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International law protecting the environment during armed conflict: gaps and opportunities

Abstract
Abstract

There are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

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1 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, Arts. 35(3) and 55(1).

2 Convention for the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151.

3 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245.

4 For a review of IHL governing the environment during armed conflict, see United Nations Environment Programme (UNEP), Protecting the Environment During Armed Conflict: An Inventory and Analysis, Nairobi, 2009; see also Daniel Bodansky, Legal Regulation of the Effects of Military Activity on the Environment, Berichte des Umweltbundesamts/Reports of the German Federal Environment Agency, Nr. 5/2003, Erich Schmidt Verlag, Berlin, 2003; Bothe Michael, ‘The protection of the environment in times of armed conflict’, in German Yearbook of International Law, Vol. 34, 1991, pp. 5462; Jay E. Austin and Carl E. Bruch (eds), The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives, Cambridge University Press, Cambridge, 2000.

5 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), 10 December 1976, 1108 UNTS 151, Art. 1.

6 Understanding annexed to the text of ENMOD, contained in the report of the UN Committee of the Conference on Disarmament to the General Assembly, Official Records of the General Assembly, 31st Session, Supplement No. 27 (A/31/27).

7 See Waldemar A. Solf, ‘Article 55: protection of the natural environment’, in Michael Bothe, Karl Josef Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflict: Commentaries on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Nijhoff, The Hague, 1982, p. 347.

8 Conference document CDDH/215/Rev. 1, para. 27.

9 W. A. Solf, above note 7, p. 348.

10 United States, declaration made on signature: ‘It is the understanding of the United States of America that the rules established by this protocol were not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons’. United Kingdom, declaration made on ratification: ‘It continues to be the understanding of the United Kingdom that the rules introduced by the Protocol apply exclusively to conventional weapons without prejudice to any other rules of international law applicable to other types of weapons. In particular, the rules so introduced do not have any effect on and do not regulate or prohibit the use of nuclear weapons’.

11 For references, see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, International Committee of the Red Cross and Cambridge University Press, Cambridge, 2005, Vol. I, pp. 153ff.

12 International Committee of the Red Cross (ICRC), Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, Geneva, 1994.

13 General Assembly resolution 49/50 of 9 December 1994; for a comment, see Bothe Michael, ‘Military activities and the protection of the environment’, in Environmental Policy and Law, Vol. 37, No. 2–3, 2007, p. 234.

14 Rome Statute of the International Criminal Court (ICC) of 17 July 1998, A/CONF.138/9.

15 Ibid., Art. 8(2)(b)(iv).

16 J.-M. Henckaerts and L. Doswald-Beck, above note 11.

17 Ibid., Rule 45.

18 Ibid., Rule 44.

19 Ibid.

20 Additional Protocol I, Art. 57.

21 ICJ, Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, ICJ Reports, 1995; ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports, 1996.

22 San Remo Manual on International Law Applicable to Armed Conflict at Sea, reproduced in Dietrich Schindler and Jiinline-graphici Toman (eds), The Laws of Armed Conflict, 4th edition, Leiden and Boston, 2004, p. 1153, Rule 44.

23 Harvard University, Program on Humanitarian Policy and Conflict Research (HPCR), Manual on International Law Applicable to Air and Missile Warfare, Bern, 2009, Rule 88.

24 Ibid., Rule 89.

25 Additional Protocol I, Arts. 35(3) and 55(1).

26 See W. A. Solf, above note 7, p. 348; Conference document CDDH/215/Rev. 1, para. 27.

27 Carl E. Bruch et al., ‘Post-conflict peace building and natural resources’, in Ole Kristian Fauchald, David Hunter, and Wang Xi (eds), Yearbook of International Environmental Law, Vol. 19, 2008, Oxford University Press, Oxford, 2009.

28 Desuetude is the legal rule that provides that a legal provision loses its binding force as the result of non-use for a sufficiently long time.

29 Informal working groups of the International Union for Conservation of Nature (IUCN) have advanced this solution for a number of years. It is now contained in an official statement of the ICRC, Strengthening Legal Protection for Victims of Armed Conflicts: The ICRC Study on the Current State of International Humanitarian Law, Address by Dr Jakob Kellenberger, President of the ICRC, 21 September 2010, in this issue, also available at: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/ihl-development-statement-210910 (last visited 18 October 2010).

30 See, e.g., Asit Biswas, ‘Scientific assessment of the long-term environmental consequences of war’, in J. E. Austin and C. E. Bruch, above note 4.

31 See generally UNEP, above note 4.

32 A differentiated answer is given by J.-M. Henckaerts and L. Doswald-Beck, above note 11, Vol. I, pp. 148ff. and 156ff.

33 The following section draws from the authors' analyses in UNEP, above note 4.

34 The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 18 December 1971, 1110 UNTS 57, and the International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, 973 UNTS 3, only apply to oil pollution from ships. In Jiyeh, on-the-ground assistance was provided pursuant to the Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency (Emergency Protocol), Barcelona, 16 February 1976.

35 A question that also deserves attention in this context is whether the Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 215, provides a more appropriate protection in cases where heritage sites are at the same time cultural property.

36 International Law Commission (ILC), Report of the International Law Commission, 59th Session, 7 May–5 June and 9 July–10 August 2007, paras. 266–324, UNGA Supp. A/62/10; ILC, Effects of Armed Conflicts on Treaties, UN Doc. A/CN.4/L.727/Rev.1, 6 June 2008; ILC, Effects of Armed Conflicts on Treaties, Addendum, UN Doc. A/CN.4/L.727/Rev.1/Add.1, 11 July 2008. The draft articles were provisionally adopted and circulated to states for comment and observation, to be submitted by January 2010: ILC, Report of the International Law Commission, 60th Session, 5 May–6 June and 7 July–8 August 2008, para. 14, UNGA Supp. A/63/10.

37 ILC, Effects of Armed Conflicts on Treaties, 6 June 2008, above note 36, Art. 3.

38 Ibid., Art. 4.

39 VCLT, Art. 62.

40 ILC, Responsibility of states for internationally wrongful acts’, in Yearbook of the International Law Commission, Vol. II, Part Two, 2001, pp. 32ff., Art. 25.

41 Relying on lex specialis is not helpful. On the one hand, it may be argued that IHL is lex specialis as it is developed specifically for the context of armed conflict. On the other hand, it can be argued at least as forcefully that IEL is lex specialis as it has much more developed provisions relating to the environment, while IHL only touches on the issue generally.

42 World Heritage Convention, Art. 11(2).

43 Ibid., Art. 11(4).

44 Ramsar Convention, Art. 2.

45 Ibid., Art. 3. Article 4 of the Ramsar Convention then requires that, when urgent national interests cause a party to make such a deletion or restriction, they should attempt to compensate for that loss of wetlands.

46 See, e.g., Alice Bunker Louise, ‘Protection of the environment during armed conflict: one gulf, two wars’, in Review of European Community & International Environmental Law, Vol. 13, No. 2, 2004, p. 211. We have seen that, although environmental treaties can be applied to situations of armed conflict, their provisions are often too flexible and ambiguous to provide any real guidance to commanders on the battlefield or to be enforced after the event. The only area of environmental law where this is perhaps not true is the protection of areas of special significance such as World Heritage sites or Ramsar wetlands. Here it is clear that a defined area should be avoided and peacetime protections can be more easily linked to wartime activity, as suggested by the IUCN Protected Areas Draft Convention.

47 United Nations Convention on the Law of the Sea (UNCLOS), 10 December 1982, 1833 UNTS 3.

48 Ibid., Arts. 192 and 194; see also Arts. 207–208 and 212.

49 Ibid., Art. 236.

50 See, e.g., Schmitt Michael N., ‘Green war: an assessment of the environmental law of international armed conflict’, in Yale Journal of International Law, Vol. 22, No. 1, 1997 , pp. 4749, discussing the potential protections that UNCLOS may afford during armed conflict. Silja Vöneky, ‘Peacetime environmental law as a basis of state responsibility for environmental damage caused by war’, in J. E. Austin and C. E. Bruch, above note 4, p. 207, argues that, because UNCLOS creates an ‘objective regime’ and intends ‘to serve the interests of the state community as a whole’, it continues to apply during armed conflict.

51 San Remo Manual, above note 22.

52 Ibid., Art. 34. If mines are laid within a neutral state's exclusive economic zone, the belligerent must notify the neutral state and give ‘[d]ue regard … to the protection and preservation of the marine environment’ (ibid., Art. 35).

53 Convention on Third Party Liability in the Field of Nuclear Energy, Art. 9, 29 July 1960, amended 28 January 1964, 956 UNTS 264.

54 Ibid., Annex I, para. 4.

55 Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79; United Nations Convention to Combat Desertification, 17 June 1994, 1954 UNTS 3; Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 UNTS 333.

56 See S. Vöneky, above note 50.

57 See above, ‘Elements of the environment as civilian objects’.

58 A potential complication when analysing what may constitute customary IEL is that there have been few state-by-state assessments to ascertain state practice and opinio juris; most commentaries rely on international declarations and on isolated samples of practice.

59 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 16 June 1972, UN Doc. A/CONF.48/14/Rev. 1 (1973).

60 Ibid., Principle 21. This is the Trail Smelter principle, discussed below.

61 Rio Declaration on Environment and Development, 13 June 1992, UN Doc. A/CONF.151/26, Vol. I, Principle 24.

62 See, e.g., M. N. Schmitt, above note 50, pp. 43–44.

63 Agenda 21: Programme of Action for Sustainable Development, UN GAOR, 46th Session, Agenda Item 21, UN Doc. A/Conf.151/26, 14 June 1992, Art. 39(6).

64 UN General Assembly resolution 37/7, 28 October 1982, World Charter for Nature, UN Doc. A/RES/37/7, Principle 5.

65 UN General Assembly resolution 47/37, 9 February 1993, Protection of the Environment in Times of Armed Conflict, UN Doc. A/RES/47/37.

66 See ICRC, above note 12, and accompanying text. The first military manual specifically instructing environmental protection during hostilities is thought to be the US Department of the Navy's Commander's Handbook on the Law of Naval Operations. See US Navy, US Marine Corps, and US Coast Guard, The Commander's Handbook of the Law of Naval Operations, NWP 1-14M, October 1995; see also Arthur H. Westing, ‘In furtherance of environmental guidelines for armed forces during peace and war’, in J. E. Austin and C. E. Bruch, above note 4, p. 177.

67 Trail Smelter Case (United States v. Canada), 16 April 1938 and 11 March 1941, Reports of International Arbitral Awards (R.I.A.A.), Vol. III, p. 1905.

68 M. N. Schmitt, above note 50, pp. 46–47.

69 Sonja Ann Jozef Boelaert-Suominen, International Environmental Law and Naval War: The Effect of Marine Safety and Pollution Conventions During International Armed Conflict, Newport Paper No. 15, Naval War College, Newport, December 2000; Okorodudu-Fubara Margaret T., ‘Oil in the Persian Gulf War: legal appraisal of an environmental warfare’, in St. Mary's Law Journal, Vol. 23, 1991, pp. 204206.

70 ICJ, Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, p. 4.

71 Ibid., p. 22.

72 ICJ, Legality of the Threat or Use of Nuclear Weapons, above note 21, para. 29.

73 Ibid., para. 30.

74 ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010.

75 Vöneky Silja, ‘A new shield for the environment: peacetime treaties as legal restraints of wartime damage’, in Review of European Community & International Environmental Law, Vol. 9, No. 1, 2000, pp. 2022; S. Vöneky, above note 50.

76 S. A. J. Boelaert-Suominen, above note 69, pp. 124–226.

77 For a discussion of intention theory, see Luan Low and Hodgkinson David, ‘Compensation for wartime environmental damage: challenges to international law after the Gulf War’, in Virginia Journal of International Law, Vol. 35, No. 2, 1995, p. 405. The authors review variations such as analysing the nature of the treaty, the treaty's compatibility with war, or the number of parties to the treaty as different ways to assess intention.

78 S. A. J. Boelaert-Suominen, above note 69, p. 133.

79 M. N. Schmitt, above note 50, pp. 37–38.

80 Sharp Walter G. Sr., ‘The Effective Deterrence of Environmental Damage during Armed Conflict: A Case Analysis of the Persian Gulf War’, in Military Law Review, Vol. 137, Summer 1992, p. 23.

81 Ibid., pp. 23–25.

82 John P. Quinn, Richard T. Evans, and Michael J. Boock, ‘United States Navy development of operational–environmental doctrine’, in J. E. Austin and C. E. Bruch, above note 4, pp. 161–165.

83 See ILC, above note 36.

84 Parsons Rymn James, ‘The fight to save the planet: U.S. armed forces, ‘greenkeeping’, and enforcement of the law pertaining to environmental protection during armed conflict', in Georgetown International Environmental Law Review, Vol. 10, No. 2, 1998, p. 482.

85 Ticehurst Rupert, ‘The Martens Clause and the laws of armed conflict’, in International Review of the Red Cross, No. 317, 1997, p. 125.

86 Additional Protocol I, Art. 1(2); see also the Preambles of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflict (Additional Protocol II), 8 June 1977, and of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, as well as the provisions of the four Geneva Conventions of 12 August 1949 on denunciation, Arts. 64/62/142/158.

87 Ross Marc A., ‘Environmental warfare and the Persian Gulf War: possible remedies to combat intentional destruction of the environment’, in Dickinson Journal of Environmental Law and Policy, Vol. 10, 1992, p. 534.

88 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, para. 188. In this case, the ICJ found that the US had violated international law by supporting guerrillas in a war against the Nicaraguan government and by mining Nicaragua's harbours.

89 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, Annex to General Assembly resolution 2625 (XXV), 24 October 1970.

90 Annex to General Assembly resolution 3314 (XXIX), 14 December 1974.

91 Article 18 Draft articles on the law of transboundary aquifers, ILC, Report of the International Law Commission, 60th session, 5 May–6 June and 7 July–8 August 2008, GOAR A/63/10, Ch. V, p. 19.

92 See ILC, above note 40, Art. 25.

93 Convention on International Trade of Endangered Species of Wild Flora and Fauna, 3 March 1973, 993 UNTS 243.

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