IRRC, No. 131, 02 1972, pp. 73–78 CrossRefGoogle Scholar; Jacques, Vigne, “The Red Cross and the human environment”, IRRC, No. 183, 06 1976, pp. 295–300 CrossRefGoogle Scholar; Johan, Schaar, A Shade of Green: Environment Protection as Part of Humanitarian Action, Henry Dunant Institute Working Paper No. 2:90, Geneva, 1990.Google Scholar

13 For more information see Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Eds. Sandoz, Y., Swinarski, C., Zimmermann, B. Eds., ICRC, Martinus Nijhoff Publishers, Geneva, 1987, p. 410, para. 1443 and footnote 84.Google Scholar

14 In particular, a symposium held on 3 June 1991 in London under the auspices of the London School of Economics, the Centre for Defence Studies and Greenpeace International, to assess the need for a fifth Geneva Convention; a meeting of experts convened in Ottawa by the Canadian government on 10–12 July 1991 and the Third Preparatory Committee of the United Nations Conference on Environment and Development (UNCED) held on 12 August – 4 September 1991.

15 Such an assessment is extremely difficult to make since environmental damage can take many forms and some of its effects are not immediately evident. For a partial assessment of the damage caused by the 1990–1991 Gulf war, see “On impact, modern warfare and the environment, a case study of the Gulf war”, Greenpeace International. London, 1991 Google Scholar; “Some lessons to be learned from the environmental consequences of the Arabian Gulf war”, WWF International, 05 1991 Google Scholar (document distributed to the Second UNCED Preparatory Committee); “Environmental assessment of the Gulf crisis”, Doc. A/conf./151/PC/72, a report considered by the Third UNCED Preparatory Committee.

16 See, for example, Protocol I of 1977, Art. 35, para. 2; Art. 51, para. 5(b) and Art. 57, para. 2(a) and (b).

17 On the principle of proportionality in relation to the protection of the environment in time of armed conflict, see Michael, Bothe, “War and environment”, in Encyclopaedia of Public International Law, Instalment 4, p. 291.Google Scholar

18 See “Note on the current law of armed conflict relevant to protection of the environment in conventional conflicts”, p. 1, document prepared in the Office of the Judge Advocate General, Canadian Armed Forces, and distributed to participants at the Ottawa symposium (see note 14).

19 See Art. 22 of the Regulations annexed to the Convention which states that: “The right of belligerents to adopt means of injuring the enemy is not unlimited”.

20 For a discussion of these provisions, see Jozef, Goldblat, “The mitigation of environmental disruption by War: Legal Approaches”, in Westing, A., (ed), Environment hazards of war, Oslo, London, pp. 53–55.Google Scholar

21 For more background information on this treaty and the negotiations leading up to it. see Commentary on the Additional Protocols, op. cit., p. 413, para. 1448; and Geza, Herczegh, “La protection de l'environnement naturel et le droit humanitaire, in Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet, Swinarski, C., ed., ICRC, Martinus Nijhoff Publishers, Geneva, The Hague, 1984, p. 730.Google Scholar

22 Concerning the origin and legislative background of these provisions, see Alexander, Kiss, “Les Protocoles additionnels aux Conventions de Genève de 1977 et la protection des biens de l'environnement”, Etudes et essais sur le droit international humanitaire…, op. cit., p. 182 Google Scholar and following; Herczegh, , p. 726 Google Scholar and following; Goldblat, , op. cit., p. 50 Google Scholar and following; Commentary on the Additional Protocols, op. cit., pp. 411–412 Google Scholar, paras. 1444–1447; and Bothe, /Solf, /Partsch, , New Rules for Victims of Armed Conflicts, Martinus Nijhoff Publishers, The Hague, 1982, p. 344.Google Scholar

23 On the relationship between these two articles and on their role in the Protocol as a whole, see also Herczegh, , op. cit., pp. 729–730 Google Scholar; Kiss, , op. cit., pp. 184–186 Google Scholar; Commentary on the Additional Protocols, op. cit., p. 414 Google Scholar, para. 1449 and p. 663, para. 2133; Bothe, /Solf, /Partsch, , op. cit., pp. 344–345 Google Scholar. Our comments are also based on a report (to be published) presented on 8 June 1991 by Paul Fauteux at a symposium in Paris on the legal aspects of the Gulf crisis. We are grateful to the author for having provided us with a copy of the report.

24 See Bothe, , op. cit., p. 292 Google Scholar; Kiss, , op. cit., p. 186 Google Scholar; Commentary on the Additional Protocols, op. cit., pp. 630–675, paras. 1994–2183.Google Scholar

25 See Commentary on the Additional Protocols, op. cit., pp. 416–417 Google Scholar, para. 1454 and pp. 412–420, paras. 1447–1462; Kiss, , op. cit., p. 187 Google Scholar; and Bothe, , op. cit., pp. 291–292.Google Scholar

26 See Commentary on the Additional Protocols, op. cit., pp. 415–416 Google Scholar. para. 1452. On these differences of terminology, see also Kiss, . op. cit., p. 189.Google Scholar

27 From the purely legal point of view, harmonization should not give rise to any major problems. The terms “long-lasting, widespread and serious” were not defined in the two treaties themselves and only a very approximate indication of their meaning was given in the proceedings of the Diplomatic Conferences that led to their signature. It should therefore be possible, as concluded by the experts in Ottawa (see note 14). to reach agreement on the meaning of these terms in accordance with the general rules of the law of treaties, in particular Arts. 31 and 32 of the 1969 Vienna Convention.

28 See Kiss, , op. cit., p. 184 Google Scholar and Goldblat, , op. cit., p. 52.Google Scholar

29 In particular, the promoters of the London symposium on a fifth Geneva Convention (see note 14).

30 See note 14.

31 This suggestion was made at the CDDH, but was not adopted (see Kiss, , op. cit., p. 191 Google Scholar and Commentary on the Additional Protocols, op. cit., p. 664 Google Scholar, paras. 2138–2139).

32 Two implementation mechanisms of IHL could prove especially useful: (a) the obligation to “respect and ensure respect for” the provisions of IHL, set forth in Art. 1 common to the four Geneva Conventions of 1949 and Protocol I of 1977; and (b) the International Fact-Finding Commission provided for in Art. 90 of Protocol 1 and set up on 25 June 1991 (on the Commission's role see Françoise, Krill, “The International Fact-Finding Commission”, IRRC, No. 281, 03–04 1991, pp. 190–207).CrossRefGoogle Scholar