However, peace law comprises international environmental norms, which are the only set of rules able to protect the environment directly or indirectly. This article seeks to demonstrate, along with some authors , that International Environmental Law’s application does not stop during an armed conflicts. On the contrary, the subject matter of these norms, i.e. the protection of the environment, implies that their application is not limited by the occurrence of hostilities. In addition, the present paper aims to demonstrate the importance of introducing elements of legal certainty, control and sanction of harmful behavior to the environment of a belligerent State, through the application of international environmental law. Furthermore, the inadequate protection by the law of war, both in the substantive protection of the environment and the liability regime, only increases this need.
"Seven days from now I will send rain on the earth for forty days and forty nights, and I will wipe from the face of the earth every living creature I have made."2 This order given by God, according to the Bible3 and the Koran4 echoes the myth of Atrahasis (17th century B.C.) according to which the God Henki advised Atrahasis to build a boat in order to survive to the storm, which he would launch to punish humans for the din of cities. These stories testify to the first uses of the environment as a weapon.
Environment as Weapon : Human history is full of examples of uses of the environment for military ends. During the Peloponnesian war (431-404 B.C.), the Scythian practiced the scorched earth policy, leaving uncultivable land behind them. The Ranch Hand operation during the Vietnam War (1964-1975) aimed at destroying forests and cultures through bombings and the use of herbicides. However, the use of the environment as a weapon is not the only source of damage linked to an armed conflicts. The environment can be injured indirectly through the migration of the population (Salvador, Kosovo5), the over-exploitation of natural resources, pollution, or the development of environmental crimes such as the trade of protected species. Moreover, with the development of new types of weapons, such as the nuclear weapon, and of new potential targets such as the nuclear power plants or the oil platforms6, these phenomena are bound to grow. It is estimated that 10 to 30 percent of all environmental degradation is a result of the militaries.7
Environment as Victim : The Gulf War (1990-1991) has left a strong mark in public society’s memory and forced the international community to face the issue of environmental damages caused by armed conflicts. However these damages never ceased. For instance, a few years later, one of the main Colombian pipelines was bombed, which caused severe oil spilling in rivers and led to the contamination of drinking water and irrigation water and sterilized the land. These examples are not comprehensive, but they show how the environment has been manipulated or injured for and by military means. It still is. Hence, the issue of the application of international environmental law, which directly protects the environment, during armed conflicts, comes to mind naturally.
In International Law, there is no specific definition of the environment. The Stockholm Conference of 1972 set out the principle8 according to which "[t]he protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments." Neither the Rio Declaration on environment and development of 1992, nor the First Protocol to the Geneva Conventions, which is a 1977 amendment relating to the protection of victims of international armed conflicts, give a more precise definition. However, the International Court of Justice (ICJ) indicated that the environment is composed of the "space inhabited by humans, but also the flora and fauna, and on which depend the quality of their lives and their health, including for future generations." 9
War and Armed conflicts : Creating the link between the protection of the environment and armed conflicts, the General Assembly of the United Nations proclaimed on November 5th 2001, that November 6th of each year would be named International Day for Preventing the Exploitation of the Environment in War and Armed Conflicts.10 The concept of armed conflicts has been distinguished from the concept of war since 1945, when the use of force became prohibited by Article 2 of the United Nations Charter.11 Today, the notion of armed conflicts is wider than the traditional notion of war and includes internal conflicts. It remains that the existence of an armed conflicts implies the application of specific rules such as jus ad bellum (regarding the outbreak of hostilities e.g. justifiable reasons for a country to declare war) and the jus in bello (regarding the hostilities, e.g. the prohibition of chemical arms). These two sets of rules define the law of war.
Hence, one has to distinguish between international environmental law, traditionally applied during peace time, and the law of war. Moreover, peace law and the law of war are usually opposed as they are considered to apply in two opposite situations. This view appears to be outdated today; yet the "greening" of the law of war brought out issues related to the environmental damages arising out of war and also issues related to "definition and application of humanitarian rules governing methods and means of armed conflicts." 12 In parallel, the development of an important set of rules, which constitute international environmental law, allows the protection of the environment in a more precise and complete way than the law of war. These norms are not limited to an indirect protection of the environment and are not bound by States’ frontiers.
Law of war and Law of peace : Hence, it is interesting
to question the relations between the law of peace and
the law of war protecting the environment: should the
traditional opposition between these two sets of rules
be replaced by their complementarities? The answer to
this question has important practical consequences. For
instance, the destruction of the Jiyeh power plant in
2006 in Lebanon and the resulting oil spill could have
led to the application of the Convention creating the
International Oil Pollution Compensation Funds of
December 18th 1978, and the International Convention on
Civil Liability for Oil Pollution Damage of November
29th 1969. These norms belong to international
environmental law, according to the traditional view;
their application is replaced by the law of war. However
their application could, in our view, trigger an
institutional mechanism and a ground for the
international responsibility of the wrongdoer, i. e. the
belligerent State responsible for environmental damage.
Instead compensation has been dealt with through the
United Nations General Assembly. The government of
Israel has still, to this day, not compensated the
government of Lebanon for the damages.13
The purpose of the following lines will therefore be to determine how the protective instruments of international environmental law can apply during an armed conflicts. Therefore, this article will demonstrate the existence of "[n]orms and provisions that lead directly or indirectly to the protection of the environment and whose application is not limited to the existence of an international armed conflicts." 14 These norms belong to what has been named previously peace law, but because of their subject matter i. e. the protection of the environment, their application is not bound by the occurrence of an armed conflicts.
The Gaps of the law of war : Many scholars have pointed out the gaps of the law of war regarding the protection of the environment.15 In 1976, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) was adopted and prohibited the environmental modification techniques, which have widespread, long-lasting and severe effects.16 The First Additional Protocol of 1977 to the Geneva Convention mentioned earlier states that "[c]are shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population." 17 However, most damages to the environment fall outside the scope of these norms. Indeed, the criteria of the widespread, long-lasting and severe effects are imprecise and hard to be characterized. These gaps are even more visible regarding internal conflicts which are governed by the Second Protocol to the Geneva Convention of 1977. This Second Protocol prohibits only the "[s]tarvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless for that purpose, objects indispensable to the survival of the civilian population such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works." 18 Last but not least, the jus in bello has a limited scope and does not protect the High Seas, the atmosphere, and the ozone layer and climate change. More generally the issue of climate can not be related to a single State and therefore can not be subject to these rules.
The need to apply International Environmental Law : In response to these gaps, the account of which is not exhaustive, the International Law Commission (ILC), whose mission is the codification of customary international law, adopted in 2011 draft articles on the effects of armed conflicts on treaties.19 The first article of the project determines the scope of its application and states that "[t]he present draft articles apply to the effects of armed conflicts on the relations of States under a treaty". The 8th commentary following Article 2 states that "[c]ontemporary developments have blurred the distinction between international and non-international armed conflicts. (…) The draft articles therefore include the effect on treaties of non-international armed conflicts." Furthermore, the second part of the draft articles establishes the principle governing the application of treaties in case of an armed conflicts. Articles 3 to 7 state that the principle according to which the occurrence of an armed conflicts leads ipso facto to the termination or suspension of treaties between belligerent States and third States is outdated. Article 4 20 further establishes guidelines to determine whether a treaty applies during an armed conflicts. The first step resides in the search for a provision of the treaty establishing its applicability. Absent any such disposition, Article 5 21 provides that one has to use the international rules on treaty interpretation. Then, Article 6 22 provides factors indicating whether a treaty is susceptible to termination, withdrawal or suspension. These factors are related to the characteristics of the treaty (its nature, its subject-matter, its object and purpose, its content and the number of the parties to the treaty) and of the conflicts (its territorial extent, its scale, intensity and duration).
Article 7 refers to the list of treaties. These treaties apply both in times of peace and of war because of their subject matter. Among these treaties reside treaties relating to the international protection of the environment.23 Indeed, alike international norms regarding the protection of human rights, the norms related to the protection of the environment have a subject matter that commands their continued application. In its commentaries, the ILC specifies that the effect of such an indicative list is to create a set of rebuttable presumptions based on the subject matter of these treaties. In addition, the Commission, in the comments under Article 2, highlights that no distinction between bilateral and multilateral treaties should be made. Indeed, this presumption applies to bilateral treaties, which is particularly important when the Parties to the treaty are the belligerent States.
Conclusion : This article has demonstrated the existence of a body of rules designed to protect the environment, whose scope extends to the occurrence of armed conflicts, internal or international. This presumption of applicability can be outreached proactively through web sites, workshops and publications by appropriate body of United Nations . Such presumed applicability can be reversed either by State’s justification derived from the law of States’ responsibility, or causes of termination or suspension of environmental treaties. This reversibility introduces elements of flexibility for States in the state of war. However, in order that such flexibility is not misused or abused, there is need to be capacity building efforts for the appropriate government representatives and judicial officials in UN.
1 e. g. MOLLARD-BANNELIER Karine, La protection de l’environnement en temps de conflit armé, Paris, Pédone, 2011 ; VONEKY Siljia, « Peacetime environmental law as a basis for State responsibility for environmental damage caused by war », in AUSTIN Jay E., BRUCH Carl E. (ed), The environmental consequences of war. Legal, economic and scientific perspectives, Cambridge, Cambridge University Press, 2000, p. 190.
2 The Bible, Genesis, chapter 7.
3 Genesis, chapter 6 à 9..
4 Sura 11, verses 27 à 51..
5 See e. g. MOLLARD-BANNELIER Karine, La protection de l’environnement en temps de conflit armé, Paris, Pédone, 2011, pp. 1-27 ; Géo 4 report of UNEP ; Publication of WWF, L’herbe foulée, atténuer l’impact des conflits armés sur l’environnement, « Chapitre 1 : introduction : Les conflits armés et l’environnement ».
See for instance Al-Duaij, Nada, "Environmental Law of Armed Conflicts" (2002). Dissertations & Theses. Paper 1
7 (http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1000&context=lawdissertations), p.3.
8 Principle 2
9 KDHIR Moncef, Dictionnaire juridique de la Cour internationale de justice, Bruxelles, Bruylant, 2ème édition, 2000, p. 159.
11 PARTSCH Karl Joseph, “Armed Conflicts”, in BERNHARDT R. (ed), pan style="font-style:italic">Encyclopaedia of Public International Law, Vol. I, North Holland, 1992, p. 249-252.
12 Article 2 prohibits the use of force by the Member States of the United Nations, and Article 33 of the Charters obliges States to use peaceful means to solve a dispute. See also: SANDS Philippe, Principles of International Environmental Law, Second Edition, 2003, Cambridge University Press, p.316.
14 VONEKY Siljia, « Peacetime environmental law as a basis for State responsibility for environmental damage caused by war », in AUSTIN Jay E., BRUCH Carl E. (ed), The environmental consequences of war. span style="font-style:italic">Legal, economic and scientific perspectives, Cambridge, Cambridge University Press, 2000, p. 190.
15 See e. g. UNEP, Protecting the Environment during armed conflicts: an inventory and analysis, 2009 ou AUSTIN J.E. et BRUCH C. E, The Environmental Consequences of War: Legal, economic and scientific perspectives, Cambridge University Press, 2000.
16 Rapport de la Conférence du Comité du désarmement, Vol. I, AG, documents officiels : 31ème session, Supplément n°27 (A/31/27).
17 Article 55
18 Article 14
19 Draft articles on the effects of armed conflicts on treaties, adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10, para. 100) : http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/1_10_2011.pdf
20 “Where a treaty itself contains provisions on its operation in situations of armed conflicts, those provisions shall apply.”
21 “The rules of international law on treaty interpretation shall be applied to establish whether a treaty is susceptible to termination, withdrawal or suspension in the event of an armed conflicts.”
22 “In order to ascertain whether a treaty is susceptible to termination, withdrawal or suspension in the event of an armed conflicts, regard shall be had to all relevant factors, including: (a) the nature of the treaty, in particular its subject matter its object and purpose, its content and the number of parties to the treaty; and (b) the characteristics of the armed conflicts, such as its territorial extent, its scale and intensity, its duration and, in the case of non-international armed conflicts, also the degree of outside involvement.”
23 Article 7-g