Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-28T03:22:43.625Z Has data issue: false hasContentIssue false
  • English
  • Français

The Prevention of Environmental Damage in Time of Armed Conflict: Proportionality and Precautionary Measures1

Published online by Cambridge University Press:  17 February 2009

Richard Desgagné
Get access

Extract

The law of war historically paid scant attention to the protection of the environment. Its main focus was to regulate hostilities so as protect combatants from unnecessary injury. Since World War II, it has turned to the protection of the civilian population and individual civilians. It does not follow that the environment did not receive any protection at all. In as much as international humanitarian law places constraints on the use of means and methods of warfare, the environment was indirectly protected. Thus, the provisions of the Hague or the Geneva Conventions, through the protection of civilian property and objects, offer indirect protection of the environment. Similarly, the banning of weapons of mass destruction, such as biological and chemical weapons, or the restraints on activities related to nuclear warfare, such as the testing of nuclear weapons, also ultimately limit potential damage to the environment caused by armed conflicts.

Type
Articles
Information
Yearbook of International Humanitarian Law , Volume 3 , December 2000 , pp. 109 - 129
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2000

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

3. Roberts, A., ‘The Law of War and Environmental Damage’, in Austin, J.E. and Bruch, C.E., eds., The Environmental Consequences of War (Cambridge, Cambridge University Press 2000) pp. 47–86 at 50CrossRefGoogle Scholar.

4. Principle 26, Declaration on the Human Environment, Stockholm, 16 June 1972, in Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/Rev. 1 (1973) reprinted in 11 ILM (1972) p. 1416Google Scholar.

5. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, 1342 UNTS 137, reprinted in 19 ILM (1981) p. 1524Google Scholar.

6. Roberts, loc. cit n. 3, at pp. 48–49.

7. Other provisions include Art. 2(4) of Protocol III on incendiary weapons to the 1980 UN Convention on Certain Conventional Weapons, which prohibits ‘to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.’

8. S. Oeter, , ‘Methods and Means of Combat’, in Fleck, D., ed., The Handbook of Humanitarian Law in Armed Conflicts (Oxford, Oxford University Press 1995) pp. 105–207 at 117–118Google Scholar; Low, L. and Hodgkinson, D., ‘Compensation for Wartime Environmental Damage: Challenges to International Law After the Gulf War’, 35 Virginia JIL (1995) pp. 405–484 at 426, n. 153Google Scholar; Simonds, S.N., ‘Conventional Warfare and Environmental Protection: A Proposal for International Legal Reform’, 29 Stanford JIL (1992) pp. 165–221 at 173Google Scholar; Judge Advocate General's School, US Army, Operational Law Handbook, 2001, pp. 221–222Google Scholar.

9. German Military Manual (1992) p. 37, para. 403Google Scholar.

10. Aldrich, G.H., ‘Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions’, 85 AJIL (1991) pp. 1–20 at 13–14CrossRefGoogle Scholar. With regard to Art. 35(3), the report adopted by Committee III (CDDH) stated that:

The Biotope Report states that ‘acts of warfare which cause short-term damage to the natural environment, such as artillery bombardment, are not intended to be prohibited by the article’, ¼ However, it is impossible to say with certainty what period of time might be involved. It appeared to be a widely shared assumption that battlefield damage incidental to conventional warfare would not normally be proscribed by this provision.

CDDH/215/Rev.l, para. 27; quoted in Bothe, M., Partsch, K.J. and Sofl, W.A., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Additional Protocols to the Geneva Conventions of 1949 (The Hague, M. Nijhoff 1982) pp. 346–348Google Scholar.

11. According to the ICRC Commentary the word ‘health’ was used:

[…] to indicate that the provision is concerned not only with acts which jeopardize the survival of the population, but also with those which could seriously prejudice health, such as congenital defects, degenerations or deformities. Temporary or short-term effects are not taken into account in the prohibitions laid down in this article.

Pilloud, C. and Pictet, J., ‘Article 55 – Protection of the Natural Environment’, in Sandoz, Y. et al. , eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC 1987) p. 662, para. 2135Google Scholar.

12. Bothe, M., ‘The Protection of the Environment in Times of Armed Conflict – Legal Rules, Uncertainties, Deficiencies and Possible Developments’, 34 GYIL (1991) pp. 54–62 at 56–57Google Scholar; Momtaz, D., ‘Les règles relatives à la protection de l'environnement au cours des conflits armés à l'épreuve du conflit entre l'Irak et le Koweit’, 37 AFDI (1991) pp. 203–219 at 209–210CrossRefGoogle Scholar; Simonds, loc. cit n. 8, pp. 174–175; David, E., Principes de droit des conflits armés (Bruxelles, Bruylant 1994) p. 257Google Scholar.

13. Protection of the Natural Environment in Time of Armed Conflict, Contribution of the International Committee of the Red Cross to the Rio Conference,June 1992Google Scholar.

14. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. (1971) pp. 16 at 31, para. 53Google Scholar. See also the oral pleadings of Germany in the LaGrand case (Germany/United States) before the International Court of Justice, Public sitting held on Monday 13 November 2000, CR 2000/26, paras. 8–11 (B. Simma).

15. Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Rep. (1997) p. 7, paras. 139 et seqGoogle Scholar. See Sohnle, J., ‘Irruption du droit de l'environnement dans la jurisprudence de la C.I.J.: L'affaire Gabcíkovo-Nagymaros’, 102 RGDIP (1998) pp. 85–121 at 97–98Google Scholar.

16. Roberts, loc. cit. n. 3, at p. 64.

17. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000) paras. 14–16.

18. Report of the Secretary-General on the protection of the environment in times of armed conflict, UN Doc. A/48/269 (July 29, 1993) at p. 7, para. 34.

19. Protection of the environment in times of armed conflict: Report of the Secretary-General, UN Doc. A/47/328 (July 31,1992), paras. 8–9; Simonds, loc. cit n. 8, pp. 169–170.

20. Hague Convention Respecting the Laws and Customs of War on Land with Annex of Regulations, Oct. 18, 1907, 36 Stat. 2227, I Bevans 631, reprinted in 2 AJIL (1908, suppl.) p. 90CrossRefGoogle Scholar.

21. Best, G., ‘The Historical Evolution of Cultural Norms Relating to War and the Environment’, in Westing, A.H., ed., Cultural Norms, War and the Environment (Oxford, Oxford University Press 1988) pp. 18, 20Google Scholar.

22. A ‘modernized’ version of the Martens Clause appears in Art. 1(2) AP I:

‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’

23. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Rep. (1996) para. 78Google Scholar. In that perspective, Judge Shahabuddeen, in his dissenting opinion, went further:

‘In effect, the Martens Clause provided authority for treating the principles of humanity and the dictates of public conscience as principles of international law, leaving the precise content of the standard implied by these principles of international law to be ascertained in the light of changing conditions, inclusive of changes in the means and methods of warfare and the outlook and tolerance levels of the international community. The principles would remain constant, but their practical effect would vary from time to time: they could justify a method of warfare in one age and prohibit it in another.’

Dissenting Opinion of Judge Shahabuddeen, pp. 153 at 160.

24. Bothe, loc. cit. n. 12, at pp. 54–62 at 56; Roberts, loc. cit. n. 3, at p. 52; Baker, B., ‘Legal protection for the Environment in Times of Armed Conflict’, 33 Virginia JIL (1993) pp. 351–383, at 351–352Google Scholar; Hulme, K., ‘Armed Conflict, Wanton Ecological Devastation and Scorched Earth Policies: How the 1990–91 Gulf Conflict Revealed the Inadequacies of the Current Laws to Ensure Effective Protection and Preservation of the Natural Environment’, 2 J Armed Conflict L (1997) pp. 45–81 at 51CrossRefGoogle Scholar.

25. Principle 26 of the Stockholm Declaration (1972), supra n. 4.

26. World Charter for Nature, General Assembly Resolution 37/7, UN GAOR, 37th Sess., Supp. No. 51, at 17, UN Doc. A/37/51 (1982), paras. 5 and 20; Declaration on Environment and Development, Rio de Janeiro, 13 June 1992, Report of the UN Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), Annex I (1992), reprinted in 31 ILM (1992) p. 874Google Scholar, Principle 24.

27. Roberts, loc. cit. n. 3, at pp. 50–51.

28. Verwey, W.D., ‘Protection of the Environment in Times of Armed Conflict: In Search of a New Legal Perspective’, 8 Leiden JIL (1995) pp. 7–40, at p. 21CrossRefGoogle Scholar; Lijnzaad, L. and Tanja, G.J., ‘Protection of the Environment in Times of Armed Conflict: The Iraq-Kuwait War’, 40 NILR (1993) pp. 69–199 at 172–173CrossRefGoogle Scholar; Baker, loc. cit. n. 24, at p. 373.

29. Roberts, loc. cit. n. 3, at p. 57.

30. Judge Advocate General's School, US Army, Operational Law Handbook (2001) p. 219Google Scholar. The Conference of Experts on the Use of the Environment as a Tool of Conventional Warfare, held in Ottawa in 1991, stated that ‘the customary laws of war, in reflecting the dictates of public conscience, now include a requirement to avoid unnecessary damage to the environment’. Statement distributed in GA 6th Committee on Agenda Item 140, 22 October 1991, quoted in Lijnzaad and Tanja, loc. cit. n. 28, at p. 184.

31. Protection of the environment in times of armed conflict, UN Doc. A/RES/47/37 (25 November 1992).

32. UN Doc. A/C.6/46/SR.18, para. 14.

33. M.N. Schmitt, ‘War and the Environment: Fault Lines in the Prescriptive Landscape’, in Austin and Bruch, op. cit. n. 3, pp. 87–136 at 97.

34. See for instance the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000) (hereafter, ‘OTP Report’), paras. 18–25, where the Committee applied the concept of environmental collateral damage.

35. Legality of the Threat or Use of Nuclear Weapons, supra n. 23, para. 30, see also para. 33.

36. OTP Report, supra n. 34, para. 18.

37. Schachter, O., ‘Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity’, 86 Proc ASIL (1992) at p. 39Google Scholar, quoted in Belt, S. Walters, ‘Missiles over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas’, 47 Naval Law Review (2000) pp. 115–175 at 158, n. 263Google Scholar.

38. Bothe, loc. cit. n. 12, at p. 56; Tarasofsky, R. G., ‘Legal Protection of the Environment During International Armed Conflict’, 24 NYIL (1993) pp. 17–79 at 30CrossRefGoogle Scholar.

39. Walters Belt, loc. cit. n. 37, at p. 157.

40. Schmitt, M.N., ‘Green War: An Assessment of the Environmental Law of International Armed Conflict’, 22 Yale JIL (1997) pp. 1–109 at 55–61Google Scholar.

41. Schmitt, loc. cit. n. 33, at p. 113.

42. Rowe, P., ‘Kosovo 1999: The Air Campaign — Have the Provisions of Additional Protocol I Withstood the Test?’, 28 IRRC (2000) pp. 147 at 155Google Scholar.

43. UNEP/UNCHS, The Kosovo Conflict: Consequences for the Environment (1999) p. 33Google Scholar.

44. Ibid., p. 35.

45. UNEP/UNCHS Balkans Task Force (BTF), Assessment of the Damage to Biodiversity in Protected Areas of the Federal Republic of Yugoslavia (10 1999) p. 20Google Scholar.

46. See for instance Arkin, W.M., ‘The Environmental Threat of Military Operations’, in Grunawalt, R.J. et al. , eds., Protection of the Environment during Armed Conflict, International Law Studies, Vol. 69 (Newport, R.I. Naval War College 1996) pp. 116–135 at 123 et seq.Google Scholar, discussing the medium and long-term consequences of attacks on Iraqi electrical power production systems.

47. NATO spokesperson as quoted in the BTF Report, supra n. 45, p. 33.

48. Schmitt, loc. cit. n. 33, at p. 113.

49. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New-Zealand/France), Order of 22 September 1995, ICJ Rep. (1995) pp. 288 at 306, para. 64Google Scholar.

50. Legality of the Threat or Use of Nuclear Weapons, supra n. 23, para. 32. In the context of the Iran-Iraq War, the Security Council called on the parties ‘to refrain from any action that may endanger […] marine life in the region of the Gulf’. SC Resolution 540 (1983) para. 5.

51. Legality of the Threat or Use of Nuclear Weapons, supra n. 23, para. 29.

52. Kiss, A. and Shelton, D., International Environmental Law (Ardley-on-Hudson, NY/London, Transnational Publishers/Graham & Trotman 1991) p. 121Google Scholar.

53. Trail Smelter case (US/Canada), Award of 11 March 1941, III UNRIAA, pp. 1965 at 1965; also Corfu Channel case (U.K./Abania), Judgment of 9 April 1949, ICJ Rep. (1949) pp. 4 at 22Google Scholar. The principle has been reiterated in several sectoral international environmental conventions.

54. Principle 21, Declaration on the Human Environment, supra n. 4. See Handl, G., ‘State Liability for Accidental Transnational Environmental Damage’, 74 AJIL (1980) pp. 525 at 528–529CrossRefGoogle Scholar; Kiss and Shelton, op. cit. n. 52, at p. 130; Arsanjani, M.H. and Reisman, W.M., ‘The Quest for an International Liability Regime for the Protection of the Global Commons’, in Wellens, K., ed., International Law: Theory and Practice. Essays in Honour of Eric Suy (The Hague, M. Nijhoff 1998) pp. 469–492 at 471–472Google Scholar.

55. Wolfrum, R., ‘Purposes and Principles of International Environmental Law’, 33 GYIL (1990) pp. 308–330 at 310Google Scholar.

56. Trail Smelter case (US/Canada), supra n. 53, p. 1965.

57. Wolfram, loc. cit. n. 55, p. 311.

58. Sachariew, K., ‘The Definition of Thresholds of Tolerance for Transboundary Environmental Injury under International Law: Development and Present Status’, 37 NILR (1990) pp. 193–206 at 196CrossRefGoogle Scholar.

59. Legality of the Threat or Use of Nuclear Weapons, supra n. 23, para. 30.

60. Momtaz, loc. cit. n. 12, p. 208; David, E., ‘La guerre duGolfe et le droit international’, 20 RBDI (1987) pp. 153–183 at 165Google Scholar; Antoine, P., ‘Droit international humanitaire et protection de l'environnement en cas de conflit armé’, 82 IRRC (1992) pp. 537–558 at 539Google Scholar; Simonds, loc. cit. n. 8, at pp. 192–193 (citing a report by M. Bothe, A. Cassese, F. Kalshoven, A. Kiss, J. Salmon and K. Simmonds, La protection de l'environnement en temps de conflit armé, Commission des Communautés européennes, Doc. interne SJ/110/85); Tarasofsky, loc. cit. n. 38, at p. 69; von Heinegg, W. Heintschel and Donner, M., ‘New Developments in the Protection of the Natural Environment in Naval Armed Conflicts’, 37 GYIL (1994) pp. 281–314 at 301Google Scholar.

61. Momtaz, loc. cit. n. 12, at pp. 208–209; B.A. Harlow and M.E. McGregor, ‘International Environmental Law Considerations During Military Operations Other Than War’, in R.J. Grunawalt et al., eds., op. cit. n. 46, pp. 315–332 at 316–317.

62. Baker, loc. cit. n. 24, at pp. 354–355.

63. Classical international law rested on the theory that all treaty relations between belligerents were severed by the outbreak of hostilities. A concurrent view has been the maintenance of treaty relationships, except for those the performance of which would be manifestly incompatible with a state of war, for instance, treaties of friendship and trade or treaties of alliance. See in general, Delbrück, J., ‘War, Effects on Treaties’, in Bernhardt, R., ed., Encyclopedia of Public International Law, Vol. 4 (Amsterdam, North-Holland 1982) pp. 310–315Google Scholar; McNair, A., The Law of Treaties (Oxford, Clarendon Press 1961) pp. 695–728Google Scholar.

64. Art. 73 of the Vienna Convention on the Law of Treaties (1969) simply states that ‘the present Convention shall not prejudge any question that may arise in regard to a treaty from […] the outbreak of an armed conflict.’

65. Delbrück, loc. cit n. 63, pp. 311–312.

66. Some conventions do take into consideration the effect of hostilities either implicitly or explicitly, or cover military activities, although these are rather the exception than the rule. Some conventions explicitly allow for their suspension in case of war or other hostilities (e.g., International Convention for the Prevention of Pollution of the Sea by Oil (1954), Article XIX (but it was superseded by the MARPOL Convention (1973/1978) which does not contain such a provision)); others exclude military activities or objects from their scope of application. Treaties that establish civil liability regimes generally exclude compensation for damage occurring as a result of war of armed conflict. Other conventions do not explicitly cover military activities but states have agreed to apply the provisions applicable to such activities as far as practicable: Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972), Article VII; Vienna Convention on Early Notification of a Nuclear Accident (1986). See Shaw, M.N., International Law, 4th edn. (Cambridge, Cambridge University Press 1997) p. 622Google Scholar; United Nations Convention on the Law of the Sea, 7 October 1982, UN Doc. A/CONF.62/122 and Corr., Article 236; Heintschel von Heinegg and Donner, loc. cit. n. 60, at p. 299.

67. Birnie, P. and Boyle, A.E., International Law and Environment (Oxford, Clarendon Press 1992) p. 129Google Scholar. See also Morris, V., ‘Protection of the Environment in Wartime: The United Nations General Assembly Considers the Need for a New Convention’, 27 The International Lawyer (1993) pp. 775–782Google Scholar, who summarizes the views expressed in the debates in the Sixth Committee of the General Assembly in 1991 and 1992. In the Nuclear Weapons Advisory Opinion, the Court did not find it necessary to solve the issue, Legality of the Threat or Use of Nuclear Weapons, supra n. 23, para. 30.

68. Protection of the environment in times of armed conflict, supra n. 19, para. 56. Also, Report of the Secretary-General on the protection of the environment in times of armed conflict, UN Doc. A/48/269 (29 July 1993), at p. 15, para. 76.

69. Baker, loc. cit n. 24, p. 357; P. Szasz, ‘Comment: The Existing Framework, Protecting the Environment During International Armed Conflict’, in Grunawalt et al., op. cit. n. 46, pp. 278–287 at 281; Akande, D., ‘Nuclear Weapons, Unclear Law? Deciphering the Nuclear Weapons Advisory Opinions of the International Court’, 68 BYIL (1997) pp. 165–217 at 184Google Scholar.

70. Birnie and Boyle, op. cit. n. 67, at p. 129; Verwey, W.D., ‘Observations on the Legal Protection of the Environment in Times of International Armed Conflict’, 7 Hague YIL (1994) pp. 35–52 at 46Google Scholar.

71. The Vienna Convention for the Protection of the Ozone Layer, for instance, obliges the Parties to ‘take all appropriate measures…to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer’. Convention on the Protection of the Ozone Layer, Vienna, 22 March 1985, in force 22 September 1988, UN Doc. UNEP/IG.53/5 (1985), reprinted in 26 ILM (1987) p. 1529, Art. 2Google Scholar. Similarly, the UN Convention on the Law of the Sea provides, for instance, that ‘States shall take […] all measures […] that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities […]’. UN Convention on the Law of the Sea, supra n. 66, Art. 192(1).

72. Report of the Secretary-General on the protection of the environment in times of armed conflict, supra n. 18, p. 7, para. 34.

73. Cameron, J. and Abouchar, J., ‘The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment’, 14 Boston College Int. & Comp. LR (1991) pp. 1–27 at 3Google Scholar.

74. See Dinh, Nguyen Quoc, Daillier, P. and Pellet, A., Droit international public, 6th edn. (Paris, LGDJ 1999) p. 1255Google Scholar.

75. Sands, P., Principles of International Environmental Law, Vol. 1, Frameworks, Standards and Implementation (Manchester, Manchester University Press 1994) p. 209Google Scholar.

76. Sands, ibid. pp. 212–213; see also Cameron, J., ‘The Status of the Precautionary Principle in International Law’, in O'Riordan, T. and Cameron, J., eds., Interpreting the Precautionary Principle (London, Earthscan 1994) pp. 262–289Google Scholar, passim. Birnie and Boyle, op. cit. n. 67, at p. 98, emphasizing the varying interpretations of the principle, doubt that it is ‘a principle of international law’; also Gündling, L., ‘The Status in International Law of the Principle of Precaution’, 5 IJ Est. & Coastal L (1990) pp. 23–30 at 29–30CrossRefGoogle Scholar; see Cameron, ibid., for a review of doctrinal views on the customary status of the principle. The EC Commission observed that the ‘principle has been progressively consolidated in international environmental law, and so it has since become a full-fledged and general principle of international law’. Commission of the European Communities, Communication from the Commission on the Precautionary Principle, 1 COM (2000) p. 11Google Scholar.

77. Sands, op. cit. n. 75, at p. 212. The approach is used, inter alia, with regard to the disposal of low-level radioactive waste at sea in the Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22 September 1992, reprinted in Sands, P.et al, eds., Documents in International Environmental Law, Vol. IIA (Manchester, Manchester University Press 1994) p. 472Google Scholar, Art. 2(2) and Annex II, para. 3. The moratorium on commercial whaling could also be viewed as based on this version of the precautionary principle. Birnie and Boyle, op. cit. n. 67, at p. 98.

78. Art. 36, AP I.

79. Szasz, loc. cit. n. 69, at p. 282.

80. Tarasofsky, loc. cit. n. 38, at p. 74.

81. UNEP Governing Council, Resolution 16/11B of 31 May 1991, para. 2.

82. Supra n. 30, p. 222, n. 110.

83. Rio Declaration (1992) supra n. 26, Principle 18; ILA Montreal Rules of International Law Applicable to Transfrontier Pollution (1982) Art. 7; United Nations Convention on the Law of the Sea (1982) supra n. 66, Art. 198; Convention on Early Notification of Nuclear Accidents, Vienna, 26 September 1986, reprinted in 25 ILM (1986) p. 1370Google Scholar, Art. 1; Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, reprinted in 31 ILM (1992) p. 822, Art. 14Google Scholar.

84. Kiss, A., ‘Activités scientifiques et techniques et devoir d'information en droit international’, in Droits et liberiés à la fin du XXe siècle. Influence des données économiques et technologiques: Etudes offertes à Claude-Albert Colliard (Paris, Pedone 1984) pp. 273–288 at 279Google Scholar; Birnie and Boyle, op. cit. n. 67, at pp. 1054–1058; Sands, op. cit. n. 75, at pp. 698–699.

85. Decision-Recommendation of the OECD Council Concerning Provision of Information to the Public and Public Participation in Decision-Making Processes Related to the Prevention of, and Response to, Accidents Involving Hazardous Substances, OECD Doc. C(88)85 (Final) (1988), reprinted in 28 ILM (1989) p. 278Google Scholar; Convention on the Transboundary Effects of Industrial Accidents, Helsinki, 17 March 1992, not in force, reprinted in Sands, P. et al, eds., Documents in International Environmental Law, Vol. IIB (Manchester, Manchester University Press 1994) at p. 1351Google Scholar, Art. 9; Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Århus 25 June 1998, not in force, reprinted in 38 ILM (1999) p. 517, Art. 5Google Scholar.

86. Guerra and others v. Italy, Judgment of 19 February 1998, ECHR Rep. (1998) Vol. I, para. 60Google Scholar; also McGinley and Egan v. United Kingdom, Judgment of 9 June 1998, ECHR Rep. (1998) Vol. III, para. 101Google Scholar.

87. Simonds, loc. cit. n. 8, at p. 197.

88. In the Corfu Channel Case, supra n. 53, the ICJ based itself on such a ground to establish that Albania had an obligation to warn British warships of a minefield in Albanian territorial waters exposing them to imminent danger. In the case of Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US), Judgment of 27 June 1986, ICJ Rep. (1986) p. 14Google Scholar, the Court condemned the US for not having issued warning or notification of the laying of mines in Nicaraguan ports (para. 215).

89. Art. 57(2) AP I. Other provisions that require parties to give warnings include Art. 19 GC IV and Art. 13 AP I (loss of protection of civilian medical units) and Art. 65 AP I (loss of protection of civil defence buildings).

90. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Certain Conventional Weapons Convention as amended on 3 May 1996), Art. 3(11).

91. In March 2000, after NATO had furnished partial information on the use of depleted uranium during the conflict, UNEP stated:

‘Whilst welcoming the positive co-operation of NATO, the group, […] concluded that despite the additional information there was still insufficient data available on the exact location of the DU ordnance to comprehensively carry out an objective and scientifically based environmental and human health impact assessment in Kosovo.’

NATO confirms to the UN use of depleted uranium during the Kosovo conflict, UNEP Press Release, Geneva, 21 03 2000Google Scholar.

92. UNEP/UNCHS Balkans Task Force, The Potential Effects on Human Health and the Environment Arising from the Possible Use of Depleted Uranium During the 1999 Kosovo Conflict. A Preliminary Assessment (10 1999) p. 15Google Scholar.