Protecting the Environment in War: Legal Constraints

Abstract

The primary question examined in this study is the extent to which international law can be expected to mitigate environmental disruption in times of warfare, whether interstate or intrastate (internal). Approaches to protecting the environment from military damage that have legal precedents include: (a) remaining at peace; (b) establishing zones of peace; (c) limiting certain weapons; (d) limiting certain means of warfare; and (e) limiting damage to natural resources. Of the various bodies of international law, neither International Environmental Law nor International Human Rights Law seems directly applicable to the question at hand, whereas International Humanitarian Law (the Law of War), including International Arms Control and Disarmament Law, is. Three relatively recent multilateral treaties can be singled out for their specific relevance to environmental disruption during wartime: (a) 1977 Protocol I on International Armed Conflicts (UNTS 17512); (b) 1980 Land Mine Protocol II of the 1980 Inhumane Weapon Convention [regarding international armed conflicts] (UNTS 22495); and (c) 1977 Protocol II on Non-international Armed Conflicts (UNTS 17513). The first of these has explicitly expanded International Humanitarian Law to encompass environmental concerns per se. A consideration of these three instruments, together with other components of International Humanitarian Law which provide incidental protection to the environment, suggests that existing constraints are about as stringent as is currently feasible, given the state of the underlying cultural norms throughout the world. It is concluded that a state (nation) which becomes party to an International Humanitarian Law treaty does so in good faith and can generally be expected to comply with its strictures. It is noted that a preponderance of the numerous states non-parties to important relevant instruments suffer from some combination of poverty, lack of human or other development, and paucity of basic freedoms. Increased treaty participation, and firmer expectations of compliance, will depend upon a combination of widespread military and civil education to nurture relevant underlying cultural norms on the one hand, and the alleviation of poverty and spread of democratization and integrity on the other. Finally, it is recommended (a) that a treaty be adopted that would prohibit the use in war of nuclear weapons, and (b) that natural heritage sites of outstanding universal value be designated as demilitarized zones.