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Legal protection of the environment during international armed conflict***

Published online by Cambridge University Press:  07 July 2009

Richard G. Tarasofsky
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Since the 1991 Gulf War, the challenge of protecting the environment during armed conflict has been high on the global agenda. Over the past two years there have been at least five major Meetings of Experts on the subject, the Sixth (Legal) Committee of the UN General Assembly (hereafter Sixth Committee) began deliberations on it, as has the UN General Assembly itself, and it was addressed at the UN Conference on Environment and Development (hereafter UNCED), ultimately forming part of the Rio de Janeiro Declaration on Environment and Development (hereafter Rio Declaration) and Agenda 21.

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Articles
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Netherlands Yearbook of International Law , Volume 24 , December 1993 , pp. 17 - 79
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Copyright © T.M.C. Asser Press 1993

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References

1. London Conference on A ‘Fifth Geneva’ Convention on the Protection of the Environment in Time of Armed Conflict, organized by the LSE Centre for Environmental Law and Policy, Greenpeace International, and Centre For Defence Studies, 3 June 1991, transcript of proceedings with commentary reprinted in Plant, G., Environmental Protection and the Law of War: A ‘Fifth Geneva Convention on the Protection of the Environment in Times of Armed Conflict (1992)Google Scholar; Ottawa Conference on The Use of the Environment as a Tool of Conventional Warfare (The Ottawa Conference), organized by the Canadian Government and the United Nations, 1–12 July 1991, its Chairman's Conclusions have been circulated in draft form to participants, but to date have not been published; Munich Consultation on the Law Concerning the Protection of the Environment in Times of Armed Conflict (The Munich Conference), organized by the International Council for Environmental Law and the IUCN Commission on Environmental Law, 13–15 December 1991, recommendations reproduced in 22 Environmental Policy and Law (1992) p. 63 et seq.; and a series of Meetings of the Experts on the Protection of the Environment in Time of Armed Conflict organized by the International Committee of the Red Cross (hereafter, ICRC), the first held on 27–29 April 1992, summary of proceedings reprinted in ICRC Report on the Work of the Meeting (hereafter, Report of the First ICRC Meeting) (1992), the second held in January 1993 and the final one scheduled for June 1993.

2. See e.g., UN Doc. A/C.6/46/SR. 18–20 and 43.

3. Most recently, see UN General Assembly Resolution 47/37 (UN Doc. A/47/591).

4. Principle 23: ‘Theenvironmentandnaturalresourcesofpeopleunderoppression, domination and occupation shall be protected.’

Principle 24: ‘Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development as necessary.’

Principle 25: ‘Peace, development and environmental protection are interdependent and indivisible.’ (UN Doc. A/CONF.151/26 (Vol. I)).

5. Par. 39.6 (a) ‘Measures in accordance with international law should be considered to address, in times of armed conflict, large-scale destruction of the environment that cannot be justified under international law …’

(UN Doc. A/CONF.151/26 (Vol. III)).

6. See Momtaz, D., ‘Les règles relatives à la protection de l'environment au cours des conflits armes à l'épreuve du conflit entre l'Irak et le Koweit’, Annuaire français de droit International (1991) p. 203, at p. 204Google Scholar for a historical overview of environmental warfare. The roots of a cultural norm which protects the environment in the context of war is traceable back to ancient times, with proscriptions on the destruction of orchards and the poisoningof wells, see Best, G., ‘The Historical Evolution of Cultural Norms Relating to War and the Environment’, in A, Westing, ed., Cultural Norms, War and the Environment (1988) p. 18, at p. 24 et seqGoogle Scholar. See also Britain's, Manual of Military Law (1884) Ch. XVI p. 294.Google Scholar

7. Law of War is used broadly in this article to encompass all aspects of military activity :jus ad bellum, being the law on the use of force in general, i.e., the legality of the military campaign as a whole; jus in bello, being the rules governing the waging of the conflict; and the legal framework of arms control. The focus of this article will be mainly, but not exclusively, on jus in bello and the law of arms control.

8. See e.g., Jordan's introduction to the topic in the Sixth Committee, UN Doc. A/C.6/46/SR. 18 (22 October 1991) p. 6 et seq.

9. Kiss, A. and Shelton, D., International Environmental Law (1991) at p. 16Google Scholar et seq. See Meron, T., Human Rights and Humanitarian Norms as Customary Law (1989) at p. 188 et seq.Google Scholar, for a survey of scholarly and judicial opinion on obligations erga omnes in general. In Barcelona Traction, ICJ Rep. (1970) at p. 32, the International Court of Justice described such obligations: ‘In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.’

In addition, Art. 19(3)(d) of the International Law Commission (hereafter, ILC) Draft Articles on State Responsibility deems an international crime to be committed when there is ‘a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas’, ILC (1976) Vol II, Part 2. (UN Doc. A/31/10) p. 95 et seq. In the context of armed conflict see the ILC's commentary on Art. 26 of the Draft Code of Crimes Against Peace and Security of Mankind, Report of ILC on the Work of its 43rd Session, GAOR 46th Session, Supp. No. 10 (UN Doc. A/46/10). Art. 26 attaches criminal responsibility to those who wilfully cause ‘widespread, long-term, and severe’ damage to the environment. See also Report of the First ICRC Meeting which concluded that a general interest exists in preserving the natural environment beyond that of the belligerents.

10. Best, G., Humanity in Warfare – The Modern History of the International Law of Armed Conflicts (1980) at pp. 1–2.Google Scholar

11. Cassese, A., International Law in a Divided World (1986) at para. 148.Google Scholar

12. See Meyer, M., ‘A Definition of “Environment”’Google Scholar, and Tolbert, D., ‘Definingthe “Environment”’Google Scholar, both in Plant, op. cit. n. 1, at p. 255 et seq.

13. 1125 UNTS 3.

14. CDDH/III/GT/35, of 11 March 1975.

15. In this essay, International Environmental Law refers to the bundle of rules that as a whole regulate the environment. It draws on sources of law that regulate maritime and atmospheric activities, conservation of natural resources and the protection of wildlife. See Birnie, P. and Boyle, A.E., International Law and the Environment (1992) at p. 1 et seqGoogle Scholar. on the use of this phrase and the definitional difficulties of the term ‘environment’.

16. 1 AJIL (1907) Supplement 95–96.

17. Fenrick, Col. W., ‘The Rule of Proportionality and Protocol I in Conventional Warfare’, 98 Military Law Review (1982) p. 91 at p. 93Google Scholar; Falk, R., ‘The Environmental Law of War’, in Plant, op. cit. n. 1, at p. 84Google Scholar; Roberts, A. and Guelff, R., eds., Documents on the Laws of War, 2nd edn. (1989) at p. 5.Google Scholar

18. Properly entitled, ‘Instructions for the Government of Armies of the United States in the Field’, this was an influential code of conduct for Union soldiers during the American Civil War. See particularly, Arts. XIV-XVI of the Lieber Code, reprinted in Friedman, L., The Law of War – A Documentary History (1972) at p. 158 et seq.Google Scholar

19. Dunbar, N.C.H., ‘Military Necessity in War Crimes Trials’, 22 BYIL (1952) at p. 144Google Scholar. See particularly, Arts. XIV-XVI of the Lieber Code.

20. Manual of Military Law, op. cit. n. 6, Ch. XVI, at p. 295.

21. Falk, op. cit. n. 17, at p. 83. It has been noted elsewhere, however, that one should not overstate the significance of the concession to humanity because the actual military value of such bullets is not significant.

22. Trial of Alfried Felix Alwyn Krupp Von Bohlen Und Halbach and eleven Others (hereafter, Krupp Trial), X Law Reports of Trials of War Criminals 69, at p. 138 et seq.

23. Trial of Wilhelm List and Others (hereafter, Hostages Trial), VIII Law Reports of Trials of War Criminals 34, at p. 69. The Preamble to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land (hereafter, 1907 Hague Convention IV), 9 UKTS (1910) Cd. 5030, provides some credence for this view when it states in its preamble that ‘… According to the views of the high contracting Parties, these provisions, the wording of [this convention] has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants …’ (emphasis added). Also, common Art. 1 of the Geneva Conventions of 12 August 1949 (Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS (1950) 31; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS (1950) 85; Geneva Convention III Relative to the Treatment of Prisoners of War, 75 UNTS (1950) 135; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (hereafter, 1949 Geneva Convention IV), 75 UNTS (1950) 287) require the parties to observe the conventions in all circumstances.

24. Annexed to the Convention (IV) Respecting the Laws and Customs of War on Land (hereafter, Hague Convention IV), 9 UKTS (1910) Cd. 5030.

25. See Hostages Trial, supra, n. 23.

26. ibid.

27. Krupp Trial, supra, n. 22.

28. Trial of von Leeb and thirteen others (hereafter, German High Command Trial), XII Law Reports of Trials of War Criminals 1, at p. 93 et seq.

29. Art. 6(b) of the 1945 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (hereafter, London Agreement), of 8 August 1945, 82 UNTS 279, declares the ‘wanton destruction of cities, towns, or villages, or devastation not justified by military necessity …’ to be a war crime. The provisions of the London Agreement were affirmed as principles of international law by UN General Assembly Resolution95 (I) (UN Doc. A/236 (1946) at p. 1144).

30. Roberts and Guelff, op. cit. n. 17, at p. 5.

31. Roberts and Guelff, ibid., point out that the principle also includes selection of methods, weaponry, and targetry with limits on geography and otherwise.

32. Meron, op. cit. n. 9, at p. 65, and authorities cited therein.

33. Art. 52(2).

34. 6 Papers Relating to the Treaty of Washington 52–57 (1874); VII Moore's International Law Digest (1906) pp. 693–694Google Scholar, referred to in the US Navy's Annotated Supplement to the Commander's Handbook on the Law of Naval Operations, NWP 9 (Rev.A)/FMFM 1–10 (1989) p. 8–3 et seq.

35. Of 18 October 1907, 13 UKTS (1910) Cd. 5117; 2 AJIL (1908) Supplement 146–53, and considered declaratory of customary international law (See US Navy, ibid., at p. 8–25).

36. Art. 2.

37. Of 18 October 1907, 12 UKTS (1910) Cd. 5116; 2 AJIL (1908) Supplement 138–45, and considered declaratory of customary international law (see Schwarzenberger, G., International Law as Applied by International Courts and Tribunals, Vol. II (1968) at p. 419).Google Scholar

38. Art. 2.

39. See text accompanying n. 12, supra, for further discussion of this difficulty.

40. See e.g., Grotius, , De Jure Ac Pacis (1625)Google Scholar Lib. III, Cap. IV, s. xvi, which states that it is contrary to the laws of nature to kill an enemy by poison.

41. Of 29 July 1899, 32 UKTS (1907) Cd. 3751.

42. Of 10 April 1981, 23 UK Misc. (1981) Cmnd. 8370; reprinted in 19 ILM (1980) 1523.

43. Shaw, M., ‘United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons’, 9 Review of International Studies (1981) p. 109, at p. 113.CrossRefGoogle Scholar

44. Case Nos. 2194 (wa) of 1955 and 4177 (wa) of 1957 (Tokyo District Court), 7 December 1963, reprinted in 8 Jap. Ann. of Int. Law (1964) at p. 212.

45. St. Petersburg Declaration; Hague Declaration 2; and the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (hereafter, Geneva Gas Protocol), of 17 June 1925, XCIV LNTS (1929) 65.

46. Shaw, loc. cit. n. 43.

47. Not everyone accepts that proportionality is a rule of customary international law – see e.g., negotiating history of Art. 51 of Additional Protocol I and particularly remarks of Rumania reprinted in Levie, H., Protection of War Victims: Protocol I to the Geneva Conventions (1980) at p. 123.Google Scholar

48. Fenrick, loc. cit. n. 17.

49. Higgins, R., General Course in Public International Law at the Hague Academy of International Law (1991).Google Scholar

50. Bothe, M., Partch, K. and Solf, W., New Rules for Victims of Armed Conflicts (1982) at p. 309.Google Scholar

51. See Fleck, D., ‘Legal and Policy Perspectives for the Protection of the Environment in Times of Armed Conflict’, in Fox, H. and Meyer, M., eds., Armed Conflict and the New Law – Effecting Compliance (1992) p. 143 at p. 147Google Scholar; Bothe, M., ‘War and Environment’, in Bernhardt, R., ed., Encyclopedia of Public International Law (1982).Google Scholar

52. Art. 54(1).

53. Fenrick, loc. cit. n. 17, at p. 114.

54. See e.g., Fenrick, ibid., who defends the US attack on Manila during World War II as proportional despite the very heavy civilian losses. This author, at p. 1116, also defends the bombings of Nagasaki and Hiroshima on this basis. See Austria's Statement to the Sixth Committee, 1 October 1992, where it asserted that proportionality is most often applied in favour of military considerations at the expense of environmental ones.

55. Fenrick, ibid. See also Brownlie, I., International Law and the Use of Force by States (1963) at p. 264Google Scholar, who argues that since proportionality is rooted in perception, it runs the inherent risk of justifying actions which may actually escalate warfare.

56. Of 18 October 1907, 2 AJIL (1908) Supplement 117.

57. ‘Report of the Conference from the Second Commission on Rights and Duties of Neutral States in Case of War on Land’, in Scott, J.B., ed., Reports to the Hague Conferences of 1899 and 1907 (1917) at p. 539.Google Scholar

58. For example, Switzerland successfully claimed compensation for damage it suffered from the Allied bombardment of Germany during the Second World War, described in Fauteaux, P., ‘L'utilisation de l'environnment comme instrument de guerre au Koweit occupe’, in Les aspects juridiques de la crise et de la ‘guerre’ du Golfe, Proceedings of the Colloquium of 7 and 8 June 1991 organized by the Centre de droit international de Nanterre (1991) p. 227, at p. 240.Google Scholar

59. Oppenheim, L., International Law, Vol. II, 7th edn., Lauterpacht, H., ed. (1952) p. 659.Google Scholar

60. See discussion on ‘no-harm’ principle in 3.2.1, infra. Also see Jordan's reasons for including this topic in the Sixth Committee, UN Doc. A/C.6/46/SR.18 (22 October 1991).

61. Oppenheim, op. cit. n. 59, at p. 674 et seq.

62. Bothe, M., ‘The Protection of the Environment in Times of Armed Conflict: Legal Rules, Uncertainty, Deficiencies and Possible Developments’, delivered at the Ottawa Conference, at p. 7. A revised version of this paper appeared in 34 GYIL (1991) p. 54.Google Scholar

63. See, however, the discussion on the application of the ‘due-diligence’ standard in 3.2.1, infra.

64. Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War, 2 AJIL (1908) Supplement 202; Dinstein, Y., ‘Neutrality in Sea Warfare’Google Scholar, in Bernhardt, op. cit. n. 51, Vol. 4, at p. 19 et seq. The rules of Maritime Neutrality, however, seem ripe for reconsideration, as is now being attempted by the ILA's Committee on Maritime Neutrality (Rapporteur: M. Bothe), as well as in the Round Tables of Experts on Humanitarian Law as applicable to Armed Conflict at Sea (see e.g., Bochumer Schriften, Nos. 7 and 8).

65. Oppenheim, op. cit. n. 59, at p. 239

66. It was revised slightly in the 1907 Hague Convention IV and appeared in a condensed form as a common article in the four 1949 Geneva Conventions. A modernized version appears in Additional Protocols I and II, and in the Preamble to the 1981 UN Weapons Convention.

67. Scott, J.B., The Hague Conventions and Declarations of 1899 and 1907 (1915) at p. 100.Google Scholar

68. See e.g., F. Kalshoven's account of the negotiations at the 1974 ICRC Lucerne Conference in ‘Conventional Weaponry: The Law from St. Petersburg to Lucerne and Beyond’, in Fox, H. and Meyer, M., eds., Armed Conflict and the New Law (1989).Google Scholar

69. E.g., Miyazaki, S., ‘The Martens Clause and International Humanitarian Law’, in Swinarski, C., ed., Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of J. Pictet (1984) p. 433 at p. 437.Google Scholar

70. United Kingdom v. Albania [1949] ICJ Rep. at p. 22. But see Abi-Saab, R., ‘The “General Principles” of Humanitarian Law According to the International Court of Justice’, International Review of the Red Cross (1987) p. 367, at p. 370 et seq.Google Scholar, who suggests that these refer to moral and ethical principles, not legal ones.

71. In the Shimoda case, see n. 44 supra.

72. Thomas, A.V.W. and Thomas, A.J. Jr., Legal Controls of Chemical and Biological Weapons (1971) at p. 190.Google Scholar

73. Krupp Trial, supra, n. 22, at p. 133.

74. Schwarzenberger, G., The Legality of Nuclear Weapons (1958).Google Scholar

75. That version stated: ‘Recalling that, in cases not covered by conventional or customary international law, civilian population and combatants remain under the protection of the principles of humanity and the dictates of public conscience.’

(ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (1973) at p. 3)Google Scholar. See also Bothe et al., op. cit. n. 50, at p. 44.

76. Scott, op. cit. n. 57, at p. 27.

77. See Preambular paragraphs 7 and 8 of the 1899 Hague Convention II; Marin, M. A., ‘The Laws of War’, Hague Receuil (1957) at p. 670.Google Scholar

78. Kalshoven, F., ‘War, Laws Of’, in Bernhardt, , ed., op. cit. n. 51Google Scholar. See also Pictet, J., ed., Commentary on IV Geneva Convention Relative to the Protection of Civilian Persons in Time of Armed Conflict (1958) at p. 58.Google Scholar

79. And also by Switzerland in its statement to the Sixth Committee, 6 October 1992.

80. Chairman's Conclusions, Para. 9.

81. de Vitoria, F., De Indis et de lure Belli Relectiones (1696)Google Scholar, quoted in Solf, W., ‘Protection of Civilians Against the Effects of Hostilities under Customary International Law and Protocol I’, 1 American University Journal of International Law and Policy (1986) p. 117, at p. 119.Google Scholar

82. Zedalis, R., ‘Military Necessity and Iraqi Destruction of Kuwaiti Oil’, 23 RBDI (1990/1992) p. 333.Google Scholar

83. Re Weizsaecker and Others (Ministries Trial), XIV Trials of War Criminals Before the Nuremberg Military Tribunals 314, at p. 336.

84. Jennings, R. and Watts, A., eds., Oppenheim's International Law, Vol I, 9th edn. (1992) at p. 416 et seq.Google Scholar

85. Art. 34 of the Draft Articles on State Responsibility, ILC Yearbook (1980) II (Part II).

86. Higgins, op. cit. n. 49.

87. Kaikobad, K.H., ‘Jus Ad Bellum: Legal Implications of the Iran-Iraq War’, in Dekker, I.F. and Post, H.H.G., eds., The Gulf War of 1980–1988 – The Iran-Iraq War in International Legal Perspective (1992) p. 51 at p. 62.Google Scholar

88. Hostages Trial, supra, n. 23.

89. See comments of Bothe, in Plant, op. cit. n. 1, at p. 125.

90. See 3.2.4, infra.

91. Falk, op. cit. n. 17, at p. 80.

92. See Sandoz, Y., ‘Damage in Armed Conflicts and Redress Under International Humanitarian Law’, International Review of the Red Cross (1982) p. 131 at p. 154.Google Scholar

93. Gasser, H.-P., ‘Some Legal Issues Concerning Ratification of the 1977 Geneva Protocols’, in Fox, and Meyer, , eds., op. cit. n. 68Google Scholar. This standard is affirmed by the British, Italian and Dutch interpretivedeclarations in respect of Part IV of Additional Protocol I on the protection of the civilian population.

94. See Bothe et al., op. cit. n. 50, at p. 359 et seq., on Art. 57(2)(a) of Additional Protocol, which is declaratory of customary international law. See also Art. 25 of the 1923 Hague Draft Rules of Aerial Warfare, 17 AJIL (1923) Supplement 245.

95. This view was echoed by Austria and Sweden in the Sixth Committee (see UN Doc. A/C.6/46/SR.19 (23 October 1991) and UN Doc. A/C.6/46/SR.20 (20 October 1991)).

96. See 3.2.1, infra.

97. Plant, G., ‘Environmental Damage and the Laws of War: Points Addressed to Military Lawyers’, in Fox, and Meyer, , op. cit. n. 51, p. 159, at p. 174.Google Scholar

98. Grotius, op. cit. n. 40, Cap. IV, s. xvi.

99. E. g., Art. 23 (g) of the Hague Rules protects only enemy property. Even defenders retreating from occupied territory are permitted greater destruction (scorched-earth) than attackers in certain cases (see Hostages Trial, supra, n. 23, at p. 1295 et. seq., and German High Command Trial, supra, n. 28, at p. 541).

100. For detailed description of these events, see e.g., Arkin, W., Durrant, D., and Cherni, M., On Impact: Modern Warfare and the Environment – A Case Study of the Gulf War (1991)Google Scholar; Report of the Secretary-General of UNCED, ‘Environmental Assessment of the Gulf Crisis’, 15 July 1991, UN Doc. A/CONF.151/PC/72.

101. See US Department of Defence, Final Report to Congress, ‘Conduct of the Persian Gulf War’, April 1992, Appendix O, pp. 26–27. Also see Australia's comments in the Sixth Committee, UN Doc. A/C.6/46/SR.20 (24 October 1991) pp. 6–7.

102. See comments of Australia in the Sixth Committee, UN Doc. A/C.6/46/SR. 20 (24 October 1991).

103. As argued in effect by the Netherlands in the Sixth Committee, UN Doc. A/C.6/46/SR.20 (24 October 1991) pp. 2–3.

104. Falk, R., ‘Environmental Warfare and Ecocide – Facts, Appraisal, and Proposals’, 1 Bulletin of Peace Proposals (1969) pp. 80, 82.Google Scholar

105. Commission No. 7150, reported in UN War Crimes Commission, History of the UN War Crimes Commission and the Development of the Laws of War (1948) p. 496.Google Scholar

106. As opposed to legal instruments which are expressly binding, such as treaties.

107. Falk, op. cit. n. 17, at p. 86.

108. Final Declaration of the UN Conference on the Human Environment (hereafter, Stockholm Declaration), UN Doc A/CONF.48/14, 16 June 1972.

109. Para. 5, UN Doc. A/RES/35/7 (28 October 1982).

110. Birnie and Boyle, op. cit. n. 15 at p. 431 et seq., who say that while the World Charter for Nature is not legally binding, it does have political and moral force, similar to that of the Universal Declaration of Human Rights. Note, however, that it was not passed unanimously: the US voted against. Contra, Daems, A. and Paye, O., ‘La guerre sale: les règles du droit international applicables à la protection de l'environment’, in Entre les lignes – la guerre du golfe et le droit international (1991) at p. 129.Google Scholar

111. Bouvier, A., ‘Recent Studies on the Protection of the Environment in Time of Armed Conflict’, International Review of the Red Cross (1992) p. 554, at p. 560 et seq.Google Scholar

112. Supra, n. 4.

113. Supra, n. 5.

114. See Art. 22(3)(d) of the Draft Code of Crimes Against the Peace and Security of Mankind.

115. Academic debate does exist on this point. For the proposition that these provisions are declaratory of customary international law, see Solf, op. cit. n. 81, at p. 134; Meyrowitz, H., ‘Les armes nucléaires et le droit de la guerre’, in Delissen, A. and Tanja, G., eds., Humanitarian Law of Armed Conflict (1991) p. 297, 319Google Scholar; Daems and Paye, op. cit. n. 110, at p. 129. Contra F. Kalshoven, in Dekker and Post, op. cit. n. 87, at p. 100, who says that this obligation has only moral force against those not Party to the Treaty.

116. See discussion accompanying n. 155, infra. Note, however, that in the US Department of Defence's Interim Report to Congress, Conduct of the Persian Gulf War (July 1991), these provisions were cited in condemnation of Iraqi action, despite their inapplicability as a matter of treaty law. This reference was omitted in the Final Report (see Plant, loc. cit. n. 97, at p. 167, fn. 52).

117. At the Plenary meeting of 25 May 1977 (CDDH/SR.39).

118. The exception, perhaps, is the Preamble to the UN Weapons Convention, which suggests that the prohibition in Art. 35(3) is part of general international law. But the significance of this should not be overstated for two reasons: this statement appears in the Preamble rather than the main text and, other than France, no major Western military powers have become Parties to the Convention. It should also be noted that at signature of the UN Weapons Convention, France entered a reservation that expressly limited the legal effect of Art. 35(3) to Parties to Additional Protocol I.

119. For example, the behaviour of the belligerents in the Iran-Iraq war, noted in Greenwood, C., ‘Customary Law Status of the 1977 Geneva Protocols’Google Scholar, in A. Delissen and G. Tanja, op. cit. n. 115, at p. 101. This is not dispositive of the issue, however, since the customary law of war does not seem to be generally dependant on actual State behaviourduring wartime for its legal status; compliance tends to be the exception rather than the rule.

120. See 3.2.4, infra, for a detailed discussion of Iraq's liability under this Resolution.

121. Greenwood, loc. cit. n. 119, at p. 105.

122. Art. 146.

123. Zedalis, loc. cit. n. 82, at p. 336.

124. Of 18 May 1977; UKTS 24 (1979) Cmnd. 7469; reprinted in 16 ILM (1977) 88.

125. Okorodudu-Fubara, M.T., ‘Oil in the Persian Gulf War: Legal Appraisal of an Environmental Warfare’ 23 St. Mary's L J (1991) p. 123, at p. 162 et seq.Google Scholar

126. Working Paper submitted by Finland and the Netherlands to the Second Review Conference of the Parties to the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (hereafter, Finland and Netherlands Working Paper), 8 September 1992, UN Doc. ENMOD/CONF.II/8.

127. See Background Paper prepared by the Secretariat, ‘Summary of Negotiations Leading to the Conclusion of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques and of Subsequent Developments Related to the Convention’, 3 August 1992, UN Doc. ENMOD/CONF.II/2, and Okorodudu-Fubara.loc. cit. n. 125 for surveys of ENMOD's negotiating history.

128. Art. II.

129. Plant, G., ‘Legal Aspects of Marine Pollution During the Gulf War’, 7 International Journal of Estuarine and Coastal Law (1992) p. 217, at p. 226CrossRefGoogle Scholar. Goldblat, Contra J., ‘Protection of the Natural Environment Against the Effects of Military Activities: Legal Aspects’, presented at the Ottawa Conference, p. 6Google Scholar; Okorodudu-Fubara, loc. cit. n. 125, at p. 174. The Finland and Netherlands Working Paper suggests that Iraq manipulated at least one natural process, namely, photosynthesis.

130. Although prima facie neither is the use of herbicides, which the USA has declared contrary to ENMOD (see Final Record of the 703rd Meeting of the Conference of the Committee on Disarmament (CDD/PV.703, 20 April 1976, and Netherlands and Finland Working Paper)) with this view being shared by the Parties to ENMOD (see Final Declaration of Second Review Conference of the Parties to ENMOD, UN Doc. ENMOD/CONF.II/11).

131. Fauteaux, loc. cit. n. 58, at p. 249. Rather, a more likely motive was to deprive Kuwait of its most important economic asset in a defiant and desperate manner.

132. Sanchez, L. I. and Ronzitti, N., eds., Law of Naval Warfare (1988) p. 661Google Scholar; Background Paper prepared by the Secretariat, Summary of Negotiations Leading to the Conclusion of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques and of Subsequent Developments Related to the Convention, UN Doc. EN MOD/CONF.II/2, 3 August 1992.

133. It has been argued that Iraq is nonetheless responsible for breaching the terms of the Convention by virtue of being a signatory to ENMOD under Art. 18 of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, which provides that signatories must not engage in acts which defeat the object and purpose of a treaty (see Goldblat, op. cit. n. 129). Contra, Fauteaux, loc. cit. n. 58, who argues persuasively that this argument is misconceived for two reasons: (1) this provision is considered a new developmentof international law, i.e., is not customary international law – therefore since the Vienna Convention entered into force after Iraq signed ENMOD, that rule was not in existence; and (2) in any event, Iraq has not signed the Vienna Convention.

134. Plant, op. cit. n. 1, at p. 47. Contra, Fauteaux, loc. cit. n. 58, at p. 243. But see the acknowledgement made to the Understandings in the Final Declaration of the Second Review Conference of the Parties to ENMOD (UN Doc. ENMOD/CONF.II/11), which suggests that the Parties consider them authoritative.

135. See comments of J. Goldblat at the London Conference, reproduced in Plant, op. cit. n.1, at p. 111.

136. Roberts and Guelff, op. cit. n. 17, at p. 378; Okorodudu-Fubara, loc. cit. n. 125, at p. 175; Plant, op. cit. n. 1, at p. 47; Herczegh, G., ‘La protection de l'environmentnaturel et ledroit humanitaire’, in Swinarski, op. cit. n. 69, at p. 731.Google Scholar

137. See 2.2.4, infra.

138. Goldblat, J., ‘The Prohibition of Environmental Warfare’, 4 Ambio (1975) p. 186, at p. 190.Google Scholar

139. UN General Assembly Resolution 3264 (XXIX), of 9 December 1974, GAOR, 29th session, Supp. No. 31.

140. Goldblat, loc. cit. n. 138. See Mexico's comments in the CCD on 26 August 1976 objecting to establishing a threshold both in principle and because of its inherent subjectivity (see Working Paper CCD/516).

141. See Finland and Netherlands Working Paper, para. 3. For a preliminary evaluation of environmental modification techniques, see Canada's submission to the CCD of 5 August 1975 (UN Doc. CCD/463) in Report of the CCD, GAOR 30th Session, Supp. No. 27, at p. 93 et seq.

142. Plant, op. cit. n. 1, at p. 48; Falk, R., ‘Environmental Disruption by Military Means and International Law’, in Revitalizing International Law (1989) at p. 167.Google Scholar

143. Plant, op. cit. n. 1, at p. 41 et seq.

144. Indeed, Art. III encourages it for peaceful purposes.

145. Fauteaux, loc. cit. n. 58, at p. 245.

146. Which provides that such Conferences be held to review the operation of the Convention ‘with a view to ensuring that its purposes and provisions are being realized’, paying particular attention to the effectiveness of Art. I(1).

147. For the 1984 Conference, see UN Doc. ENMOD/CONF.I/13 and for the one held in 1992, see UN Doc. ENMOD/CONF.II/11.

148. Art. V(2) requires such a Committee to be convened once it is requested by a State Party.

149. See Annex IV of UN Doc. ENMOD/CONF.II/11.

150. ICRC Doc. DDM/JUR 93/18 – CPS/10.

151. Bothe et al., op. cit. n. 50, at p. 344.

152. Ibid.; also see Herczegh, loc. cit. n. 136, p. 725, at p. 729

153. Kalshoven, F., Constraints on the Waging of War, 2nd ed. (1991) at p. 71.Google Scholar

154. On the issue of whether the US should ratify Protocol I, see inter alia: Reagan, R.,‘Letter of Transmittal’ [from the White House to the Senate], 81 AJIL (1987) p. 910CrossRefGoogle Scholar; Gasser, H.P., ‘An Appeal for Ratification by the United States’, 81 AJIL (1987) p. 912CrossRefGoogle Scholar; Aldrich, G., ‘Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol I’, 26 Virginia Journal of International Law (1986) p. 693Google Scholar; Sofaer, A., ‘The Rationale for the United States Decision’, 82 AJIL (1988) p. 784CrossRefGoogle Scholar; Lt. Col. Carnahan, B.M., ‘Additional Protocol I: A Military View’, 19 Akron Law Review (1986) p. 543Google Scholar; Matheson, M., ‘U.S. Position on Protocol I and Customary International Law’, 2 American University Journal of International Law and Policy (1987) p. 425Google Scholar; Aldrich, G., ‘Prospects for the United States Ratification of Additional Protocol I to the 1949 Geneva Convention’, 85 AJIL (1991) p. 1.CrossRefGoogle Scholar

155. The USA has not officially stated this, but several articles by people closely associated with the Reagan Administration have. See e.g., Matheson, ibid.

156. Report of the Chairman, 11 March 1975 (CDDH/III/GT/35), at para. 4.

157. See e.g., the comments of the Swedish delegate at the Meeting of Committee III, 14 February 1975 (CDDH/III/SR.20) who suggested that ‘environment’ be replaced by ‘ecological balance’, which he considered more precise.

158. M. Meyer, in Plant, op. cit. n. 1, at p. 254 et seq.; Report to the Third Committee on the Work of the Working Group, Committee III, 3 April 1975 (CDDH/III/275).

159. Y. Sandoz, C. Swinarski, and B. Zimmerman, eds. (1987).

160. The ICRC also argues that Common Art. 1 of the 1949 Geneva Conventions, which obligates parties to ensure that humanitarian obligations are implemented by every State, creates a duty to protect the environment. However, no obvious legal basis for extending humanitarian obligations to include the environment exists and the ICRC position contains no analysis of the extent of any such duty (see ICRC, Protection of the Environment in Times of Armed Conflict (1991)).Google Scholar

161. Bothe, M., ‘War and the Environment’Google Scholar, in Bernhardt, op. cit. n. 51, Vol. 4, p. 290, at p. 292.

162. Bothe et al., op. cit. n. 50, at p. 198; Kiss, A., ‘Les Protocoles additionnels aux Conventions de Geneve de 1977 et la protection de biens de 1'environment’, in Swinarski, op. cit. n. 69, at pp. 185, 188–190Google Scholar. See also Report of the UN Secretary-General, Protection of the Environment in Times of Armed Conflict, UN Doc. A/47/328 (31 July 1992), reproducing information provided by the ICRC on this subject, at para. 17. Contra, the comments of Committee III on the Work of the Working Group on Art. 48 bis [now Article 35(3)] (CDDH/III/275).

163. ICRC Commentary on the Additional Protocols, at p. 663.Google Scholar

164. Report of the Third Committee (CDDH/III/275).

165. Report of Committee III, Second Session (CDDH/215/Rev.l), at para. 82.

166. Kalshoven, op. cit. n. 153, at p. 81.

167. CDDH/215/Rev.1, at para. 27.

168. See Momtaz, loc. cit. n. 6.

169. Herczegh, loc. cit. n. 136, at p. 728 et seq.

170. CDDH/III/60, 19 March 1974.

171. E.g., by the Irish delegate in Meeting of Committee III, 14 February 1975 (CDDH/III/SR.20).

172. See Comments of Vietnam in the Meeting of Committee II, 27 February 1975, CDDH/III/SR.26; Bothe et al., op. cit. n. 50, at p. 348.

173. CDDH/215/Rev.1, at para. 27.

174. Report of the Chairman of the Group ‘Biotope’, 11 March 1975 (CDDH/III/GT/35), at para. 6.

175. Note that the original Australian proposal on environmental protection included declaring violations as ‘grave breaches’ (see CDDH/III/60 of 19 March 1974). The ICRC argue that while not directly a grave breach, such acts may be part of grave breaches of other acts (see ICRC, Protection of the Environment …, op. cit. n. 160, at p. 8). An example might be the targeting of nature reserves which are non-defended localities or demilitarized zones (Art. 85(3)(d)) – see text accompanying n. 183, infra. Note, however, that Art. 22(2)(d) of the ILC Draft Articles on Crimes Against Peace and Security of Mankind is expressed in identical terms as Art. 35(3) of Additional Protocol I, breach of which is considered an exceptionally serious war crime (Report of the ILC on the Work of its 43rd Session, GAOR 46th Session, Supp. No. 10 (A/46/10)).

176. See e.g., proposed Art. 48 bis submitted by Australia (CDDH/III/60, 19 March 1974) and the Report of the Chairman of the Group ‘Biotope’ (CDDH/III/GT/35, 11 March 1975). Note, however, that Art. 91 does attach liability for compensation upon a Party in breach of the Protocol.

177. Bothe et al, op. cit. n. 50, at p. 341 argue that ‘direct support of military action’ implies a narrower exception than ‘effective contribution to military action’ in Art. 52(2).

178. Art. 54(5).

179. Para. 2(a).

180. Bothe et al., op. cit. n. 50, at p. 348 et seq.

181. Aldrich, loc. cit. n. 154, atp. 12etseq. The ICRC suggest that a reasonable interpretation of this article requires more than merely supplying electricity. But it is unclear from the text or the ICRC Commentary on the Additional Protocols what the precise threshold for ‘support of military operations’ actually is (see p. 672).

182. See text accompanying n. 93, supra.

183. ICRC Commentary on the Additional Protocols, at p. 710.

184. E.g., St. Petersburg Declaration; Hague Declaration 3 Concerning Expanding Bullets of 29 July 1899, UKTS 32 (1907) Cd. 3751.

185. See Preamble, 4th recitation.

186. Art. 4(3) requires acceptance of at least two Protocols at time of deposit of instruments of ratification of the Convention.

187. Goldblat, J., ‘The Laws of Armed Conflict – An Overview of the Restrictions and Limitations on the Methods and Means of Warfare’, 13 Bulletin of Peace Proposals (1982) p. 127.CrossRefGoogle Scholar

188. Shaw, loc. cit. n. 43, at p. 118.

189. Of 29 July 1899, 1 AJIL (1907) Supplement 157.

190. See e.g., UN General Assembly Resolution 2603 A (XXIV) of 16 December 1969.

191. XCIV LNTS (1929) 65.

192. Roberts and Guelff, op. cit. n. 17, at p. 137 et seq.

193. Goldblat, J., ‘The Convention on “Inhumane” Weapons’, 1 Bulletin of Atomic Scientists (1983) p. 24.CrossRefGoogle Scholar

194. Roberts, A., ‘The Relevance of the Laws of War in a Nuclear Age’, in Dewar, J., Paliwala, A., Picciotto, S. and Ruete, M., eds., Nuclear Weapons, the Peace Movement and the Law (1986) p. 25, at p. 42.Google Scholar

195. Of 10 April 1972, 1971 UN Yearbook 118; 26 UST 583.

196. Art. I.

197. Arts. II and III.

198. Falk, R., ‘Inhibiting Reliance on Biological Weaponry: The Role and Relevance of International Law’, Ethics and International Affairs (1989) p. 183, at p. 195.Google Scholar

199. Art. VI(2).

200. Roberts and Guelff, op. cit. n. 17, at p. 146.

201. Of 13 January 1993, text available from the UN Office of Disarmament Affairs (Doc. 93–05070).

202. Art. I(a) and (b).

203. Art. I(2).

204. Art. I(4) and Art. IV(6).

205. Art. VI.

206. Part VI.

207. Art. VIII.

208. Art. III.

209. Arts. IV(7)(a) and V(9)(a).

210. Arts. IV(7)(b) and V(9)(b).

211. Arts. IV(5), V(7)(b), VII(2) and the Verification Annex.

212. Art. IX(8).

213. Art. VIII(4).

214. Art. XII.

215. For a description of ‘nuclear winter’ see e.g., Report of the Secretary-General, ‘Study on the Climactic and Other Global Effects of Nuclear War’, 5 May 1988, UN Doc. A/43/351; UN General Assembly Resolution 31/148 F, of 1984; World Commission on Environment and Development, Our Common Future (1987) at p. 295 et seq.Google Scholar

216. Scholarly opinion on this is split. There are those who argue that the law is plainly clear, that nuclear weapons are illegal, e.g., Meyrowitz, E.L., ‘The Laws of War and Nuclear Weapons’, in Miller, A.S. and Feinrider, M., eds., Nuclear Weapons and the Law (1984) p. 19Google Scholar. Others argue that the law is also clear, and that it does not prohibit nuclear weapons, e.g., US Dept. of Army, The Law of Land Warfare, FM 27–10 (1956) para. 113Google Scholar; Stein, E., ‘Impact of New Weapon Technology on International Law’, 133 Hague Receuil (1971-II) p. 291.Google Scholar Most scholars, however, are of the view that the law is uncertain and legality must be judged on a case-by-case manner, e.g., McCoubrey, H., International Humanitarian Law (1990) p. 166Google Scholar; Shaw, M., ‘Nuclear Weapons in International Law’, in Polgany, I., ed., Nuclear Weapons and International Law (1987) p. 1, at pp. 16–18Google Scholar; and Singh, N. and MacWhinney, E., Nuclear Weapons and Contemporary International Law, 2nd edn. (1989)Google Scholar who suggest that use of nuclear weapons in self-defence may be legitimate if no other option is available to repel a conventional attack. For a brief general discussion, see Report of the Secretary-General, ‘Comprehensive Study on Nuclear Weapons’, 18 September 1990, UN Doc. A/45/373.

217. Boyle, A.E., ‘Land Based Sources of Marine Pollution’, in 16 Marine Policy (1992) p. 20CrossRefGoogle Scholar; Nuclear Tests Case (Australia v. France) [1974] ICJ Rep. 253 (see dissenting opinion of Judge De Castro at p. 388 et seq.). There are treaties prohibiting testing outright, e.g., Treaty Banning the Testing of Nuclear Weapons in the Atmosphere, Outer Space, and Under Water, of 5 August 1963, 480 UNTS 43 (to be noted, though, is that Art. VIII permits withdrawal from the Treaty in cases of ‘supreme national interest’); Antarctic Treaty, of 1 December 1959, 402 UNTS 71, (Art. V of which prohibits the testing of nuclear devices in all environmental media).

218. Green, L.C., ‘What One May Do in Combat - Then and Now’, in Delissen and Tanja, op. cit. n. 115, p. 269, at p. 293Google Scholar, although partial and regional arrangements exist, such as the South Pacific Nuclear Free Zone Treaty of 5 August 1985, reprinted in 24 ILM (1985) p. 1440.

219. But the Shimoda case, supra, n. 44, suggests that all this depends on the military advantage at stake.

220. Schwarzenberger, op. cit. n. 74.

221. Whiteman, M., ‘Jus Cogens in International Law, With a Projected List’, 7 Georgia JI & Comp. Law (1977) p. 609, at p. 626Google Scholar; Hannikainen, L., Peremptory Norms (Jus Cogens) in International Law (1988) p. 619 et seqGoogle Scholar. But this view should be treated with caution, since the precise content of jus cogens is to a large extent uncertain.

222. McCoubrey, op. cit. n. 216, at p. 168.

223. Resolution 1653 (XVI) of 24 November 1961.

224. Bothe et al, op. cit. n. 50, at p. 188 et seq.

225. Op. cit. n. 34, at para. 10.2.1.

226. Even the decision in Shimoda, supra, n. 44, does not support the position that nuclear weapons would be illegal in all situations.

227. Shaw, loc. cit. n. 216.

228. Roberts, loc. cit. n. 194, at p. 46.

229. Boyle, A.E., “Saving the World? Implementation and Enforcement of International Environmental Law Through International Institutions’, 3 Journal of Environmental Law (1991) p. 229, at p. 230.CrossRefGoogle Scholar

230. Boyle, A.E., ‘Making the Polluter Pay? Alternatives to State Responsibility in the Allocation of Transboundary Environmental Costs’, in Francioni, F. and Scovazzi, T., eds., International Responsibility for Environmental Harm (1991) p. 363, at p. 377 et. seq.Google Scholar

231. See 2.1.8, supra.

232. Of 12 May 1954, 327 UNTS 3.

233. Of 2 November 1973, reprinted in 12 ILM (1973) 1319.

234. E.g., Art. IX of the Convention on Civil Liability for Oil Pollution Damage, of 29 November 1969, UKTS 106 (1975) Cmnd. 6183, reprinted in 9 ILM (1970); Art. IV(2)(a) of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, of 18 December 1971, 1971 UN Yearbook 103; Art. VIII of the Convention on the Liability of Operators of Nuclear Ships, of 25 May 1962, 57 AJIL (1963) p. 268; Art. IV(3)(a) of the Vienna Convention on Civil Liability for Nuclear Damage, of21 May 1963, UNJYB (1963) p. 148; Art. 2(1) of the Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, of 17 December 1971, UN Yearbook (1971) p. 100, which incorporates by reference the exemptions from the Vienna Convention on Civil Liability for Nuclear Damage; Art. 8(4)(a) of the Convention on the Regulation of Antarctic Mineral Resource Activities, of 2 June 1988, reprinted in 27 ILM (1988) 868.

235. At both the Ottawa Conference (Chairman's Conclusions, at para. 11) and the Munich Conference (Recommendations, at para. 2).

236. This controversy is evident by the avoidance of the issue in the Vienna Convention on the Law of Treaties (Art. 73).

237. See e.g., correspondence of 12 July 1845 from Mr Buchanan of the US Secretary of State to Mr Packenham, British Minister, and President Polk's annual message, reported in V Moore's International Law Digest (1906) at p. 375Google Scholar; McNair, A.D., Law of Treaties (1961) at p. 698.Google Scholar

238. McNair, ibid., p. 700; Stone, J., Legal Controls of International Conflict (1959) p. 448.Google Scholar

239. The law of war treaties or others such as the Anglo-American Treaty, 5 de Martens at p. 684.

240. McNair, op. cit. n. 237, at p. 696.

241. Ibid., at p. 705.

242. The Preamble, second recitation, and Art. I indicate that the Treaty is to continue in effect even if hostilities break out between Parties. See also its 1991 Protocol on Environmental Protection, of 17 October 1991, reprinted in 2 Yearbook of International Environmental Law (1991) p. 533.Google Scholar

243. Stone, op. cit. n. 238, at p. 449.

244. Oppenheim, op. cit. n. 59, at p. 304.

245. Art. 4, 6 Annuaire de l'Institut de Droit International, edn. abrégée, p. 587Google Scholar, cited with approval by Cardozo J. in Techt v. Hughes, 229 NY 222, 128 NE 185 (NY Court of Appeal), cert, denied 254 US 643.

246. Oppenheim, op. cit. n. 59, at p. 304.

247. Stone, op. cit. n. 238, at p. 449, notes, however, that State practice may reveal a tendency to treat inter-belligerent treaty relations as abrogated by war.

248. Of 3 March 1973, 993 UNTS 243.

249. Of 18 October 1950, 638 UNTS 1950.

250. Provided in Art. XIV of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, of 29 December 1972, 1046 UNTS 120, reprinted in 11 ILM (1972) 262.

251. Mallet, V., ‘Disaster Leaves Experts Guessing’, Financial Times (8 July 1991).Google Scholar

252. Fleck, loc. cit. n. 51, at p. 150.

253. Hurst, C.J.B., ‘The Effect of War on Treaties’, 2 BYIL (1924) p. 37, at p. 41Google Scholar; Arts. 7–11 of the IDI Resolution, op. cit. n. 245.

254. See section 2.1.5, supra.

255. E.g., Arts. 192 and 194(2) of the UN Convention on the Law of the Sea (hereafter, UNCLOS III), of 10 December 1982, UN Doc. A/CONF.62/122. See Fleck, loc. cit. n. 51, at p. 150, who suggests the continued application of the Vienna Convention on the Protection of the Ozone Layer, of 22 March 1985, UNEP Doc. IG.53/5, and its 1987 Montreal Protocol, UKTS 19 (1990) Cm. 977, reprinted in 26 ILM (1987) 1550.

256. See e.g., Art. 88 of UNCLOS III which reserves the high seas for peaceful use only.

257. See e.g., Art. 4 of the International Covenant on Civil and Political Rights, of 16 December 1966, 999 UNTS 171.

258. Of 23 November 1972, UN Yearbook (1972) p. 89, reprinted in 11 ILM (1972) 1358.

259. Art. VI.I.

260. Art. VI.3.

261. United Kingdom v. Iceland, [1974] ICJ Rep., para. 43.

262. As for example D. Fleck does in ‘Topical Approaches towards Developing the Laws of Armed Conflict at Sea’, in Delissen and Tanja, op. cit. n. 115, p. 406, at p. 422, where he states that Part XII of UNCLOS III, which provides for the protection of the marine environment, is ‘not valid for environmental damage caused in armed conflicts.’

263. See section 4, infra.

264. US v. Canada, 3 RIAA 1905 (1941).

265. Kiss and Shelton, op. cit. n. 9, at p. 121 et seq. See also Nuclear Tests case, supra, n. 217.

266. Birnie and Boyle, op. cit. n. 15, at p. 89.

267. See Sohn, L., ‘The Stockholm Declaration on the Human Environment’, 14 Harvard International Law Journal (1973) p. 423, at p. 493.Google Scholar

268. Kiss and Shelton, op. cit. n. 9, at p. 130.

269. 25 February 1991, UN Doc. E.ECE.1250, reproduced in 30 ILM (1991) 800.

270. This was not an issue in Trail Smelter since liability was admitted.

271. Op. cit. n. 70.

272. Ibid., at p. 53.

273. Ibid.

274. Boyle, A.E., ‘Nuclear Energy and International Law: An Environmental Perspective’, 60 BYIL (1989) p. 288, at p. 289.Google Scholar

275. There is significant debate over the presence of an objective test of due diligence (see The Alabama Claims (United States v. United Kingdom) (1872), 1 Moore InternationalArbitrations 495, at p. 654) or whether its content should be determined solely by the circumstances of the particular State (Case Concerning United States Diplomatic and Consular Staff in Teheran (United States v. Iran), [1980] ICJ 3 at p. 33). A contemporary view synthesizes the two approaches by applying the standard in relation to a State's particular capabilities except when that conduct falls below an accepted international standard (Smith, B.D., State Responsibility and the Marine Environment (1988) at p. 40).Google Scholar

276. 961 UNTS 187; Art. 1.

277. Art. 194(5); see also Birnie and Boyle, op. cit. n. 15, at p. 93.

278. See section 3.2.4, infra.

279. ENMOD and Additional Protocol I have been described as implementing this principle by Momtaz, op. cit. n. 6.

280. Feliciano, F., ‘Marine Pollution and Spoliation of Natural Resources as War Measures: A Note on Some International Law Problems of the Gulf War’, 14 Houston JIL (1991) p. 483, at p. 498.Google Scholar

281. Spain v. France, 24 ILR (1957) p. 101.

282. E.g., Arts. 5 and 8 of the 1979 Geneva Convention on Long-Range Transboundary Air Pollution, UN Doc. ECE/HLM.1/R.1, reprinted in 18 ILM (1979) 1442.

283. E.g., Arts. 204–206 of UNCLOS III.

284. E.g., OECD Council Recommendations C(74) 224 (1974), para. 6; International Law Association's Montreal Rules on Transfrontier Pollution, Arts. 4–6, 1982.

285. OJ No. L 175 of 5 July 1985, p. 40. See also Art. 2(1) of the ECE Convention of Environmental Impact Assessment.

286. Art. 2.

287. Reprinted in 25 ILM (1986) 1370. See also the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, of 26 September 1986, reprinted in 25 ILM (1986) 1377.

288. E.g., Art. 199 of UNCLOS III; OECD Declaration of Principles on Transfrontier Pollution, C(88)84(Final), 8 July 1988.

289. See e.g., UN General Assembly Resolution 2995 (XXVII), UN Yearbook (1972) at p. 330 et seq.

290. Falk, loc. cit. n. 142, at p. 179.

291. Established under the auspices of the Oslo Convention for the Prevention of Maritime Pollution by Dumping from Ships and Aircraft, of 15 April 1972, reprinted in 11 ILM (1972) 262.

292. Freestone, D., ‘The Precautionary Principle’, in Churchill, R. and Freestone, D., eds, International Law and Global Climate Change (1991) p. 21, at p. 32 et. seq.Google Scholar

293. Decision of 25 May 1989,15/27.

294. See e.g, 1990 Bergen Ministerial Declaration on Sustainable Development in the ECE Region; ASEAN Workshop on Scientific, Policy and Legal Aspects of Global Climate Change, 20 September 1990; London Ministerial at the Second International Conference on the Protection of the North Sea, 25 November 1987; Ministerial Declaration of the Second World Climate Conference, 7 November 1990.

295. Handl, G., ‘Environmental Security and Global Climate Change: The Challenge to International Law’, in Lang, W., Neuhold, H. and Zamanek, K., eds., Environmental Protection and International Law (1991) p. 59, at p. 75 et. seq.Google Scholar

296. Although it is endorsed in two notable legal instruments which have yet to enter into force: Amended Art. 130R(2) Treaty on European Union, of 7 February 1992, OJ No. C 191/1 of 29 July 1992, and the Art. 1(2) of the Convention on the Protection of the Marine Environment of the North-East Atlantic, of 22 September 1992, IMO Doc. LDC 15/INF.11.

297. Op. cit. n. 15, at p. 98.

298. Freestone, op. cit. n. 292, at p. 37 suggests that the ‘foreseeability’ and ‘due diligence’ requirements in international law may already be overtaken.

299. Note that M. Bothe suggests reformulating Art. 35(3) to incorporate die ‘principle of precaution’, in ‘Environmental Protection in Times of Armed Conflict – Legal Rules, Uncertainty, Deficiencies and Possible Developments’, at p. 8, delivered at the First ICRC Meeting of Experts.

300. See e.g., the 1984 Protocol to the Convention on Civil Liability for Oil Pollution Damage (hereafter, 1984 CLC Protocol), IMO Doc. LEG/CONF.6/66; reprinted in 9 ILM 45; the EC's Amended Proposal for a Council Directive on Civil Liability for Damage Caused by Waste, OJ No. C 192/6; COSMOS 945 Claim, where Canada successfully claimed clean-up costs in respect of damage caused by a fallen Soviet satellite in uninhabited Arctic tundra (settlement reprinted in 18 ILM (1979) 899; and Art. 2(g) of the ILC Draft Articles on Liability for Injurious Acts Arising from Activities Not Prohibited by International Law (hereafter, Draft Articles on International Liability) which includes environmentalharmasadistinctaspectoftransboundaryharm (UN Doc. A/CN.4/428).

301. UN Doc. S/RES/687 (1991).

302. See Hostages Trial, supra, n. 23 and German High Command Trial, supra, n. 28.

303. As discussed in 2.2.5, supra, this may sometimes be the result in practice, but it is a trend which, from an environmental perspective, is undesirable.

304. In para. 18, along with a Fund to pay compensation for claims. For a general discussion, see Bethlehem, D., ‘Claims Against Iraq: The Security Council Initiative’, 2 Oil, Gas & Taxation LR (1991) p. 39.Google Scholar

305. ILC Draft Articles on International Liability, supra, n. 300.

306. Report of the International Law Commission on the work of its 43 rd session (29 April-19 July 1991), GAOR, 46th Session, Supp. No. 10 (A/46(19)), at p. 277 et seq. See also Art. 26(1)(a) which creates an exemption from liability for harm due to war, hostilities, civil war or insurrection.

307. Birnie and Boyle, op. cit. n. 15, at p. 141, point out that operating a smelter is not an internationally wrongful act, but its harmful effects on another State is.

308. See recent comments of USA, Uruguay, Iran, and Belarus to the Sixth Committee, UN Doc. A/C.6/47/SR.9. Also see Antoine, P., ‘International Humanitarian Law and the Protection of the Environment in Time of Armed Conflict’, International Review ofthe Red Cross (1992) p. 517, at pp. 532 and 534.Google Scholar

309. Resolution 47/36 (UN Doc. A/47/590).

310. Greenwood, C., ‘Ensuring Compliance with the Law of Armed Conflict’, in W.E. Butler, Control over Compliance with International Law (1991) p. 195, at p. 201 etseq.Google Scholar Greenwood points out that most countries in fact do not have military manuals.

311. Greenwood, ibid., and Roberts, A., ‘Failures in Protecting the Environment in the 1991 Gulf War’, in Rowe, P., ed., The Gulf War and International Law, forthcoming, at p. 59.Google Scholar

312. Goldblat, op. cit. n. 129; Oxman, B.H., ‘Environmental Warfare’, 22 ODIL (1991) p. 433, at p. 436.CrossRefGoogle Scholar On the list of protected objects, see the Final Report of the Meeting of Senior Legal Experts on Protection of Cultural and Natural Heritage Sites in Times of Armed Conflict, December 1992 (convened by the IUCN Commission on Environmental Law, International Council of Environmental Law, and the World Travel and Tourism Council), who recommended that the sites designated under the 1972 World Heritage Convention, the 1971 Ramsar Convention on Wetlands of International Importance (of 2 February 1971, UKTS 34 (1976) Cmnd. 6465), relevant regional conventions, UN List of Parks and Protected Areas, and the UNESCO Biosphere Reserve System be reserved for special protection during armed conflict in a manner analogous to what is provided under Art. 60 of Additional Protocol I.

313. Goldblat, ibid.

314. Harmonization is suggested by Bouvier, A., ‘Protection of the Natural Environment in Time of Armed Conflict’, International Review of the Red Cross (1991) at p. 576Google Scholar, who argues that this would present few legal difficulties since the terms of the threshold were given meaning only by the negotiators but not expressed in the texts. Note, however, that the Second Review Conference of Parties to ENMOD refused to adopt this suggestion.

315. Perhaps a ‘greening’ of Additional Protocol I.

316. With perhaps the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict, of 14 May 1954, 249 UNTS 240, as a model.

317. See e.g., R. Falk, in Plant, op. cit. n. 1; Robinson, N., Draft Articles with Commentary, for Inclusion in a Convention Securing Nature from Warfare or Other Hostile Activities, April 1991, unpublished.Google Scholar

318. Roberts, op. cit. n. 311, at p. 57 et seq.

319. Greenwood, op. cit. n. 310, at p. 200.

320. Art. 19(3)(d), Draft Articles on State Responsibilityand Arts. 22(3)(d)and 26 of the Draft Code of Crimes Against the Peace and Security of Mankind.

321. Federal Ministry of Defence, ‘The Technical Concept, “Environmental Protection in the Federal Armed Forces”’, (Bonn 1990) p. 18.Google Scholar See also Helsinki Summit Declaration of the Conference on Security and Cooperation in Europe, 10 July 1992, which recognizes the importance of bringing ‘defence-related hazards for the environment under control’ (Para. 32). For interesting proposals on using military resources for environmental purposes, see Report of the UN Secretary-General, ‘Charting Potential Uses of Resources Allocated to Military Activities for Civilian Endeavours to Protect the Environment’, 17 September 1991, UN Doc. A/46/364.