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Restrictions on the use of force at sea: An environmental protection perspective

Published online by Cambridge University Press:  04 September 2017

Abstract

The restrictions on the use of force at sea exist in different branches of international law: the law of the sea and environmental law, mainly applicable during peacetime, and international humanitarian law (IHL), as the law applicable in times of armed conflict. Different rules from these areas must be compared and analyzed to determine the common principles applicable to restricting the use of force at sea for the purposes of environmental protection. Taking into account the particular problems of protecting the marine environment in the context of the use of force, the law of the sea and international environmental law should be applied to restrict means and methods of using force at sea during armed conflict. The detailed concepts and approaches in the law of the sea and environmental law may complement IHL, and the precautionary principle of international environmental law should be triggered to address the lacunae in IHL protecting the marine environmental during armed conflict.

Type
Maritime operations
Copyright
Copyright © icrc 2017 

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References

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38 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 35(3).

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50 One line of thought focused on the obligation of “care” in Article 55(1) of AP I holds that the real gem hidden among those provisions is not the prohibition of means and methods causing widespread, long-term and severe damage in Article 35(3), but the obligation on States Parties to take care to protect the environment against such harm. See Hulme, Karen, “Taking Care to Protect the Environment against Damage: A Meaningless Obligation?”, International Review of the Red Cross, Vol. 92, No. 879, 2010, pp. 675676CrossRefGoogle Scholar.

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53 “With respect to attacks, the following precautions shall be taken: those who plan or decide upon an attack shall: take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” See AP I, Art. 57(2)(a)(ii).

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58 Ibid.

59 See Hague Convention II, Art. 23(e).

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63 Hague Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War, USTS 545, 18 October 1907 (entered into force 26 January 1910).

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73 Kravchenko, Svitlana, Chowdhury, Tareq M. R. and Bhuiyan, Jahid Hossain, “Principles of International Environmental Law”, in Alam, Shawkat et al. (eds), Routledge Handbook of International Environmental Law, Routledge, London and New York, 2012, p. 43Google Scholar.

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77 See, e.g., the Preamble to the Convention for the Protection of the Marine Environment of the North-East Atlantic, 2354 UNTS 67, 22 September 1992 (entered into force 25 March 1998) (OSPAR Convention); and the Preamble to the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2226 UNTS 208, 29 January 2000 (entered into force 11 September 2003).

78 See, e.g., Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1673 UNTS 57, 22 March 1989 (entered into force 5 May 1992), Art. 4(2)(a); Convention for the Protection of the Marine Environment of the North-East Atlantic, Art. 2(2)(a); UN Framework Convention on Climate Change, 1771 UNTS 107, 9 May 1992 (entered into force 21 March 1994), Art. 3(3).

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87 Antarctic Treaty, 402 UNTS 71, 1 December 1959 (entered into force 23 June 1961), Art. 1.

88 Annex IV to the Protocol on Environmental Protection to the Antarctic Treaty, 30 ILM 1455, 4 October 1991 (entered into force 14 January 1998), Arts 3(1) and 4.

89 See Antarctic Treaty, Art. 6(1).

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92 Ibid.

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95 Guidelines for Military Manuals, above note 34, Rule 4.

96 See Convention on Biological Diversity, Art. 2(1).

97 See Protocol relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1313 UNTS 4, 2 November 1973 (entered into force 30 March 1983), Art. 1(2).

98 See International Convention on the Removal of Wrecks, 46 ILM 694, 23 May 2007 (entered into force 14 April 2015), Art. 1(4).

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103 Central to the international law of law enforcement are the general principles of necessity and proportionality. When it is necessary to use force, the force actually used must be no more than the minimum necessary in the circumstances. See Casey-Maslen, Stuart and Connolly, Sean, Police Use of Force under International Law, Cambridge University Press, Cambridge and New York, 2017, p. 354CrossRefGoogle Scholar.

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106 See UNCLOS, Art. 225.

107 P. Benvenuti, above note 45, p. 510.

108 PCA, Maritime Boundary Delimitation, above note 15, para. 518.

109 ICJ, Fisheries Jurisdiction (Spain v. Canada), Judgment, ICJ Reports 1998, para. 84

110 See ICRC, Exploring Humanitarian Law IHL Guide: A Legal Manual for EHL Teachers, 5 June 2009, available at: www.icrc.org/en/publication/0960-exploring-humanitarian-law-ehl-guide-legal-manual-ehl-teachers.

111 “Enclosed or semi-enclosed sea” means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. See UNCLOS, Art. 122.

112 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, A/HRC/26/36, 1 April 2014, para. 63, p. 11.

113 “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” See Hague Convention II, Preamble.

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118 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Art. 11(3).

119 See P. W. Birnie and A. E. Boyle, above note 74, p. 181; Churchill, Robin Rolf, Lowe, Alan Vaughan, The Law of the Sea, Manchester University Press, Manchester, 1999, p. 329Google Scholar.