Protection Of The Natural Environment In Relation To International Armed Conflicts Under International Law

The protection of the environment in relation to armed conflicts is becoming an increasingly serious issue in the international community.Since 2013,it has already been included in the International Law Commission’s program of work under the United Nations.However,since this is a crossing field that combines environment protection and armed conflicts,the international community still not yet have an overall and comprehensive research and regime to protect countries suffered environmental damage because of armed conflicts.There are international authorities relevant to this topic but they are fragmented,vague and their elements of applications are not clear.The purpose of the paper is to research on the current international law regime,find out relevant rules that may be applicable,identify and clarify the main international law issues in applying those rules from a practical perspective,and try to fill the gaps and provide strategies under international law.The paper concluded an initial framework of the protection of the environment in relation to armed conflicts based on the current international law.This framework mainly depends on International Humanitarian Law(“IHL”),with the supplement of International Environmental Law(“IEL”)and International Criminal Law(“ICL”).Besides for these three international authorities,the paper also supplemented the framework with jus ad bellum as pre-conflict basis and post-conflict basis based on international cases.Based on this framework,the paper discussed the main international issues,the gaps and the strategies to solve the issues.The paper analyzed the main issues in applying the current law into environment,clarified the elements and standards of application,found out deficiencies and provided suggestion on improvement.With regard to research methods,the paper is mainly based on practical research and analysis.In collecting the relevant treaties,customary law and cases,the paper mainly relies on an examination and interpretation of primary legal texts.To better understand and clarify the application of the above rules,the paper also depends on a wide variety of secondary legal sources,for example scholars’ opinions.Those secondary sources are also used to identify the deficiencies of the regime and provide practical solutions for it.The paper also involves a comparative analysis of different rules,for example the comparison between the 1976 ENMOD Convention(ENMOD)and Additional Protocol I to the 1949 Geneva Conventions(AP I),and of different branches of law,for example the overall comparison among IHL,IEL and ICL.Case studies and analysis are also involved when analyzing several of the International Court of Justice(“ICJ”)cases and opinions,as well as other UN practices in order to get to a conclusion.As the main authority that applies in armed conflicts,the IHL has several treaty law and custom law to deal with this issue.The 1976 ENMOD Convention as the first one prohibits the use of environment as a means of weapon.However,the paper concluded that “environmental modification technique” is the only situation that ENMOD applies,as it does not apply to actions damaging the environment directly or incidentally with other means of weapon.The paper analyzed the three elements that need to be fulfill for a violation of the Convention: military or other hostile intent,environment modification technique,and damage to other states that is“widespread,long-lasting or severe”.The ENMOD standard is quite clear compared to other treaties.However,ENMOD has very limited application,and it does not provide effective regime of state responsibility in the text.Article 35(3)and Article 55 of AP I supplement the ENMOD in a way that protects the natural environment generally.These two articles prohibit the use of methods that is expected to cause widespread,long-term and severe damage to the natural environment and the targeting of the natural environment as reprisal.The paper concluded that they are groundbreaking for AP I as they jump out of the framework that only protects civilians and civilian objects,instead they protect the natural environment independently,both direct damage and incidental damage.However,by comparing AP I and ENMOD,the paper concluded that AP I is different from ENMOD as specific intention is not necessary in AP I because an objective standard.AP I also has higher standard than ENMOD as the “widespread,long-term and severe” damage it requires has to be fulfilled all together,and the specific meaning of them are higher than ENMOD.The paper concluded that“long-term” in AP I based on the current international regime should be “decades”.However,the paper cannot conclude on the interpretation of “widespread and severe” in AP I as they are even vaguer and more controversial than ENMOD,which needs more clarification in the future.In applying the three general principles of IHL – the principle of distinction,the principle of necessity and the principle of proportionality,the paper discusses the elements of them and the core issues in each principle when they are applied to the natural environment.For principle of distinction,the paper argues that the environment should be civilian object under AP I.Actions should be taken to distinguish military objective and the environment in armed conflicts.The direct targeting of the environment should be strictly prohibited unless the environment loses its status of protection.The hostility rules apply to the environment as when it is used for military purpose or provide military advantage,it becomes military objective and can be attacked.For principle of necessity,the core issue is whether the environment should be considered a factor in measuring the military necessity.The answer should be yes.Therefore,the military necessity applies to an action that might cause environmental damage.An action that damages the environment directly or incidentally violates the IHL if it is not justified by military necessity.For principle of proportionality,there are three issues that are controversial:the assessment of environmental damage,the measurement of military advantage,and the balancing test between the damage and the advantage.These three issues relate to the situation that is most common in armed conflicts – that the environmental damage is collateral damage.The paper supports the ICRC opinion that military advantage should be limited to those “substantial and relatively close”rather than those hard to be percept and those that are long term advantages.For commander’s obligation of damage assessment,the paper suggests the ICRC and ICTY’s approach that a reasonable commander’s standard at the time of attack should be the main rule.For specific rules of this approach,domestic case law can be good experiences for us to borrow.In addition,the principle of precautions in attack supplements the principle of proportionality as it lists different precautions to be taken in armed conflicts.For the situation of attacking environmental-sensitive infrastructure that might cause damage to the environment indirectly,the paper argues that the collateral damage rules still apply.Besides IHL,IEL and ICL as supplements are also examined and discussed in the paper.IEL provides very few treaties that is applicable in armed conflicts.Because those treaty rules protecting the environment in armed conflicts is so general and fragmented,the paper believes that IEL treaties may not help much on the topic.For customary law,the Prevention principle may apply to armed conflicts,but the limitation is that it has a transnational or cross border requirement,and it has to be applied with other international law or domestic law,which means that it cannot be an individual legal basis.For ICL,because Article 8(2)(b)(iv)of the Rome Statute includes the damage to the nature environment as a war crime and it establishes personal liability under the International Criminal Court(“ICC”),ICL is the most promising authority to supplement IHL.The paper analyzed the elements of Article 8(2)(b)(iv)and compares it with AP I and listed three differences of their application elements.The paper also used one chapter to discuss two special regimes with three international cases that protect the environment with authorities in a pre-conflict period and post-conflict period.The Kuwait v.Iraq case started the practice to use jus ad bellum to hold countries liable for environmental damage in the UN Security Council.The Congo case established the possibility to hold an occupying country liable for its damaging of natural resources based on its duty of vigilance under Article 43 of the Hague Regulations of 1907.The Palestine Wall Advisory Opinion shows ICJ’s opinion that international human rights treaties can also be the basis for the protection of the environment in a post-conflict period.The paper concluded that,pre-conflict basis and post-conflict basis,supplements the during-conflict basis authorities and thus providing us with a broader and more flexible path to solve the issue.Finally,the paper concluded that the current international regime provides with us a quite comprehensive and existing legal framework to protect the natural environment.Both treaty law,customary law and international cases have provided basis and precedents for this issue.However,some of the standards of application needs more clarifications,and its subsidiary mechanisms need more developments.Clarification of the standard terms “widespread,long-term and severe damage” is a must as this is the core issue for application of the AP I and Rome Statute.To better apply the IHL,we need to discuss more on how the customary law under IHL especially the principle of proportionality applies to natural environment.Based on the experiences of actual cases,clarification of the standard of damage assessment and military advantage is also significant as it helps to apply both the treaty law and custom law under IHL and ICL.The contribution of IEL and the accompanying law to support the Trial Smelter Principle should be further developed.The use of jus ad bellum in a pre-conflict period and international treaties in a post-conflict period to provide a more flexible path also deserves more research and practices by the international community.