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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 5 |
R.A. MALVIYA[*]
Developing through customs and treaties, two important regimes of law have come into existence: International Law of Environmental Protection and International Law of War or International Law of Armed Conflict.[1]
The law of environmental protection has developed primarily in the twentieth century, whereas the international law of war or armed conflict has evolved over many centuries. But it has only recently developed characteristics similar to the law of environmental protection. Today, the laws of war contain a number of limitations on environmentally disruptive activities during hostilities. Some of these limitations are rooted in what Schafer calls “environmental considerations” or “environmental ethics”.[2] There exists an environmental ethic in both the regimes of law which is indicative of a common philosophy or common value system shared by them.
Attacking environment as a means of waging war is not a novel concept. There are a number of wars in which attempts have been made to annihilate the enemy by assaulting the environment.[3]Also, harnessing the powers of nature to manipulate the environment as a means of waging war has been evidenced, e.g., in the Vietnam War.[4]
Environment represents the hope and future of every society. Destroying the environment means destroying the society itself. Today’s wars are deadlier wars. Brutal disregard for humanitarian norms and for the Geneva Conventions’ rules of warfare now extends to environment which is attacked during conflicts. Therefore, the issue of destruction of the environment is one of the most disturbing aspects of armed conflicts today. [5]
Greater environmental destruction in modern warfare and the development of the technological capacity for greater destruction of the environment in the modern age are the two dangerous trends. Therefore, the need to understand the international laws that govern the means and methods of warfare is greater than ever.
The present study highlights the major developments in the area of environmental protection law. It, then, explores the basic tenets common to the twin regimes of law. Lastly, it underlines the needs to use the principles of environmental protection laws in interpreting the environmental protection concepts of the laws of war.
A. International arbitral and judicial decisions on environmental disputes provides principles of international law. The following are frequently cited for the international environmental law which they establish :
(i) In the Trail Smelter Arbitration,[6] the Tribunal held that no state has a right to use or permit the use of its territory in such a manner so as to cause injury to the territory of another or property therein. This ruling is a reflection of the principle of non-interference established by customary international law and expressed in the maxim sic utero tuo ut alienum loedas[7]
(ii) Confirmation of the ruling in the Trail Smelter Arbitration may be found in the attitude taken by the ICJ in the Corfu Channel case.[8] In that case, the ICJ held that it is every state’s obligation not to knowingly allow its territory to be used for acts contrary to the rights of other states.
(iii) The Lake Lanoux case is another important international arbitral decision laying down the principle of proper uses of inland waters. In it, the tribunal ruled that there exists a principle prohibiting the upstream state from changing the waters of a river in their natural condition causing serious injury to the downstream state.[9]
(iv) The rule of state responsibility for trans-boundary injuries caused by industrial fumes is well established. Thus, when the residents of Juarez (Mexico) complained that two American companies were discharging bad odours which caused environmental injury in Juarez, the US Secretary of State responded that he “regrets inconvenience of discomfort that the activities of the two US plants may have caused to Mexico”. [10]
(v) In the Cosmos 945 case, the USSR’s willingness to pay under a settlement agreement with Canada and its eventual voluntary payment of damage to Canada demonstrates the impropriety of pollution in general and trans-boundary pollution in particular.[11]
(vi) During the proceedings of the Nuclear Weapons case, [12] it was argued that the rules of humanitarian law are part of jus cogens as defined in Art. 53 of the 1969 Vienna Convention on the Law of Treaties; therefore, there arose a question as to whether the principles and rules of international humanitarian law are part of jus cogens? The ICJ declined to answer it by holding that the case involved the question of the applicability of humanitarian law in case of recourse to nuclear weapons and the consequences of that applicability for the legality of recourse to these weapons and that this does not raise the question of the character of humanitarian law as such.[13] Judge Weeramantry disagreed with the Court. In his dissent, he argued that the status of humanitarian law being part of jus cogens was germane to the question of legality of nuclear weapons. He observed that the rules of humanitarian law of war have clearly acquired the status of jus cogens, for they are fundamental rules of a humanitarian character from which no derogation is possible without negating the basic considerations of humanity which they are intended to protect.[14] He quoted with approval Judge Robert Ago’s view that the rules of jus cogens include, inter alia, fundamental rules of humanitarian nature, such as (i) prohibition of genocide, (ii) slavery, (iii) racial discrimination, (iv) protection of essential rights of human persons in time of peace and war.[15] Judge Weeramantry, then, identified certain principles for the purposes of the Nuclear Weapons case : (i) the prohibition against causing unnecessary suffering; (ii) the principle of proportionality; (iii) the principle of discrimination between combatants and non-combatants; (iv) the obligation to respect the territorial sovereignty of the non-belligerent states; (v) the prohibition against genocide and crimes against humanity; (vi) the prohibition against causing lasting and severe damage to the environment (emphasis added); and, (vii) human rights law.[16]
However, even without characterising the principles of humanitarian law as jus cogens, the ICJ described them as “cardinal” (or fundamental) principles.[17] The Court further said that these fundamental rules of humanitarian law applicable to armed conflicts are to be observed by all states, whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.[18]
The Court noted two “cardinal” principles contained in the texts constituting the fabric of humanitarian law, namely, (i) protection of civilian population and civilian objects and distinction between civilian and military targets; and (ii) prohibition against causing unnecessary suffering to combatants. In application of this principle, states do not have an unlimited freedom of choice of means in the weapons they use.[19] The Court recognised that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The Court noted the existence of general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.[20] The Court noted furthermore that in their application in armed conflict, Art. 35 (3) and Art. 55 of the Additional Protocol I of 1977 (referred to Infra) provide additional protection for the environment. Taken together, these provisions embody a general obligation to protect the natural environment against wide-spread, long-terms and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals.[21]
In essence, the environmental law has contributed to the emergence of a basic principle of humanitarian law, namely, the prohibition of means and methods of warfare causing wide-spread, long-term and severe environmental damage.[22]
B. Activities of the U.N. and other multilateral international organisations demonstrate that a consensus regarding environmental protection has emerged among states as reflected in their actions. The U.N. held a conference in 1972 in Stockholm and adopted a Declaration of Principles relating to protection and enhancement of the global environment.[23] These principles stress the undesirability of dumping substances that the environment cannot handle. The principles view the oceans as res commune and disapprove of pollution of the sea. They also create an affirmative duty on states to avoid causing environmental harm to other states and call upon states to cooperate in the development of international law of environmental protection by international and municipal means. Principle 26 of the Declaration states that man and his environment must be spared the effects of nuclear weapons and other means of mass destruction.
The U.N. established UNEP in 1972. The UNEP serves as a focal point for environmental action and co-ordination within the U.N. system. In 1974 the U.N. General Assembly adopted the Charter of Economic Rights and Duties of States and included in it a provision on environmental protection. The provisions in essence stated that the protection, preservation and enhancement of the environment for the present and future generations is the responsibility of all states. It further added that all states have the responsibility to ensure activities within their jurisdiction or control do not cause damage to the environment of other states.[24] The 1982 U.N. General Assembly resolution on World Charter for Nature calls upon states to respect nature to protect endangered species; to protect habitat of all creatures; and, to manage all eco-systems, organisms and lands, marine and atmosphere resources to maintain optimum sustained productivity. [25] The International Law Commission believes that it is a principle of international law that states should refrain from activities that may cause harm to other states in the use of international watercourses and that states have an obligation not to pollute such streams.[26]
OECD, a multilateral organisation and independent of the U.N., has passed some significant resolutions regarding environment. The notable ones are: Declaration on Environmental Policy; Principles Concerning Trans-frontier Pollution; and Polluter Pays Principle.[27]
An analysis of the customary international law of environmental protection, as noted above, would reveal some fundamental principles underlying it. They may be stated as below:[28].
(i) Nations must consider the extra-territorial effects of actions taken within their territory. It is the responsibility of a nation to control pollution which causes damage to another.
(ii) The principle of good neighbourhood requires a state not to allow its territory to be used. For acts contrary to the rights of others.
(iii) A country which fouls the air or water of the neighbouring downstream nation is committing ecological aggression.
(iv) A state having evidence of contamination of its territory, caused by another state’s activities, may ask for reparations for the damage done.
(v) States may demand immediate cessation of the contaminating activities of another state. Measures to enforce this claim include the whole gamut of sanctions ranging from measures taken in self-preservation to reprisals and economic sanctions.
(vi) Areas of humanity’s environment viewed as res communes by the international community (outer space, oceans, ocean floors, arctic and antarctic) cannot be used for the purpose of dumping waste.
(vii) The concept of res nullius is no longer a player on the international scene. State cannot, for example, view the air over their territory as res nullius.
(viii) The prohibition of means and methods of warfare causing wide-spread, long-term and severe environmental damage has emerged as a basic principle of international humanitarian law.
It deals with environmental protection on an international scale. It prohibits establishment of military bases and fortifications, carrying out of testing of military weapons, nuclear explosions and disposal of nuclear wastes in the Antarctic.[29]
The treaty bans all nuclear weapons testing in outer space, earth’s atmosphere and underwater. One of the goals of the treaty is to put an end to contamination of man’s environment by radioactive substances.[30] Thus, this treaty also strongly values environmental protection.
Parties to the treaty have agreed to pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also changes in the environment of the earth and, where necessary, adopt measures for the purpose.[31]
It establishes a system of international liability for environmental damage caused by oil spills from bulk carriers. It affirms the proposition that the nations of the world can not pollute oceans with impunity.[32]
It protects oceans by seeking to control the quantity and character to wastes dumped into the oceans in order to minimise the likelihood of damage to human and marine life.[33]
It calls for the protection and conservation of important cultural resources and special natural sites. One of the goals of the treaty is historic preservation which means transfer of cultural and scenic heritage of future generations.[34] It thus recognises the need to protect unique aspects of environment both man-made and natural.
It reflects an appreciation for environmental protection in outer space and re-states the current world thinking on environmental matters and res communes nature of the outer space. In exploring and using the moon, state parties shall take measures to prevent the disruption of its environment whether by introducing adverse changes in such an environment, its harmful contamination through extra-terrestrial matter, or otherwise.[35]
It paves the way for monumental safeguards to protect the seas from contamination. It imposes a general duty upon states to protect the marine environment and contains a large number of provisions on the protection of the marine environment and prevention and control of marine pollution.[36]
It is popularly referred to as the “Earth Summit”. The Summit adopted two important conventions: Convention on Biological Diversity and Convention on Climate Change. The Bio-Diversity Convention concerns the conservation and sustainable use of all earth’s species and eco-systems. The Climate Convention aims to protect climate systems and prevents the adverse effects of climate change, i.e., change in the physical environment or biota resulting from changes which produce significant harmful effects on natural eco-systems. It is a tool toward-off global warming of the earth’s environment.
It is debatable,[38] whether the 1972 Liability Convention,[39] covers comprehensively all problems caused by nuclear powered satellites, particularly if it disintegrates and there is a consequential earth-bound scattering of debris, as had occurred with the Soviet nuclear powered satellites Cosmos 954 in 1978 and Cosmos 1402 in 1983.[40] There may be difficulties in locating all radioactive fragments, which unless de-activated can harm the environment because of radiation from the debris. A need was felt to regulate this aspect of harm to the environment by providing for the co-ordination of emergency action and de-activation measures.[41] Therefore, in 1986, two conventions were adopted : Convention On Early Notification of a Nuclear Accident and Convention on Assistance in Case of Nuclear Accident. Thus the Conventions were concluded as a reaction to the Chernobyl Nuclear reactor accident in 1986.
The Notification Convention enjoins state parties to provide information about nuclear accidents to other states that may be affected by radioactive pollution and to inform the IAEA about the accident. The Assistance Convention stresses on cooperation amongst state parties to limit the effects of a nuclear accident or radiological emergency upon life, property and environment.
Clause (1) of Art. 8 of the International Criminal Court deals with the jurisdiction of the Court in respect of war crimes. Clause (2) (b) of this Art. enumerates certain acts which mean “war crimes” for the purpose of the Statute. Now, under Art. 8(d) (2) (b) (iv) of the Statute, an international attack to cause wide-spread, long-term and severe damage to the natural environment (emphasis added) which is clearly excessive in relation to the concrete and direct overall military advantage is a war crime.
An examination of the conventional international law of environmental protection, as stated above, would exhibit certain scientific considerations or premises upon which it is founded. These may be stated as follows:[43]
(i) That the global eco-system is an inter-connected world-wide system. Any part of it is sensitive to disorders anywhere in the system.
(ii) That although the global eco-system has natural self-renewing qualities, the system is threatened by increasing number of humans, their rising expectations and numbers and types of pollution.
(iii) That the society must seek a stable relationship between itself and the basic biological systems upon which society is dependent i.e., forests, fisheries, croplands and grasslands which provide food and natural resources to society.
(iv) That the care for human environment is a common responsibility and therefore all elements of the society must act to minimise the known adverse impacts on the environment.
(v) That there is a value in protecting certain unique natural resources and certain significant accomplishments of the humanity solely because of their scientific, aesthetic or inspirational value.
The foregoing discussion amply demonstrates that there exists a definite body of customary and conventional international law in favour of environmental protection and control of environmental pollution.
The following analysis of the international law of armed conflict extends to the limitations on the types of weapons or methods of warfare that can be used as well as the limitations on the objects of these weapons and methods.
The early international customary and treaty law of war can be said to have an environmental protection character but it was never intended to be so by its creators. For example, treaties and customs limiting the use of poisons in war were established to avoid unnecessary sufferings to combatants and not out of concern for the residual effects of these poisons on the surrounding eco-systems. Nevertheless, due to humanity’s increased sensitivity to environmental matters, there is now an additional reason for adhering to such rules.
Chemical warfare means international employment of toxic gases, liquids or solids to produce casualities. The Hague Conventions of 1899 and 1907 on Laws and Customs of War on Land forbid the use of poison or poisoned weapons.[44] The 1925 Geneva Gas Protocol also forbids chemical warfare.[45]
The environmental impact of chemical warfare is particularly serious in cases of use of herbicides-chemical defoliants such as those used in the Vietnam war by U.S.A. to destroy enormous stretches of tropical jungle.[46]
It means military use of biological organisms or their toxic products to cause death, disability or damage to man, his domestic animals or crops.[47] The Geneva Gas Protocol of 1925 prevents the use of bacteriological methods of warfare.[48] The 1972 Bacteriological Convention supplemented by a Final Declaration adopted in 1986, makes possession and use of bacteriological weapons illegal. The 1972 Convention has been further expanded by the new Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction, 1993. The 1981 Convention on Inhuman Weapons also prohibits the use of toxic weapons and chemical weapons.[49] But there is, as yet, no customary international law against biological weapons.[50] If this form of warfare were used on a major scale in war, the environmental damage would be extensive. As with chemical weapons, the effect of biological weapons is indiscriminate.
Protection of cultural and historical heritage of the world is important for the spiritual survival of humanity. It is a means of conserving the natural resources of the environment by avoiding the need to re-build valuable real and personal property.
The 1899 and 1907 Hague Conventions on Land Warfare require all necessary steps to be taken during seizes and bombardments to protect cultural and historical landmarks and objects.[51]The 1907 Hague Convention Concerning Bombardment by naval forces in time of war and the 1923 Hague Rules of Air Warfare provide protection to cultural and historical objects.[52] The 1949 Geneva Convention (IV) to protect war victims prohibits destruction of public or private property.[53] Lastly, the 1954 International Convention for the Protection of Cultural Property in the Event of Armed Conflict provide measures of protection, against ravages of war for works of art, monuments and historic buildings.[54] Cultural and historical property is also protected by customary law against pillaging.[55]
Art. 54 of the Protocol I to the 1949 Geneva Conventions primarily seeks to protect the victims of war.[56] But it also has an environmentalist character, since the use of herbicides on crops or agricultural lands can cause not only starvation, but can also disturb the ecological system and contaminate ground and surface water used for drinking or irrigation.
Art. 55 of the Protocol I to the 1949 Geneva Conventions requires combatants to protect the natural environment against widespread, long-term and severe damage and prohibits means and methods of warfare which are intended or may be expected to cause such damage to the natural environment. Art. 55 thus, places a limit on the mindless maiming which normally accompanies war. Exactly what is that limit is not yet clear.
Like Art. 54, the limitation given in Art. 56 seeks to protect the victims of war. However, it has an environmentalist character because it seeks to prevent ecological damage from the release of a dangerous force. Art. 56 provides protection from the attack on dams, dikes, nuclear power stations and other works or installations containing dangerous forces, as the attack, if severe, would result in flooding or radioactivity which in turn would result in civilian losses. Thus, Arts. 54, 55 and 56 as stated above and the Protocol I spell out significant new limits on the means by which war can be waged and these limits are based on environmental protection principles. Further, these limits reflect the desire of the world community to avoid the proliferation of environmentally devastating methods of warfare.
The 1977 Environmental Modification Convention prevents environmental modification techniques of waging war.[57] Art. I enjoins state parties not to engage in military or any other hostile use of environmental modification techniques, having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other state party. Environmental modification includes deliberate manipulation of natural process-the dynamics, composition or structure of the earth including its biota, lithosphere, hydrosphere, and atmosphere or outer space. The most potential environmental modification technique that human ingenuity has devised is the nuclear weapon. By seeding cumulus clouds with silver and lead iodides, the U.S. tried to manipulate rainfall for military purposes. It is uncertain whether these efforts to manipulate the environment were effective. Nevertheless, it has been concluded that extensive and successful cloud seeding can result in flooding and erosion, disruption of wild life and plant life and the presence of silver and iodide in the food chain.[58]
In the absence of an Environmental Modification Convention, environmental modification as a means of warfare would be permissible if military necessity existed. This Convention however, takes away this justification for the state parties to it in relation to each other.
Thus it can be said that the international law of armed conflict has aspects which reflect its concern for environmental protection. For example, Art. 55 of the Protocol I limits widespread long-term and severe damage to the environment. The primary purpose of this limitation is to protect the environment and its secondary purpose is to limit the destruction caused by war. Secondly, the laws of war use environmental protection law to strengthen the pre-existing limitations on armed conflicts. For example, Art. 56 of Protocol I prohibits destruction of works and installations containing dangerous forces. This limitation serves the primary purpose of reducing losses caused by war and, its secondary purpose is to benefit the environment.
(i) Necessity justifies war, i.e.., the maintenance of public order legitimises the use of force.
(ii) Humanity requires actions always for man’s good. It supports the use of war to maintain public order as well as limits the violence which is naturally generated by war.
The above two principles collectively form the principle of humanitarian law that respect for individual and his well being shall be ensured as far as it is compatible with public order and with military exigencies during war.[59]
(iii) Belligerents do not have unlimited choice of means to inflict damage on their adversaries out of proportion (principle of proportionality). This principle of proportionality is satisfied when the principle of military necessity is satisfied.
(i) Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. Civilisation is rooted in nature; every form of life is unique warranting respect regardless of its worth to man.[60]
The concept that humanity is a part of, and dependent on, nature and its environment is because of the realisation that society may simply not survive unless there is a stable relationship between ourselves and the natural systems that support us.
(ii) The lesser the intrusion on the environment, the better it is whether it is cutting of forests or dumping of hazardous wastes. Curtailing the exploitation of the environment is viewed as the best means to ensure the survival of humanity. But, at the same time, the concept of inevitability of some exploitation is also recognised. After all, the survival of mankind is also dependent on its ability to use natural resources for its sustenance.
In essence, the rationality of the law of environmental protection is to practice environmental ethic when purity of the environment is at risk. This ethic acknowledges that some degradation is inevitable but that can be managed to minimise the harm it causes to the environment.
There is much that the two legal regimes share, i.e., they have a common basis in practice and philosophy.
(i) Both accept the inevitability of certain events. Law of armed conflict accepts war for it allows restoration of public order and law of environmental protection accepts intelligent exploitation of environment for it allows survival of society.
(ii) Both attempt to limit their destructive natures. Laws of war limit war in the cause of humanity allowing devastation to occur only when justified by military necessity. Environmental protection law limits the exploitation of environment in the cause of nature to which humanity owes its existence and allows devastation to occur only when environmental ethic is satisfied.
(iii) Both seek to protect humanity from needless suffering and extinction, law of armed conflict seeks this directly by controlling the way war is waged, while law of environmental protection seeks it indirectly by protecting the environment upon which man depends.
(iv) Both have the principle of conservation as their philosophical base. In the law of armed conflict this principle seeks to conserve military forces of the belligerents and to conserve the surroundings of the battlefield from senseless destruction. In the law of environmental protection the conservation is more straight forward as it seeks to protect the environment from mindless exploitation.
The law of environmental protection can be useful in articulating the environmental protection aspects of the law of the armed conflict. For example :
(i) Objects Indispensable to the Survival of the Civilian Population
Art. 54, Protocol I, describes typical indispensable objects for the survival of the civilian population. Two things must be considered to comply with this Article, when planning military operations. Firstly: Toxic pollution of the food chain, as the effects of discharges of hazardous wastes into the eco-system are now well-known.[61] Therefore, care must be taken to prevent pollution of the sources of food of the local population. For example, in the realm of naval warfare, this might require careful target selection so as to ensure that the cargo of a vessel does not pollute the waters in which it sinks (particularly bulk oil carriers).
Secondly: Aquifers : They are underground natural water bearing rock structures extremely important to the environment. They provide drinking water used in private and commercial wells, irrigation water for agricultural purposes etc. Aquifers are vulnerable to depletion by excessive human demands[62] and contamination by hazardous substances through soil percolation. Once contaminated, underground water sources are difficult to clean. Thus, law of armed conflict needs to consider the impact of military operations on aquifers as they are indispensable objects to the survival of the civilian population.
(ii) Protection of the Natural Environment
Art. 35 (3) and Art. 55 of Protocol I are perhaps the most important environmental protection aspects of the laws of war and require significant consideration of the environmental impact of military weapons and methods during hostilities. The causing of widespread, long-term, severe damage by belligerents would be defensible under the doctrine of military necessity. But the military necessity would have to be something similar to self-defence. Mere denial of ground cover to the enemy is not a military necessity.[63] In cases of mass destruction, the question to be examined is: whether military necessity could be a defence to the destruction caused ? In the absence of a “defence of military necessity”, Protocol I would hold a belligerent criminally liable for causing extensive damage.[64]
The ICJ in the Nuclear Weapons case did not consider that the environmental treaties and norms could have intended to deprive a state of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, states must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for environment is one of the elements that go into assessing whether an action is in conformity with the principles of necessity and proportionality.[65] This approach is supported by the terms of the Rio Declaration which provides :
“Warfare is internally destructive of sustainable development. States, therefore, shall respect international law providing protection for the environment in terms of armed conflict and cooperate in its further development as necessary”.
(iii) Works and Installations Containing Dangerous Forces
The international community has witnessed painful lessons about the destructive potential of industrial facilities.[66] Applying the environmental lessons of these events to Art. 56 of Protocol I, the list of “works and installations” not to be attacked should be enlarged to include chemical plants.
(iv) Environmental Concerns
Destruction of the environment by excessive human demands and the harmful effects of the production, testing, stockpiling and use of military weapons is the major concern of the international community today[67]. Concern for the environment and scarcity of natural resources might cause or justify future wars[68]. This could result, if a state tries to seize the natural resources of another or in case of “ecological aggression” in which one state intentionally or negligently pollutes another state’s environment. Many writers believe that the major threat to world security in the future will be the deterioration of biological systems as the population continues to expand. Concern for the environment, could lead to future armed conflicts[69].
As discussed above, environmental protection law can be of great help in interpreting the laws of war. In fact law of armed conflict and law of environmental protection are inter-related topics of growing importance.
Law of armed conflict and law of environmental protection are closely related topics of growing concern to the international community. Their close relationship and common rational basis creates a need to use environmental principles and experiences in interpreting the environmental aspects of the laws of war that relate to environmental damage during war and prohibit the manipulation of the environment for hostile purposes.
Environmental warfare has been used throughout the history. However, the trend over the years has been the tendency to cause greater destruction to the environment than ever before. Munitions have been used against larger and ill-defeated target areas, resulting in high levels of environmental damage.[70]
It is because of this environmentally destructive trend in modern warfare and the development of technology capable of even greater destruction that the law of armed conflict has adopted environmental protection principles. Today, under customary as well as conventional international law of warfare the importance of preserving environment has finally been recognised.
Consequently, the selection of military weapons, methods and objects of attack should also be based on ecological considerations, e.g., impact on nature, destruction of natural balance, and introduction of irreversible processes.
Revised and updated version of the paper presented at the Seminar on International Humanitarian Law and Its Different Dimensions Relevant to Contemporary Realities, Organised by the ICRC and the Indian Society of International Law, New Delhi, 12-13 November 1999.
[*] Professor, Law School, Banaras Hindu University, Varanasi.
[1] The essential purpose of the laws of war is to humanise the use of force in war, i.e., to reduce the sufferings of individuals and to circumscribe the area within which the savagery of armed conflict is permissible. For this humanitarian reason, they are sometimes known as “Humanitarian Law of War” or “Rules of Humanitarian Warfare”.
[2] Bernard K. Schafer, “The Relationship Between the International Laws of Armed Conflict and Environmental Protections. The Need to Revaluate what Types of Conduct are Permissible During Hostilities” California Western International Law Journal, vol. 19 (1989), p. 287.
[3] For example: use of chemical warfare agents in World War I; nuclear bombing of Hiroshima and Nagasaki in World War II which caused devastation of innumerable eco-systems; employment of bombing and chemical techniques which resulted in massive disruption of natural and human ecologies. Stockholm International Peace Research Institute, “Warfare in a Fragile World : Military Impact on the Human Environment”, (SIPRI, Sweden,1989) pp. 15-19.
[4] Stockholm International Peace Research Institute, “Ecological Consequences of the Second Indo-China War”, (SIPRI, 1976), p. 55. Today humanity is capable of causing even greater damage in future armed conflicts. Some of the far-reaching harms that might result from sophisticated attacks have been assumed thus : nuclear weapons and its new generations could be used to divert the flight of asteroids to strike enemy territory and to cause earthquakes, tidal waves and destruction of dams and dikes; ‘Windows” could be opened in the earth’s ozone layer to allow injurious ultraviolet radiation to penetrate; weather control could create landslides and avalanches; with incredible accuracy of computer and laser-guided ammunitions, attacks on merchant ships (particularly oil super tankers) could make oceans a particularly contaminated region; lasers might be used to stimulate temperatures and pressures.
[5] For example, targeting civilians has today become a strategic objective. Times of India, New Delhi, 26 March, 27 March and 19 September 1999.
Russian Troops are bracing for a decisive attack on Grozny (Chechan Capital). The Army Command in Moscow has issued an ultimatum to the civilians in Grozny to vacate the city otherwise they would be treated as terrorists and dealt with accordingly. An unknown number of civilians remain trapped in Grozny. The people of Chechnya are in a terrible position, beleaguered by Paramilitary groups and terrorists on one hand, and the Russian offensive, on the other. Times of India (Lucknow and New Delhi), Dec. 8, 1999, pp.1 and 16 respectively.
This would leave many of the city’s most vulnerable residents open to military attack. This means there is a threat to the lives of the old, the infirm, the injured people and other innocent civilians who simply can not leave or are too scared to leave their homes. So, innocent civilians will bear the brunt of this war. An all-out attack would risk an appalling increase in civilian causalities and serious damage to the infrastructure of the city.
According to a study by UNICEF, children are the main sufferers in armed conflicts. Times of India, New Delhi, 27 September1999, p. 12.
[6] Hackworth, Digest of International law (1940-44), vol. II, p. 344; Also see American Journal of International Law, vol. 35 (1941), pp. 684-736.
[7] R.A. Malviya, “Environmental Pollution and Its Control Under International Law”, ( 1987), p. 145.
[8] ICJ Reports (1949), p. 18.
[9] Laylin and Bianchi, “The Role of Adjudication in International River Disputes; The Lake Lanoux Case”, American Journal of International Law, vol. 53 (1959), p. 30; Also see, A.P. Lester, “River Pollution in International law”, American Journal of International Law, vol. 57 (1963), pp. 828-853.
[10] Whiteman, Digest of International Law, pp. 256-58.
[11] ILM, vol. 18 (1979) p.899; Also see Stephen Grove, “Cosmos 954: Issues of Law and Policy”, Journal of Space Law, vol. 6 (1978), pp. 137-146.
[12] The ICJ Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons of July 8, 1996, has been reproduced in Indian Journal of International Law, vol. 37 (1997) pp. 282-325.
[13] See, Advisory Opinion of 8 July, 1996,ICJ Reports (1996), para 83, at p. 258.
[14] Ibid., p. 496.
[15] Ibid.
[16] Ibid., p. 497.
[17] Note 13, para 78 at p. 257.
[18] Ibid., Para, 79.
[19] Ibid., Para, 78.
[20] ICJ Reports, (1996), Para 29, pp. 241-242.
[21] Ibid., Para, 31, at p. 242..
[22] The present author fully agrees with the submission made earlier by Professor Mani that in terms of consensual definition of jus cogens in Art. 53 of the 1969 Vienna Convention on the Law of Treaties and the observations of the ICJ in the Nuclear Weapons case, “the prohibition of means and methods of warfare causing wide-spread, long-term and severe environmental damage” could be considered to be Jus Cogens of humanitarian law. V.S. Mani, “The International Court and the Humanitarian Law of Armed Conflicts”, Indian Journal of International Law, vol. 39 (1999), p. 39.
[23] Stockholm Declaration of the U.N. Conference on Human Environment, June 1972, U.N.Doc. A/Conf. 48/14; ILM, vol. 11 (1972), p. 1416. In particular principles 6, 7, 21, 22, 24 and 25.
[24] Yearbook of U.N., 1974, p. 407 (Article 30).
[25] Yearbook of U.N., 1982, p. 1023, (G.A. Resolution. 37).
[26] Mc. Caffrey, “The Work of the I.L.C. Relating to Environment”, Ecology Law Quarterly, vol. 11 (1983), p. 210.
[27] OECD Doc A (74), 1974, p. 47, and C(74), 1974, p. 224.
[28] Schafer, note 2, pp. 299-300.
[29] 402 U.N.T.S. p. 71 Arts. 1-2.
[30] 480 U.N.T.S. 43, Preamble.
[31] 610 U.N.T.S. 205, Art. 9.
[32] ILM, vol. 9 (1970), p.45.
[33] ILM, vol. 11 (1972), p. 1291.
[34] See Articles. 1, 2 and 4 of Convention, ILM, vol. 11 (1972), p. 1358.
[35] Article 7 of the Agreement, ILM, vol. 18 (1979), p. 1434.
[36] ILM, vol. 21 (1982), p. 1261.
[37] ILM, vol. 25 (1986), pp. 1370-1377.
[38] S.K. Verma, An Introduction to Public International Law, ( 1998 ), p. 139.
[39] Convention on Liability for Damage Caused by Objects launched into Outer Space, ILM, vol. 10 (1971), p. 965. Also see Foster, Canadian Year Book of Inernational Law, vol. 10 (1972), p. 137.
[40] Alexander F. Cohen, “Cosmos 954 and the International Law of Satellite Accidents”. Yale Journal of International Law, vol. 10 (1984), p. 78.
[41] In 1978 COPUOS (Committee on the Peaceful Uses of Outer Space) meeting, a 15-Power Working Paper suggested that wilful disregard by launching state of a patent risk of grave injury to the environment of the earth amounts to crime. S.K. Verma, note 38 p. 139. The Convention on Nuclear Safety, 1994, adopted by IAEA, imposes a responsibility on national states having jurisdiction over a nuclear installation for nuclear safety. ILM vol. 33 (1994), p. 1514.
[42] U.N. Doc. A.CONF. 183/10, 17 July, 1998. The Court’s Statute is reproduced in Indian Journal of International Law, vol. 39 (1999) pp. 125-225.
[43] Schafer, note 2, pp. 298-99.
[44] Articles. 23, 36. Reprinted in D. Schindler and J. Toman, “The Laws of Armed Conflict; A Collection of Conventions, Resolutions and Other Documents, (1981) p. 63.
[45] Schindler, note 44, p. 109.
[46] See, W.J. Fenrick “New Developments in the Law Concerning the Use of Conventional Weapons in Armed Conflict”, Canadian Year Book of Inernational Law, vol. ( 1981), pp. 247-48.
[47] Biological Weapons use Toxins — Biologically created poisons which are not technically within the reach of chemical warfare provisions noted earlier.
[48] Schindler, note 44, p. 110.
[49] The 1981 Convention on Prohibitions or Restrictions on the Use of Certain Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. See S.K. Verma, note 38, p. 386.
[50] Schafer, note 2, p. 303; Mallison, “The Laws of War and the Juridical Control of Weapons of Mass Destruction in General and Limited Wars”, George Washington Law Review, vol. 36 (1967), pp. 308-09.
[51] Article 27, note 44.
[52] Schindler, note 44, p. 723, 147.
[53] Schindler, note 44, p. 427, Article 53.
[54] 249 UNTS 242, Articles 4(1).
[55] The trials of war criminals after World War II provide proof of such a custom. In some of the war crime trials, the accused were convicted of crimes against cultural property. U.N. War Crimes Commission, Law Reports of Trials of War Criminals, (1949).
[56] In the context of international law of environmental protection, Protocol I to the 1949 Geneva Conventions is a reaction to excesses committed in Vietnam war. Various methods used by the U.S. during the war caused an excessively adverse impact on the environment of Indo-China. See Schafer, note 2, p. 311.
[57] Like Protocol I, the 1977 Environmental Modification Convention was a reaction to the activities of the U.S. during the Vietnam war.
[58] SIPRI, note 3, p. 55 Rainfall is manipulated to destroy enemy lines of communication and supply, extend the rainy season and make enemy offensive operations difficult, cause disruptive floods, redirect enemy manpower in dealing with the damage caused by the excessive rain, etc.
[59] J. Pictet, Humanitarian Law and the Protection of War Victims, (1975), pp. 28-29.
[60] World Charter for Nature, Yearbook of U.N., 1982, p. 1023. (G A. Resolution 37).
[61] “Minamata Disease” in Japan. W.W. Murdock (ed.), Environment Resources, Pollution and Society, (1972), pp. 245.
[62] The world may witness “resource wars” if use of natural resources goes unchecked, warn environmentalists. Times of India, New Delhi, 16 August 1999 p. 8. The U.N. Report on the State of World Population paints a grim scenario of depleting resources in developing countries because of increase in human numbers. It warns that in the Sub-Saharan Africa and parts of the Indian sub-continent, which together contain about a third of the world’s population, aquifers are getting depleted and so is the per capita cropland. Times of India, New Delhi, 23 September 1999, p.1.
[63] Schafer, note 2, p. 321.
[64] Ibid.
[65] note 13, para 30, p. 242.
[66] Leakage from a chemical plant in Seveso, Italy (1976); leakage from a pesticide plant in Bhopal, India (1984), fire at a chemical warehouse near Basel, Switzerland (1986). See, Schafer, note 2, p. 332. Radioactive fallout from nuclear reactor explosion incident at Chernobyl. USSR, note 38, pp. 256. Nuclear radiation was 10,000 times above the normal level from the Tokaimura nuclear reactor in Japan (1999) - worst nuclear accident since Hiroshima and Nagasaki. Times of India , New Delhi, 2 October 1999, p.1 and 14.
[67] J. Robinson, “The Effects of Weapons on Eco-Systems”, (1979), p. vii.
[68] SIPRI, note 3, p. 185.
[69] Brown “Redefining National Security”, EPA Jl June 1978, p. 38; Also see Lee, “Helping Global Clean-up”, ibid, p. 23.
[70] Schafer, note 2, p. 324.
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