Introduction

This chapter explores civil liability doctrines in United States law relevant to an international liability regime for war-caused environmental damage. Those doctrines come from two separate but related fields: the common law of torts and the statutory law of environmental protection. To varying degrees they both shift the burden of environmental damage from innocent or random victims to those engaging in or benefiting from the damage-causing activity. In environmental law circles, this is often called the “polluter pays” principle. Clearly, neither set of doctrines was designed to provide compensation for war-caused environmental damages. Moreover, their use for that purpose would have to contend with countervailing doctrines of sovereign immunity and justification. Nevertheless, the principles behind the doctrines – deterrence of damage-causing conduct, provision of fairness between those damaged and those damaging, and maximization of public wealth – may be appropriate as a starting point from which to devise such an international regime. A treaty establishing an international regime could deal with the sovereign immunity and justification defenses.

While principles behind tort and pollution control legal doctrines may be relevant underpinnings for an international compensation regime for war-caused injury, this chapter concludes that another concept developed in United States environmental statutes provides the most practical alternative: a remediation fund derived from assessments on weapons, ammunition, and other war material. Such assessments could be on a sliding scale, with proportionately higher charges on weapons with the greatest potential to damage the environment. Such a mechanism would avoid much of the fact-finding inherent in most tort law, the regulatory rigidity of pollution control law, and the high transaction costs of both regimes.

Introduction

Environmental and public health consequences of war recently have received increased attention in light of circumstances surrounding the 1990–91 Gulf War. During the conflict, which began on August 2, 1990, Iraq demonstrated its willingness to use environmental destruction as a weapon of war by setting fire to several hundred oil wells and releasing millions of gallons of oil into the Persian Gulf. The fires burned for approximately ten months before they could be extinguished, resulting in smoke clouds that traveled as far as Pakistan and black rains that fell in several countries of the Middle East. Overall, the damage represents one of the most serious environmental catastrophes in recorded history, with adverse effects extending to human health, agricultural productivity, and to the ecosystem generally.

This chapter surveys available methods of estimating monetary damages to public health that can arise from environmental destruction occurring during wartime. These methods maybe applied to evaluating a subset of environmental claims arising from the 1990–91 Gulf War. Kuwait has submitted five claims to the United Nations Compensation Commission concerning: (1) damage to groundwater resources; (2) damage related to the formation of lakes of oil in the desert; (3) damage to terrestrial resources; (4) damage to marine and coastal resources; and (5) damage to public health. Claims for public health damages seek to recover US $1,457,761,466 in estimated present and future costs of injuries and diseases inflicted on Kuwait's citizens as a result of Iraqi aggression.

For as long as war has devastated the environment, moral and religious codes have sought to prevent or minimize the environmental impacts of wartime actions. Even in biblical times, Deuteronomy commanded:

Although this is an anthropocentric perspective, applying only to the extent that environmental damage clearly harms society, it has been the basis for much of the Judeo-Christian scholarship in the area, including the development of the principle of bal tashchit, a rabbinical interpretation enjoining environmental waste and destruction.

Similarly, the Qur'an enjoins Muslims from harming trees in a jihad, a Muslim holy war. In fact, some Muslim armies included an officer who had the specific duty to ensure that “trees are not burnt, nor unjustifiably pulled out and that women, children, the elderly and unoffending priests or monks should not be harmed. He also ascertains that water and medicine are given to the prisoners of war.”

Introduction

BACKGROUND

The Arabian or Persian Gulf forms an arm of the Indian Ocean extending into the Arabian Peninsula, an area that constitutes the inner part of the Regional Organization for the Protection of the Marine Environment (ROPME) Sea Area – the “RSA.” This new term was coined to achieve unanimity in signing the 1978 Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution. The ROPME Sea Area also includes the Gulf of Oman and the Iranian and Omani waters of the Arabian Sea. This chapter uses the terms “Gulf” and “ROPME Sea Area,” or “RSA,” interchangeably.

The ROPME Sea Area is a relatively small, flooded valley-estuary with a surface area of 240,000 km2. It is approximately 1,000 km in length and 200–300 km in width, narrowing to only 54 km at the Strait of Hormuz. It is generally shallow, mostly less than 60 m deep, with an average depth of 35 m, but increasing to 100 m near the Strait of Hormuz. The western part of the RSA is very shallow (less than 5 m), with tidal flats extending up to 5 km. The bottom topography is generally featureless with mostly soft sediments. It is muddy in the northern and northwestern parts and sandy along the southern section, reflecting the largely biogenic origin of sediments in the area (Figure 13.1).

The intense sunlight and shallowness of the water makes the RSA highly productive, which has encouraged the establishment of well-developed shrimp and fin-fish fisheries in the area.

Introduction

Scientific assessment of the environmental impacts of wrongful actions forms the evidentiary basis for any case – wartime or peacetime, civil or criminal – by establishing the nature and extent of the damages. Assessment of impacts also provides a basis for rehabilitation. The methods for evaluating damages and appropriate restoration measures are as numerous and varied as the impacts themselves. Experience has shown, however, that the reliability of most of these methods is problematic at best. The chapters in this section provide an overview of the various ecological consequences of wars, relying primarily on examples from the 1990–91 Gulf War. They also provide valuable insight into the issues surrounding scientific methods for predicting and assessing these consequences.

Most impacts of war are multi-faceted. Aerial bombardment, for example, obviously has dire effects on terrestrial ecosystems. However, it also often destroys civilian infrastructure, such as sewage treatment facilities and electrical plants, which is vital to maintaining clean water and air. Classifying such impacts can be extremely difficult. In his chapter, Asit Biswas categorizes the various impacts he addresses by media – water, land, air, and other natural resources – although he acknowledges that such boundaries are necessarily somewhat artificial. Similarly, Samira Omar et al. and Mahmood Abdulraheem focus their chapters on the impacts of the 1990–91 Gulf War on the terrestrial and marine resources of Kuwait, respectively. Finally, Jeffrey McNeely discusses how wartime impacts affect biodiversity. In the end, a very intricate overall picture emerges, one that reflects the complex nature of war itself.

Introduction

In view of the heated debate about the status and effectiveness of international law-of-war treaties for protecting the environment during armed conflict, it is prudent also to examine norms, rules, and enforcement mechanisms derived from other legal regimes. The environmental protection systems that have had the luxury of evolving under peacetime conditions generally are more nuanced and tailored to their subject matter than the sporadic attempts to incorporate environmental concerns into the law of war. While they of course do not address the extreme circumstances encountered in full-scale armed conflict, many peacetime environmental treaties and domestic statutes have state-of-the-art provisions for deterring and remedying the same kinds of impacts – for example, catastrophic oil spills or deforestation – commonly found during wartime. Thus, at least where it is possible to consider these impacts in isolation, environmental and other peacetime laws may prove useful for wartime environmental protection, either through their direct application or through analogizing and adapting them into the law-of-war regime.

One large question, alluded to in the previous section, is whether global and international environmental treaties such as the Framework Convention on Climate Change or the Convention on Biological Diversity remain in effect during armed conflict. If it could be shown, for example, that oil well fires had led to excessive emissions of greenhouse gases, that could serve as an additional basis for holding the state that caused the fires responsible and liable.

Introduction

The “peace dividend” expected by many to result from the end of the Cold War has not paid off in terms of reduced violent conflict. Indeed, the recent nuclear weapons tests by India and Pakistan demonstrate the continuing potential for highly destructive war. Some countries are facing generalized lawlessness and banditry, by marauding ex-soldiers in several African nations, drug cartels in some parts of Latin America, and organized crime in various parts of the former Soviet Union. Tensions in the Middle East, parts of Africa, Central America, Ireland, Southeastern Europe, and Indonesia are further indications that war is a continuing fact of modern life.

Despite these widespread threats to national sovereignty, governments are obliged under Article 1 of the 1992 Convention on Biological Diversity to conserve their own biodiversity, and under Article 3 to ensure that activities within their jurisdiction or control do not cause damage to the biodiversity of other states. Any negative impacts of war on biodiversity are clearly contrary to this international agreement, though this constraint cannot be expected to carry much weight with belligerent powers; NATO apparently did not consider biodiversity in their bombing plans over Kosovo, judging from the results. But what, specifically, are the impacts of war on biodiversity? This chapter attempts to identify some of the key issues in preparing a balanced assessment of this question.

Introduction

When warfare was envisaged as Napoleonic battalions or German Panzer units traversing Europe, no serious conceptual difficulties attended the detection and identification of environmental consequences. Even in the modern era, battle scars inflicted by artillery and gunfire raise only trifling new problems in this regard. And when considering nuclear weapons, it is ironic that an exemplary virtue of their use would be the ease of detecting at least the direct environmental damage from their detonation.

But a more insidious form of warfare is moving into a preeminent role on the international stage: chemical and biological weapons (CBW). Chemical weapons may be defined primarily as nerve agents, which are closely related to toxins – inanimate poisonous substances produced by living organisms. Biological weapons may be defined as living organisms that infect their victims, causing incapacitation and often death; some can spread to other living entities, even those not initially attacked. Unlike ordnance, these weapons are dispersed as a difficult-to-detect aerosol; moreover, unlike ordnance, the injurious effects of these weapons typically linger far beyond their initial use. Measured by their capability to contaminate soil and water and hence despoil an ecosystem for a prolonged period, the environmental harms caused by CBW exceed the damage caused by most explosive munitions. In terms of assigning responsibility, the invisibility of chemical or biological agents, combined with their long-lasting and noxious effects, complicates the task of building a legal regime to assess those harms.

Introduction

Wars often involve major health consequences for thousands of individuals. Those affected include the combatants from the countries engaged in the conflict, armed forces from other nations, and citizenry. These groups also could include individuals far removed from the conflict if, for example, chemical exposures from the combat situation led to genetic damage that harmed the offspring of a combatant.

This chapter addresses how adverse consequences resulting from war should be valued from the standpoint of compensation. In undertaking this analysis, I will make the assumption that compensation is appropriate. In some instances involving war, providing compensation may strike one as being quite odd. For example, one would not think that a nation that launched an aggression would seek financial compensation for the injuries to the soldiers who were killed in such a conflict. What I will assume, then, is that there has been a determination that compensation is warranted, and the remaining issue is how such compensation should be set.

This subject in a generic sense has been the focus of a considerable literature in economics. How one should set compensation will depend in large part on the purpose one is trying to achieve through such compensation. In particular, is the intent to insure the losses of the accident victim or to provide deterrence? The principal message of this chapter is that the standard objective in compensatory legal contexts should be an insurance function so that compensation for economic loss should be the guiding principle determining the value of the adverse health consequences of wars. The valuation of health outcomes is not a straightforward proposition.

Introduction

Concern over the fate of the environment in war has a long history. Deuteronomy forbade the destruction of fruit trees during siege of an enemy's city. In On the Law of War and Peace, Grotius (in a chapter on “Moderation in Devastating a Country, and Similar Matters”) did his best to marshal some other early authority for sheltering the environment from hostile action. He summons Philo, the first-century Jewish philosopher, who chided: “Why vent anger on inanimate things, which are themselves kindly, and bring forth fruit? Do trees, like the men who are your enemies, display signs of hostility, so that for the things they do or threaten to do, they must be uprooted?”

Nonetheless, Grotius was well aware that such expressions of concern were exceptional and probably influenced conduct little. Indeed, at one point Grotius, anticipating von Clausewitz, appears to acknowledge that realpolitik rendered devastation acceptable “if by it the enemy is reduced quickly to suing for peace.” In the last analysis, the demands of military and political necessity were hard to resist, then as now.

In fact, while Grotius did not suppress his sympathy with farmers and beasts and fields, he rested his appeal for moderation less on environmental consciousness than on prudent self-interest: the kings of Macedon, he reminded his readers, “were lenient so the realm might be the richer.” Deuteronomy's injunction against cutting trees extended only to fruit trees, and on the distinctly homocentric ground that “the tree of the field is man's life.”

Two developments have forced us to reconsider our posture towards the environment in wartime. The first is the rise of environmentalism

This book provides a comparative analysis of environmental regulation in multi-jurisdictional legal and political systems, focusing on three important examples: the United States, the European Union, and the international community. These systems are, of course, quite different in many ways, political, institutional, legal, cultural, and economic. Yet they share certain fundamental structural similarities and must deal with similar problems in instituting measures to protect the environment while simultaneously promoting economic growth. This book develops a linked series of conceptual frameworks for understanding and evaluating the ways in which these three multi-jurisdictional systems are dealing with this challenge, drawing on the insights afforded by comparative analysis of their similarities and differences.

Each of these systems must deal with environmental interdependencies that transcend their constituent jurisdictions – states in the United States, the Member States in the European Union, and the nations of the international community. Pollution often crosses local borders, in some cases creating regional problems, such as acid deposition, ozone-type smog, and pollution of shared water bodies. Other transjurisdictional environmental problems are global, including stratospheric ozone depletion and climate change. Wastes are shipped across borders. There is a global stake in preservation of biodiversity, regardless of the jurisdiction where it is located. Yet, despite the maxim, held by certain ecologists and environmentalists, that everything is connected to everything else, some environmental problems, such as municipal waste disposal, many forms of pollution and resource development, and drinking water quality, remain localized in their effects on health and the environment.

General remarks

Professor Stewart presents a very detailed and refined theoretical analysis of the pros and cons of (mainly market-based) economic incentive systems for environmental protection (EIS) with which, by and large, I agree on theoretical grounds, and to which adding some nuances in this short comment would not make much sense. However, since the United States has pioneered certain EIS, especially transferable permit systems of various kinds (lead in gasoline program, emissions trading policy, transferable permit program under the Clean Air Act Amendments, RECLAIM program in Southern California, and Illinois VOM program), I would have expected a more systematic treatment of the practical problems and difficulties that have arisen with respect to these programs.

One problem analyzed theoretically by Professor Stewart in various contexts but perhaps not sufficiently emphasized is that of regionally disproportionate distribution of pollution. “Hot spots” may arise where a certain concentration of emissions presents either an unacceptable risk or – which is true of carcinogens where safe concentration levels cannot be determined – an undesirable risk to individuals. This is by no means an atypical but, rather, the typical situation in air pollution (except for greenhouse gases and ozone depletion) and water pollution (even regarding nutrients, since eutrophication largely depends on the varying physical and physicochemical characteristics of water courses and lakes). Therefore the American experience in coping with this problem (the Clean Air Act) is extremely important if one envisages spreading the message of EIS.

This chapter examines three types of models for centralized risk regulation at different stages of their development: the first mature (the US model), the second maturing (the EU model), and the last in the early stages of centralization (the GATT/WTO and NAFTA models). The study focuses on questions of institutional design. It draws upon the discussion of environmental, health, and safety risk regulation in the United States presented in Breaking the Vicious Circle, a book by Stephen Breyer, co-author of this chapter. The chapter reiterates the book's central, apparently paradoxical thesis, as developed in the US institutional context: that one can more rationally deal with problems of risk regulation – including serious problems of overregulation – by granting more, not less, discretionary power to an administrative bureaucracy. It then asks those willing to accept this thesis (even if they do so only hypothetically) to consider its applicability and ramifications in other, non-US institutional settings. To this end, the chapter first examines its potential consequences for the European Union. Is it desirable to give EU administrators more authority and discretion in the risk regulatory process? Is it politically feasible to do so? What might the result be? We hope that this essay, though it rests in substantial part upon American experience, will stimulate thought on these questions in Europe. Continuing, the chapter addresses these issues in the context of multilateral agreements – in particular international trade agreements such as GATT/WTO and NAFTA – and international dispute resolution mechanisms and their impact on the development and implementation of risk regulation policies.

Pollution due to human activities on a local scale, of air, water, or land, has been around for a very long time. What is relatively new and what is giving rise to much current environmental concern is the existence of human activities which lead to pollution on the global scale – pollution emitted by one person locally that has global effects. One example is the release of small quantities of chemicals containing chlorine, such as chlorofluorocarbons (CFCs), that cause damage of global extent to the ozone layer in the stratosphere. Another example relates to emissions of “greenhouse gases” (GHG) such as carbon dioxide that spread through the whole atmosphere and result in climate change with its potential deleterious effects. The existence of global environmental problems requires solutions that are organized on a global scale. Scientists and policymakers worldwide have to respond to this imperative and find appropriate ways of meeting the challenge. In this chapter I address in particular the issue of human-induced climate change and describe the role which scientists have played in assisting in the determination of policy.

Formation of the Intergovernmental Panel on Climate Change

During the 1980s it began to be recognized that the increasing use of fossil fuels was resulting in a substantial increase in the concentrations in the atmosphere of the GHG, carbon dioxide and methane. Estimates were made that the carbon dioxide concentration could double before the end of the twenty-first century.