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Taking care to protect the environment against damage: a meaningless obligation?

Published online by Cambridge University Press:  25 November 2010

Karen Hulme
Karen Hulme
Affiliation:
Karen Hulme is a senior lecturer in the Law School at the University of Essex, UK.
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Abstract

Little attention is paid to the obligation of ‘care’ in Article 55(1) of Additional Protocol I. Beyond a general principle of upholding environmental value in times of armed conflict, what is the scope and content of the obligation? If it is worthless, what makes it so? Since the care provision includes the same high threshold of harm found elsewhere in the environmental provisions, has this stumbling block now been removed by state practice? Rule 44 of the Customary Law Study might appear to suggest that this is so, or does it? Ultimately then, is the care obligation worth caring about?

Type
Environment
Information
International Review of the Red Cross , Volume 92 , Issue 879: Environment , September 2010 , pp. 675 - 691
Copyright
Copyright © International Committee of the Red Cross 2010

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References

1 See Intergovernmental Panel on Climate Change, Climate Change 2007: The Physical Science Basis, Cambridge University Press, Cambridge, 2007.

2 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2005 (hereafter Customary Law Study), Commentary and evidence for Rules 43–45.

3 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 (hereafter Protocol I).

4 Yves Sandoz, Christophe Swinarski, and Bruno Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987, paras. 1449–1452.

5 Ibid., para. 2133.

6 Dinstein, Yoram, ‘Protection of the environment in international armed conflict’, in Max Planck Yearbook of United Nations Law, Vol. 5, 2001, p. 531Google Scholar.

7 Cohan, John A., ‘Modes of warfare and evolving standards of environmental protection under the international law of war’, in Florida Journal of International Law, Vol. 15, 2003, p. 504Google Scholar.

8 Much confusion often surrounds the notion of ‘anthropocentrism’; there is a difference, however, between why we choose to protect the environment (which is arguably anthropocentric, as that protection is ultimately based on the benefit of a viable environment to humanity) and what we choose to protect (for example, prohibiting ‘pure’ environmental damage in the sense that no people are harmed).

9 Y. Sandoz et al., above note 4, para. 2133.

10 See Protocol I, Art. 48.

11 See Protocol I, Art. 51(5)(b).

12 See Protocol I, Art. 57.

13 See Protocol I, Art. 58.

14 See, for example, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, Arts. 12 and 15; Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, Art. 30; Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, Arts. 18 and 50.

15 See, for example, Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction of 18 September 1997 (hereafter Anti-Personnel Mines Convention), Art. 6(3) and Protocol on Explosive Remnants of War (Protocol V to the 1980 UN Certain Conventional Weapons Convention) of 28 November 2003, Art. 8(2), both concerned with ‘care and rehabilitation, and social and economic reintegration, of mine victims’; Convention on Cluster Munitions of 30 May 2008, Art. 5(1), concerned with ‘medical care’.

16 See Protocol I, Art. 77(1).

17 See also Anti-Personnel Mines Convention, above note 15, Art. 8(2); and 2008 Convention on Cluster Munitions, Art. 8(2), stating that ‘care being taken to avoid abuse’ of the clarification mechanism.

18 See J. M. Henckaerts and L. Doswald-Beck, above note 2, Vol. II, Part 1, Ch. 14, p. 881, para. 177.

19 Ibid., p. 882, para. 181.

20 See ibid., Vol. I, Rules 42, 81, and 84 on ‘particular care’, and Rule 38 for ‘special care’.

21 The meaning of ‘warfare’ appears to relate to active hostilities, certainly to the use of means and methods of warfare, and, according to the ICRC Commentary, is apparently broader than ‘combat’. See Y. Sandoz et al., above note 4, para. 1401.

22 See Karen Hulme, War Torn Environment: Interpreting the Legal Threshold, Martinus Nijhoff, Leiden, 2004, pp. 80–88; René Lefeber, Transboundary Environmental Interference and the Origin of State Liability, Kluwer Law International, The Hague, 1996, pp. 61ff.

23 R. Lefeber, above note 22.

24 See Protocol I, Art. 60.

25 Y. Sandoz et al., above note 4, paras. 2303 and 2312.

26 Michael Bothe, ‘War and Environment’, in R. Bernhardt (ed), Encyclopedia of Public International Law, Vol. 4, Elsevier, Amsterdam, 2000, p. 1344. Note that draft Article 48 ter, concerned with the protection of ‘nature reserves’, was rejected for inclusion in Protocol I. See Y. Sandoz et al., above note 4, paras. 2138-9 and proposed Amendment CDDH/III/276.

27 For the obligation of states to take the environment into consideration in their weapons assessment, see International Committee of the Red Cross, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977, ICRC, Geneva, 2006, pp. 19–20.

28 This obligation is also recognized in part in Protocol I, Art. 57(3).

29 These obligations can be deduced from both Articles 55 and 58 of Protocol I.

30 Unfortunately, in the example of the Azotara fertilizer plant, the reports suggest that workers dumped 250 tons of liquid ammonia into the Danube, apparently fearing that greater environmental damage would be caused if the plant were bombed and the ammonia set on fire: see United Nations Environment Programme and United Nations Centre for Human Settlements (Habitats), The Kosovo Conflict: Consequences for the Environment and Human Settlements, UNEP and UNCHS, Geneva, 1999, p. 35.

31 See Brian Bill, Marie Anderson, and J. Jeremy Marsh (eds), Operational Law Handbook 2009, International and Operational Law Department, Judge Advocate General's Legal Center and School, Charlottesville, VA, 2009 (hereafter US Operational Law Handbook), p. 351, available at: https://www.jagcnet.army.mil/JAGCNETPortals/Internet/DocLibs/kflddoclib.nsf/f45bab0efc3ec172852574d00068d6a5/23842DE37A0862CF852576E7004B669E/$FILE/2009%20operational-law-handbook.pdf (last visited 20 September 2010). On the definition of ‘severe’, the US Operational Law Handbook refers to ‘any act that prejudices the health or survival of the population’, suggesting ‘roughly the same meaning’ as that used in the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD) of 10 December 1976; namely, ‘severe or significant disruption or harm to human life, natural or economic resources, or other assets’. See Annex to the ENMOD Convention, Understandings regarding the Convention, letter c). See also Fauteux, Paul, ‘The Gulf War, The ENMOD Convention and the Review Conference’, in UN Institute for Disarmament Research Newsletter, Vol. 18, 1992, p. 6Google Scholar.

32 See the statement by the US in Adam Roberts and Richard Guelff, Documents on the Laws of War, Clarendon Press, Oxford, 3rd edition, 2000, p. 512; note the reservation of the UK, for example, available at: http://www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument (last visited 20 September 2010).

33 See Annex to the ENMOD Convention, Understandings regarding the Convention, letter a).

34 See US Operational Law Handbook, above note 31, p. 351.

35 See ‘New Forest: explorers’ guide', available at: http://www.newforestexplorersguide.co.uk/sitefolders/landscape/aintroduction/landscapeintropage.html (last visited 20 September 2010).

36 Negotiating states appeared to agree to the notion of ‘long-term’ being measured in ‘decades, twenty or thirty years as a minimum’. See CDDH/215/Rev.1, para. 27; Y. Sandoz et al., above note 4, para. 1454.

37 The US rejects the Study's conclusion that Rule 45 reflects customary law, see letter dated November 3, 2006 written by John B. Bellinger III, Legal Adviser for the Department of State, and William J. Haynes II, General Counsel for the Department of Defense, to Jakob Kellenberger, President of the International Committee of the Red Cross, in International Review of the Red Cross, Vol. 89, No. 866, June 2007, p. 455. The Rule is described as lex ferenda by Major J. Marsh, Jeremy, ‘Lex Lata or Lex Ferenda? Rule 45 of the ICRC Study on Customary International Humanitarian Law’, in Military Law Review, Vol. 198, 2008, pp. 116–164Google Scholar.

38 J. M. Henckaerts and L. Doswald-Beck, above note 2, Rule 44.

39 This partial criticism of the formulation as adopted relates specifically to the authors' recognition of the precautionary principle found in international environmental law, which this author believes is not reflected at the current time in international humanitarian law, and thus not in customary international humanitarian law; at least, not reflected in the form adopted by the authors. See Karen Hulme, ‘Natural environment’, in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, pp. 204–237, at pp. 223–228.

40 This formulation is found with one wording change of ‘should’ from the US Naval Handbook to ‘must’ in Rule 44 of the Customary Law Study. See J. M. Henckaerts and L. Doswald-Beck, above note 2, Vol. II, Part 1, Ch. 14, p. 861, para. 81.

41 See ‘United Nations Convention on the Law of the Sea of 10 December 1982’ (hereafter UNCLOS), Art. 192, in International Legal Materials, Vol. 21, 1982, p. 1261Google Scholar.

42 See K. Hulme, above note 39, pp. 218–220.

43 See Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (hereafter San Remo Manual), prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, p. 84, para. 12.2. Rather confusingly, the San Remo Manual's provision on environmental protection is also numbered as Rule 44.

44 For example, see UNCLOS, above note 41, Arts. 27(4), 39(3)(a), 56(2), 58(3), 60(3), 66(3)(a), 79(5), 87(2), 142(1), 148, and 234.

45 The phrase found in the Customary Law Study's Rule 44 is mirrored in Rules 34 and 35 of the San Remo Manual, above note 43, governing ‘due regard’ to the rights and interests of states in the exclusive economic zone and on the continental shelf. Here the protection and preservation of the marine environment is specifically listed as a factor to consider in the carrying out of hostile actions (San Remo Manual, Rule 34) and mine-laying (San Remo Manual, Rule 35) in those maritime zones.

46 This represents a slight change of opinion from earlier writings. See K. Hulme, above note 39.

47 According to Aldrich, George H., ‘Customary International Humanitarian Law: an interpretation on behalf of the International Committee of the Red Cross’, in British Year Book of International Law, Vol. 76, 2005, p. 515Google Scholar, ‘there is little, if any, precedent for [Rule 44] in existing law’.

48 J. M. Henckaerts and L. Doswald-Beck, above note 2, Vol. II, Part 1, Ch. 14, p. 861, para. 79.

49 Ibid., p. 880, para. 165.

50 When the environment does not fulfil the requirements of a military objective in Article 52(2) Protocol I.

51 Y. Sandoz et al., above note 4, para. 2191.

52 See Article 57(2)(a) and (b) Protocol I.

53 See Article 58(c) Protocol I requiring the (defending) party to take ‘other necessary precautions to protect … civilian objects under their control against the dangers resulting from military operations’.

54 See also Article 58(a) Protocol I on removing civilian objects, inter alia, from the vicinity of military objectives.

55 See for example comments made in submissions to the International Court of Justice in the Nuclear Weapons Case, as quoted in J. M. Henckaerts and L. Doswald-Beck, above note 2, Vol. II, Part 1, Chapter 14, notably Sri Lanka at p. 866, para. 104, Qatar at p. 865, para. 102, Malaysia at p. 865, para. 97, and Egypt at p. 862, para. 88.

56 It is questionable, however, how much greener tungsten really is.

57 See David Sheets, ‘Military Technology and Renewable Energy’, in Carolyn Pumphrey, Global Climate Change National Security Implications, Strategic Studies Institute, 2008, available at: http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?PubID=862 (last visited 20 September 2010).

58 See Security Council Resolution 687 (1991) of 3 April 1991.

59 See, for example, General Assembly Resolution 61/154 of 19 December 2006, ‘The human rights situation arising from the recent Israeli military operations in Lebanon’; General Assembly Resolution 62/188 of 19 December 2007, ‘Oil slick on Lebanese shores’; General Assembly Resolution 62/30 of 5 December 2006, ‘Effects of the use of armaments and ammunitions containing depleted uranium’; ICRC, ‘1994 Revised Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict’, in International Review of the Red Cross, Vol. 30, No. 311, 1996, pp. 230–237Google Scholar, and the work of the UNEP Post-Conflict Assessment Unit, available at: http://www.unep.org/depi/programmes/post_conflict_assessment.html (last visited 20 September 2010).

60 See Schmitt, Michael N., ‘Humanitarian Law and the Environment’, in Denver Journal of International Law and Policy, Vol. 28, 2000, p. 284Google Scholar.

61 See Global Witness, The Sinews of War: Eliminating the Trade in Conflict Resources, Briefing Document, 2006, available at: http://www.globalwitness.org/media_library_detail.php/480/en/the_sinews_of_war (last visited 20 September 2010); and United Nations Environment Programme, Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law, November 2009, available at: http://www.unep.org/PDF/dmb/ProtectEnvDuringConflict_en.pdf (last visited 20 September 2010).

62 Note the inclusion of an obligation of ‘regard’ to the environment in internal armed conflict in the UK Military Manual. See United Kingdom Ministry of Defence, Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, para. 15.20.

63 Some interesting thoughts on a precautionary approach are included in Avril McDonald, Jann K. Kleffner and Brigit Toebes (eds), Depleted Uranium Weapons and International Law: A Precautionary Approach, T.M.C. Asser Press, 2008.

64 Y. Dinstein, above note 6.