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Protection of the Environment in Times of Armed Conflict: In Search of a New Legal Perspective

Published online by Cambridge University Press:  21 July 2009

Wil D. Verwey
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Abstract

According to, e.g., some Western governments and the ICRC, existing rules of international law would provide adequate protection of the environment in times of armed conflict. However, a proper analysis of the existing rules, contained in relevant treaties and customary international law, suggests that this protection is currently far from adequate, in times of both international and non-international armed conflict. In order to ensure a better protection of the environment in times of armed conflict, a new approach is required which departs from the obvious necessity of a common recognition of the following three fundamental ideas: 1. the indivisibility of a healthy environment as an indispensable condition for the survival of present and future generations; 2. the necessity to disconnect the legal protection of the environment in times of armed conflict from its anthropocentric legal enclosure; and 3. the need to expand the protective scope of the relevant rules beyond the current level of merely prohibiting the known or expectable and the obsoleteness of the distinction between environment protection pursued by the law of peace and environment protection pursued by the law of armed conflict, as well as recognition of the environment as a common heritage (or at least a common concern) of mankind.

Keywords

armed conflictchemical and bacteriological warfareius in belloenvironment protection.
Type
Leading Articles
Information
Leiden Journal of International Law , Volume 8 , Issue 1 , Spring 1995 , pp. 7 - 40
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1995

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References

1. Cf, e.g., Alsdirawi, F., The Negative Impact of the Iraqi Invasion on Kuwait's Protected Areas, paper submitted to the IVth World Congress on National Parks and Protected Areas (IUCN, Caracas, 10–21 February 1992)Google Scholar; Thaggert, H.L., The Gulf War: Environment as a Weapon, 85 Proc. ASIL 214–229 (1991)Google Scholar; Robinson, N.A., International Law and the Destruction of Nature in the Gulf War, 21 Env. L. & Pol. (1991)Google Scholar; Salter, J., Environmental Legal Issues Arising from the Gulf Conflict, 10 OGTLR (1991).Google Scholar

2. For reports on the London and Ottawa Conferences, see G. Plant (Ed.), Environmental Protection and the Law of War: a ‘Fifth Geneva’ Convention on the Protection of the Environment in Time of Armed Conflict (1992).

3. See International Council of Environmental Law, Law Concerning the Protection of the Environment in Times of Armed Conflict, Consultation 13–15 December, Final Report (1991).

4. Morris, Cf.V., Protection of the Environment in Wartime: The United Nations Generally Assembly Considers the Need for a New Convention, 27 The International Lawyer 775–782 (1993)Google Scholar; Lijnzaad, E. & Tanja, G.J., Protection of the Environment in Times of Armed Conflict: the Iraq-Kuwait War, XL NILR 190 et seq (1993).Google Scholar

5. UN Doc. A/47/328 (1992).

6. Cf., respectively, UN Doc. A/C.6/46, SR. 18, at 9 and 41 (1991); and Morris, supra note 4, at 778 and 780.

7. May it suffice, at the outset, just to state for the moment that many authors on the subject take this view.

8. The term “belligerents” is used here as referring to “parties to an international armed conflict”, not in the traditional sense of “parties to a war”. See also note 42, infra.

9. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 16 ILM 1391–1441 (1977).

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12. Cf. L.C. Green, The Environment and the Law of Conventional Warfare 5, n. 11, paper submitted to the Ottawa Conference.

13. 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 (1981), UN Doc. A/CONF.95/15; UKTS Misc. 23 (1981).

14. Emphasis added.

15. This observation should not be understood as a criticism, but as a fact. Significantly, at the 1991 London Round Table Conference, Gasser, the Legal Adviser to the Directorate of the ICRC, although speaking in his personal capacity, put it this way: “[p]erhaps the ICRC does not look so much at the environment as such but more at the environment in the context of and around human beings. As you know the Geneva Conventions are geared essentially to the protection and safeguarding of human beings in times of armed conflict.” And, after referring to the environmentally relevant provisions of ‘Geneva’ Law, he added: “[t]hese prohibitions protect the environment for human beings - when both civilians and combatants are affected”. His additional question:“[b]ut do not most of the serious attacks on the environment inevitably affect mankind?”, should be answered affirmatively, but does not alter the intrinsic limitation of the ‘Geneva’ law addressed here. See H.P. Gasser during the London Round Table Session I, in Plant,supra note 2, at 111. For further comments on this aspect of ‘Geneva’ law, see infra section 5.

16. The principle in dubio mitius implies that if the meaning of a term or phrase is ambiguous or at least not entirely clear, that meaning is to be preferred which is the least onerous or involves the least general restrictions for the party assuming an obligation.The principle eiusdem generis, which is closely related to the principle expressio unius est exclusio alterius, implies that the scope of a non-specific term or phrase is confined by the more restrictive scope of a similar specified term or phrase relating to the same subject matter elsewhere in the same legal instrument. See L. Oppenheim (H. Lauterpacht, Ed.), International Law 953–954 (Vol. 1, 1974). For an illustrative example of the application of the principle eiusdem generis to the law of warfare, in this case implying a restrictive interpretation of the prohibition of the use of chemical weapons under the 1925 Geneva Protocol on CBW, see W.D. Verwey, Riot Control Agents and Herbicides in War 238–239 (1977).

17. See R.A. Falk, The Environmental Law of War: an Introduction, in G. Plant (Ed.),Environment Protection and the Law of War 86 (1992).

18. Falk, supra note 17, at 86 et seq.

19. See Section 5, infra.

20. Bouvier, A., Protection of the Natural Environment in Time of Armed Conflict, International Review of the Red Cross 574 (No. 285, 1991).Google Scholar

21. See Lijnzaad & Tanja, supra note 4, at 181. See also A. Kiss, LesProtocols Additionnels aux Conventions de Genève de 1977 et la Protection de Biens de ľEnvironnement, in Etudes et Essais sur le Droit International Humanitaire en ľHonneur de Jean Pictet 186 (1986).

22. UN Doc. A/47/328, at 5.

23. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972), 11 ILM 1358 (1972).

24. IUCN/ICEL, Protection of Cultural and Natural Heritage Sites in Times of Armed Conflict, 23 Environmental Policy and Law 259 (1993).

25. See Verwey, supra note 16, at 73–158, 239 et seq.

26. Convention on the Prohibition of the Use of Environmental Modification Techniques(1977), 1108 UNTS 151. For background information see Juda, L., Negotiating a Treaty on Environmental Modification Warfare: The Convention on Environmental Warfare and its Impact Upon Arms Control Negotiations, 32 IO 975 et seq (1978).Google Scholar

27. UN Doc. A/46/141 (1991). Subsequently, when introducing the item in the Sixth Committee, Jordan emphasized that the scope of this item should encompass “greater environmental protection, in general, in time of armed conflict”. Hence, the title of the item was later changed, correctly so, into “Protection of the Envionment in Times of Armed Conflict”. See UN Doc. A/C.6/46/SR.18 (1991).

28. Cf. M. Bothe, K.J. Partsch & W.A. Solf, New Rules for Victims of Armed Conflict 347 (1982).

29. Thus, according to Goldblat, the ENMOD Convention “is only a half-measure because of the conditional character of its prohibitions. It tolerates hostile uses of environmental modification techniques which produce destructive effects below a specified threshold.” See Goldblat, J., Legal Protection of the Environment Against the Effects of Military Activities, 22 Bulletin of Peace Proposals 5 (No. 4, 1991).Google Scholar

30. See Blix, H., Arms Control Treaties Aimed at Reducing the Military Impact on the Environment,in J. Makarczyk (Ed.), Essays in International Law in Honour of Judge Manfred Lachs 710 (1984).Google Scholar

31. See Lijnzaad & Tanja, supra note 4, at 188.

32. Declaration of the United Nations Conference on the Human Environment (Stockholm,1972), UN Doc. A/CONF.48/14.

33. World Charter of Nature (1982), UNGA Res. 37/7.

34. More abstract provisions, like the principle of proportionality, the prohibition of indiscriminate attacks, or the ‘Martens clause’, which have developed into fundamental principles of customary ius in bello, will be considered under Section 2.1.3., infra.

35. Convention Respecting the Laws and Customs of War on Land (Hague Convention IV,1907), Annex (the ‘Hague Regulations’), UKTS 9 (1910), Art. 23, para. l(g);Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I, 1949), 75 UNTS 5 et seq., Art. 50; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV, 1949), Art. 53.

36. Additional Protocol I (1977), supra note 9, Art. 54, para. 1.

37. Id., Art. 54, paras. 1–5.

38. Id., Art. 56.

39. See, e.g., Hague Regulations, Art. 23, para. l(g), and Geneva Convention IV, Art. 53.Significantly, at the Ottawa Conference “[t]here was a shared view that wanton destruction of the environment with no legitimate military objective is clearly contrary to existing international law”. See also, eg., “the rule[…] on the destruction of enemy property not imperatively demanded by the necessities of war, can have direct implications for the protection of the environment”. See the Chairman's Conclusions, points 5 and 6.

40. See, e.g.. Additional Protocol I, supra note 9, Art. 56, para. 2.

41. Id., Art. 56.

42. See, eg., Hague Convention IV, An. 2. The traditional si omnes clause implies that the treaty in question is applicable only in wars in which all belligerents involved are parties to that treaty. These conditions no longer play a role, of course, for those provisions which have developed into generally binding rules of customary law.

43. As regards the term “war”, the international community learned a bitter lesson when belligerents between the two World Wars showed little hesitation in escaping from their obligation, under the Covenant of theLeague of Nations and the 1928 Paris Part, not to resort to “war”, by simply titling armed aggression anythingelse but war. Thus, the Japanese Government justified its invasion in Manchuria in 1931 by claiming this was not an act ofwar, but merely “an armed international incident”. See B.V.A. Röling, Volkenrecht en Vrede [International Law and Peace] 158 (1985).

44. Falk, R.A., Environmental Warfare and Ecocide, in R.A. Falk (Ed.), 4 The Vietnam War and International Law 295 (1976).Google Scholar

45. In this respect, the Group of Experts assembled at the Munich Meeting observed “that the current recognition that the environment itself is an object of legal protection in times of armed conflict implies that traditional perceptions of proportionality and military necessity have become obsolete.” See Final Report, at 2, n.3, point 2. According to Betsy Baker, indeed, new “environment-specific provisions […] may not be necessary in all circumstances. This is in part because five long-standing precepts of armed conflict environ provide potentially far-reaching protection for the environment in times of armed conflict without specifically addressing environmental concerns: the limitation principle,military necessity, discrimination (i.e., between military and civilian objects), preventing unnecessary suffering, and proportionality”. However, she also expresses doubts as to whether such generalcustomary principles of the law of warfare can provide for adequate protection of the environment. See Baker, B., Legal Protection for the Environment in Times of Armed Conflict, 33 VJIL 359, 360–367 (1993).Google Scholar

46. See Additional Protocol I, supra note 9, Art. 1, para. 2.

47. Michael Bothe holds:“[i]n our time, the ‘dictates of public conscience’ certainly include environmental concern.” Bothe, supra note 11, at 3. The experts assembled at the Ottawa Conference partly adopted Bothe's view, concluding that “[t]he customary laws of war, in reflecting the dictates of public conscience, now include a requirement to avoid unnecessary damage to the environment” (emphasis added). See the Chairman's Conclusions,point 9.

48. Id., point 9.

49. In this regard, Goldblat correctly observes, with respect to the reservations in the text of Additional Protocol I, that in several important instances “derogation from the prohibitions may be made whenever it can be justified by military necessity. However, the required justification is bound to be subjective, because there is no way of balancing such unquantifiable notions as [unnecessary] human suffering and the demands of war. In practice, this provision could amount to passing to commanders in the field the responsibility for deciding in the heat of battle what is lawful and what is not”. Goldblat, J.,Protection of the Natural Environment Against the Effects of Military Activities: Legal Aspects 4, paper submitted to the Ottawa Conference on the Use of the Environment as a Tool of Conventional Warfare (9–12 July 1991).Google Scholar

50. In the Nicaragua Case, the ICJ took the position that “even if a treaty norm and a customary norm [] were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability”. Moreover, with respect to the prohibition of armed force and the right of self-defence, the Court noted that the contents were no longer identical, observing that “customary international law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content. This could also be demonstrated for other subjects, in particular for the principle of non-intervention.” Case concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), 1986 ICJ Rep. 14, paras. 175 and 176.

51. J.A. McNeely (Ed.), Parks for Life, Report of the IVth World Congress on National Parks and Protected Areas 97 (IUCN, 1993).

52. Cf. 1966-H Yearbook of the ILC 267.

53. Lord McNair, The Law of Treaties 698 (1986). See also L. Oppenheim (H. Lauterpacht Ed.), International Law 302 (Vol. 2, 1972); and J.P.A. Francois, Grondlijnen van he Volkenrecht [Basics of International Law] 349 (1957).

54. M. Akehurst, A Modern Introduction to International Law 138 (1980).

55. See Oppenheim, supra note 53, at 302–305.

56. Id., at 303. See also McNair, supra note 52, at 703.

57. See Oppenheim, supra note 53, at 303.

58. Id., at 304. See also Francois, supra note 53, at 349.

59. See Akehurst, supra note 54, at 139.

60. During the first debates in the Sixth Committee on the ‘Jordanian item’, only some delegations, indeed, suggested that the rules of international law concerning protection of the environment “may not be suspended in times of war”. See Morris, supra note 4, at 778.

61. Bothe, supra note 11, at 7; and the Chairman's Conclusions, supra note 47, point 11.

62. Possibly except for the 1972 Paris Convention, according to the Legal Experts of IUCN,cf. the text accompanying note 24.

63. Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague Convention V); and Convention Concerning the Rights and Duties of Neutral Powers in War (Hague Convention XIH).

64. For a treatise on the (potential) relevance of the law of neutrality to environment protection, see M. Bothe et al., Protection of the Environment in Times of Armed Conflict, Report to the Commission of the European Communities 49, SJ/110/85.

65. See Lijnzaad & Tanja, supra note 4, at 172–173.

66. See Bothe et al., supra note 64, at 8.

67. See Section 2.1.1., supra.

68. See McNair, supra note 53, at 728. Similarly, the Group of Experts assembled at the Munich Meeting drew “attention to the fact that the rules of international environmental law continue to apply between parties to an armed conflict and third parties.” See Final Report, at 2, n. 3, point 6.

69. See Section 2.1.1., supra.

70. Cf., e.g., Stockholm Declaration, supra note 32, Principles 6, 7, and 21; World Charter of Nature, supra note 33, Principle 11.

71. The UNCLOS principle that “[t]he high sees shall be reserved for peaceful purposes” (Art. 88), and that “[t]he Area shall be open to use exclusively for peaceful purposes by all States” (Art. 141), is not intended to exclude military activities, neither in times of peace nor in times of armed conflict. In particular, states which (claim to) have been attacked and states participating in military operations ordered, recommended or sanctioned by competent UN organs, can use the oceans for what, by any normal standard, would be called ‘belligerent’ purposes. The question raised here, in any case, would probably have to be answered along the lines suggested by the experts assembled at the Ottawa Conference: “[a]t the outset, the view was clearly expressed that the [specific] law of armed conflict took precedence over the general law of the environment during wartime”. See the Chairman's Conclusions, supra note 47, point 11.

72. Cf. E. Marino during the London Round Table Session I, in Plant (Ed.), supra note 2, at 108.

73. See Bouvier, supra note 20, at 576.

74. In the view of McCoubrey this is “the primary way forward”. The observations presented in the present study above tend to shed considerable doubt, it would appear,on the convincingness of his conclusion that “the explicit and implicit environment protection provisions of the modern ius in bello set out an adequate basis of care. The issue is not new law, but making the existing principles work effectively”. Cf. H. McCoubrey, Environmental Protection in Armed Conflict: Present Provision and Future Needs 5–6 (manuscript, University of Nottingham, January 1994).

75. See ICRC, Protection of the Environment in Times of Armed Conflict, 24 EnvironmentalPolicy and Law 37 et seq. (1994).

76. H. Granow, Recent Developments in NATO Law, paper submitted to the annual meeting of the Association of Attenders and Alumni (A.A.A.) of the Hague Academy of International Law (Siena, 24 May 1994).

77. This is not to suggest that there would be no such thing as minor or insignificant environmental harm: not all adverse environmental impact must trigger global or even (sub-)regional effects, or must destroy an ecological sub-system. In this respect, Szasz correctly observes that there “would seem to be no point in trying to condemn warfare itself as a per se violation of the environment […] or to prohibit warfare on environmental grounds through a universal treaty”. See Szasz, P.C., Study of and Proposals for Improvements to Existing Legal Instruments Relating to the Environment and Armed Conflicts 5, paper submitted to the Ottawa Conference on the Use of the Environment as a Tool of Conventional Warfare (9–12 July, 1991). Furthermore, the presentauthor realizes very well that all modern hostilities are bound to have some environmental impact, and that one clearly cannot prohibit all kinds and degrees of environmental harm. Therefore,the - for the time being, undefined - phrase “serious or significant harm” (as it is used for the purposes of the ENMOD Convention) has been chosen here. As part of the legislative process envisaged here, it would be up to environmental experts to indicate to the lawyers which kinds of environmental harm should be considered as “serious or significant”.Google Scholar

78. A. Kiss during the discussions at the 1994 A.A.A. meeting in Siena, see supra note 76.

79. A “rough guide” indeed, intended to be thought-provoking: the remarks made here should be understood, at the present stage of their development, as a first exploration of a potentially useful new approach towards the topic under discussion.

80. S. Hawkins, in 85 Proc. ASIL 221 (1991).

81. On the futility of this traditional distinction from an environment protection point of view, Marino has observed: “[i]t can be argued that the protection of its own natural environment should be left to each sovereign country even in times of internal war.However, beyond a certain point, the destruction of any one country's environment becomes an environmental concern of other countries too, and as such a matter for international law. Beyond a certain point of destructiveness regarding the natural environment, therefore, the distinction between ‘non-international’ and ‘international’ armed conflicts makes no material sense”. Marino, supra note 72, at 108–109.

82. Among the specific proposals recently submitted by directly interested NGOs and experts are those related to a better protection of national parks and protected areas against military impact, formulated by the IUCN Workshop on Protected Areas, War and Civil Strife, chaired by the author of this article, during the IVth World Congress on National Parks and Protected Areas. See McNeely, supra note 51, at 96 et seq.

83. UN Doc. ARES/44/228 (emphasis added).

84. Principle 3, reproduced in 31 ILM 874 (1992). The reference to “present and future generations” as a holistic concept appears in the Stockholm Declaration on the Human Environment for the first time (Principle 1), UN Doc. A/CONF. 48/14/Rev. 1, and 11 ILM 1416 (1972).

85. Id., Principle 7 (emphasis added).

86. Reproduced in 31 ILM 814 et seq. (1992) (emphasis added).

87. See UN Doc. A/49/631 (1994), at 22–23 (emphasis added).

88. N.J. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties in an Interdependent World 361 (1995).

89. See Final Report, supra note 60, recommendations 10 and 17, respectively.

90. In support of this approach, one might also consider references in the literature to the right to a healthy environment as a collective human right. Thus, Mrázek states that “[t]he conviction is growing that the environment ranks among the most fundamental values of the whole international community. The right to the [sic] healthy environment is characterized as one of the collective human rights closely connected with the principal man's right to life”. Mrázek, J., Conventional Warfare and the Protectionof the Environment 8–9, paper submitted to the Ottawa Conference on the Use of the Environment as a Tool of Conventional Warfare (9–12 August, 1991).Google Scholar

91. Westing, A.H., The Atmosphere as a Common Heritage of Mankind: its Role in Environmental Security, 34 Scientific World 5–6 (No. 4, 1990).Google Scholar

92. See N.J. Schrijver, supra note 88, at 370–371.

93. On this phrase, see note 77, supra.

94. See Section 2.1.4. and note 60, supra.

95. During the Rio Conference, considerable debate developed on the question whether a Third ‘Green’ Protocol additional to the Geneva Red Cross Conventions should be drafted, or whether better compliance with existing rules would do more good than drafting new rules. The latter opinion was held by, e.g., the US Government and the ICRC (see UN Doc. A/47/328 (1992)), but the arguments put forward left unanswered many of the questions, and did not clear up many of the uncertainties identified in the present study. A typical result, alas, was the ambiguity of Principle 24 of the Rio Declaration, which recalls the obligation of states to respect the rules of international law protecting the environment in times of armed conflict and “to co-operate in its further development, as necessary” (emphasis added).