AN APPRAISAL OF THE LEGAL FRAMEWORK FOR INTERNATIONAL ENVIRONMENTAL PROTECTION UNDER

AN APPRAISAL OF THE LEGAL FRAMEWORK FOR INTERNATIONAL ENVIRONMENTAL PROTECTION UNDER

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Chapter One:

General Introduction

1.1       Historical Background

In modern times, the legal framework for environmental protection during armed conflict i.e. environmental law of warfare, is broadly divided into Principles of Customary International Humanitarian Law of warfare and the treaty provisions of international humanitarian law. The evolution of environmental law of war dates back to period when some basic principles of international humanitarian law were developed. Some of these international humanitarian law principles are that the right of states to use method and means of warfare is not unlimited, the principle of humanity and public conscience popularly known as the Martens Clause, principle of distinction, military necessity and proportionality. The relevance of the principles customary international humanitarian law (IHL) lies in the fact that it binds all states as a general principle accepted as binding, by all nations. Thus, customary IHL is very effective as it does not depend on the consent of state before it become operative.

Despite this advantage, it could not prevent the horror and massive destruction of lives and property experienced during armed World War II. The experiences acquired from successive armed conflicts brought to light the inadequacy of the principles of International Humanitarian Law and the need for a more comprehensive legal regime to protect the environment during armed conflict. This brought out the establishment of various Conventions such as the 1899 Hague and 1907 Hague Conventions, the

Four Geneva Conventions of 1945 and the Two Additional Protocols to the Geneva

Convention of 1977, just to mention but a few.

However, it must be pointed out at this junction that it was not until 1977 through the Additional Protocol I and II that the environment was specifically made an object of protection during armed conflict. In fact, all provisions effort at regulating means and methods of warfare are targeted at protecting the civilian and to reduce human suffering. Thus, effort at protecting the environment during armed conflict through the instrumentality of the international humanitarian law was rather indirect or collateral.

Yet the existence of environmental law of war could not prevent massive destruction of vegetation by the U.S. army during the Vietnam War, could not prevent the attempt by the U.S. to modify the environment to gain military advantage.

The consequences of armed conflict today have gone far beyond human suffering, displacement and damage to infrastructure and homes. Armed conflicts also cause environmental destruction and degradation.

Environmental destruction or degradation or both during wartime whether deliberately or inadvertently done, have been part of war since ancient times. As early as 146 BC, Roman troops razed the city of Coutlage and salted the surrounding earth to sterilize soil.[1]Thus environmental damage in wartime has for decades been recognized as one of the most immediate threats to human existence. This is because the destruction associated with armed conflict spills over to the natural resources such as water, agricultural land, trees and wildlife. The destruction during armed conflict can undermine human survival, act as a driver of poverty and forced migration.

Due to technological advancement, nations have the capability and potential to destroy large areas in a matter of seconds, and such destruction to the environment could be irreversible and for others, it could take many decades to recover. Few examples will suffice. Today, some battlefields of the World War I and World War II remain unfit for cultivation or dangerous to the population because of the unexploded mines and projectile still embedded in the soil.[2]During the Vietnam War, the United States   instituted operation Ranch Hand for the purpose of destroying vegetation used by the enemy as cover and as a source of sustenance. It has been estimated that the chemical based incendiary weapons, such as Agent Orange, have caused destruction of eight percent of the regions crop lands, fourteen percent of its forests, and half of its swamp areas.[3]

During the Persian Gulf War, it was reported that the Iraq Forces set fire in more than 160 oil installations. One report suggested that the fires released numerous toxins, including the emission of sulphur dioxide and hydrogen sulphide from the burning oil field. The ensuing oil slick devastated the coral reef communities disrupting the sensitive ecological system[4].

More recently, in 1999 dozens of industrial sites were bombed during the Kosovo conflict, leading to toxic chemical contamination at several hotspots. In another example, an estimated 12,000 to 15,000 tons of fuel oil were released into the Mediterranean Sea following the bombing of the Jiyeh power station during the conflict between Israel and Lebanon in 2006.[5]

Armed conflict apart from having direct impact on the environment, the environment may equally suffer indirect consequence from armed conflict. For example, overexploitation and illegal exploitation of natural resource particularly high valued resources have been on the increase in recent years to generate revenue for financing armed forces and acquisition of weapons. A report had it that since 1990, at least eighteen civil wars have been fuelled by natural resources.[6]Natural resources like diamonds, timbers, oil, minerals and cocoa have been exploited in internal conflicts in countries such as Democratic Republic of Congo, Cote d’Ivoire, Liberia, Sierra Leone, Angola, Somalia, Sudan, Indonesia and Cambodia just to mention but a few.

In addition to direct and indirect impacts on the environment, armed conflict often weakens already fragile governance structure and causes a disruption of state institutions, initiatives and mechanisms of policy coordination. This in turn creates space for poor management, lack of investment, illegality and the collapse of positive environmental practices. For example, according to national review processes, concessions over natural resources granted during conflicts in countries like Liberia and the Democratic Republic of Congo have lacked legitimacy and often failed to the broader interests of the state.

The foregoing illustrates the direct and indirect as well as the realist potential impact of war on the environment. These impacts increase with technological capability of sates in developing weapon of mass destruction. All these issues suddenly awaken the need to protect the environment that has continued to be the silent victim of armed conflicts.

The evolution of law of armed conflict proceeded without direct consideration of the environment. The Hague Law (regulates method and means of warfare) and the Geneva Law (protects some category of persons and things during (armed conflict) though made oblique reference to the environment.), do not in general tie those prohibitions to the protection of the environment, but to the ultimate impact upon human dignity, survival and welfare. The prohibitions are covered by international human right law and international humanitarian law. These laws represent the desire of the international community at protecting the basic rights of the individual during wartime and peacetime. It was later realized that the rules of international humanitarian law are most often than not, subordinated by military necessity. Thus use of particularly devastating means of warfare could cause a large scale destruction to the environment as to render illusory or even prevent the implementation of provisions to protect the victims of armed conflict.

Although the international community was rudely shaken by the aftermath of the United States environmental devastation during the Vietnam War, it was deliberately

excluded from the 1972 Stockholm Conference on the Human Environment. However, the Stockholm Conference still came up with some declarations that form the bedrock of international environmental law. Though conceived mainly for application in peacetime, they can influence the development of the law for the protection of the environment during armed conflict. Some of these principles are: the obligation for states to avoid causing environmental damage beyond their borders and the obligation for states to respect the environment in general.

Later environmental protection was raised in more specific context of international human right law. It is now recognized that personal growth and happiness cannot be achieved in a severely damaged environment. Thus, right to a healthy natural environment is gaining acceptance as a fundamental human right.[7]

Unfortunately, all these efforts did not prevent environmental destruction during the Persian Gulf War. It was reported that on the 21st January, 1991, the US military in

Kuwait accused the Iraqis in occupation of Kuwait of opening valves at the sea island (Mina al-Ahamadi) oil terminal near Kuwait city and of pumping crude oil into the gulf. Also the coalition bombing and missile attacks resulted in damage to a large number of facilities in including chemical installations, refineries and factories.[8]These destructions to the environment, Iraq’s acts in particular caused a worldwide sense of outrage. That development led to reappearance in the agenda of government, international bodies and others, the need to provide adequate laws to protect the environment in times of armed conflict. In this regard, two significant international meetings where the issues were debated were convened. The first was the London

Conference on a Fifth Geneva Convention on the protection of the Environment in

Time of Armed Conflict of 3rd June, 1991 while the second was the Ottawa

Conference on the Use of the Environment as a Tool of Conventional Warfare of 1012th July, 1991.[9]These conferences have raised awareness on the importance and need to protect the environment during wartime. Yet, to date, there is still no agreement on this topical issues and the environment continues to be the silent victims of modern warfare.

1.2       Literature Review

International environmental law of war is a recent subject of law. Because of the recent nature of the subject of this research, not much text or journal publications exist in it. The few works that exist to the limited knowledge of this writer on the subject of research are examined here.

Prof. Brauer while writing on the topic: The Effects of War on the Natural Environment discusses extensively, the direct and induced effect of war, on the natural environment,[10]and came to the conclusion that among human activities, by far the most damage to the natural environment is wrought not by war, but by peacetime commerce. His preoccupation was a comparison between peacetime commerce and war which is more damaging to the environment. This being his concern, the paper did not consider environmental damage occasioned by armed conflict materially serious to warrant any legal protection. Williams[11][12]writing under the title land mines. Dealing with the environmental impact concentrates entirely on impact of landmines on human. The paper is devoid almost completely of information on the environmental impact of land mines. Also Westing’s contribution on the environmental aftermath of

Vietnam War deals almost exclusively either with the human impact or with the impact on cultivated environments transmitted to humans.[13]This article deals essentially with the humanitarian aspect of armed conflict. Prof. Barnaby while writing on the environmental impact of Gulf War is similarly empty of actual scientific data on environmental damage assessment. In fact, the article dwells on speculations For example, what could happen and what may happen and what is likely to happen and what will happen to the environment? There is no discussion whatsoever on the actual environmental damage the war has caused.[14]

The point here is that these contributions did not even deliver on the topic chosen by the respective authors i.e. the actual impact of war on the environment not to even talk of identifying or analyzing the legal framework for protecting the environment. Some authors, while discussing the impact of armed conflict on the environment, brims classification of environmental effects of war. These authors are Dahl,[15]LanierGraham,[16]El-baz[17]and Levy.[18]The main draw back with emphasis on classification is that it tends to focus on environmental damages that only have immediate impact on human. These appear to be of no thought of intrinsic or existence value of non-human nature for its own sake. With due respect, Dahl fell into this error.[19]

Jensen’s[20]contribution on the international law of environment warfare focuses on the need to clearly differentiate between active and passive environmental warfare. According to him, active environmental warfare requires the intentional use of the environment as a weapon of waging armed conflict and this violates international law per se, while passive environmental warfare includes acts not specifically designed to use the environment for a particular military purpose but have a degrading effect on the environment and this violates international law only when it produces effects that are widespread, long term and severe. While this distinction may be relevant for the purpose of imposing state responsibility, it is rather too subjective.

Plant[21]in his contribution, attempts to explain viability of a new legal regime to protect the environment during armed conflict. Unfortunately, the work only appears to be the author’s summary of the proceedings on London Conference on “A “fifth Geneva Convention” in the protection of the environment in time of Armed Conflict of 3rd June, 1991 and the Ottawa Conference on the Use of Environment as a Tool for Conventional Warfare of 10-12 July, 1991.

Yuzon[22]in his paper entitled Deliberate Environmental Modification Through the Use of Chemicals and Biological Weapons. Prof. Greening[23]in his article” The

International Laws of Armed Conflict to Establish an Environmentally Protective Regime” focused on the use of chemical and biological weapons in international armed conflicts and concludes that there is need for a fifth Geneva Convention to protect the environment during armed conflict. His analysis was limited to the use of chemical and biological weapons. He failed to analyse the use of conventional weapon in relation to the four Geneva Conventions. Worst still is that his analysis was restricted to international armed conflict. The International Committee of the Red Cross (ICRC)[24]in its contribution on the topic “Environment and Armed Conflict” took the position that the current law is sufficient and should be enforced strictly. Infact, it objected to any attempt at creating a “Fifth Geneva” Convention. This position is quite unfortunate because most of the armed conflicts in modern times are internal rather than international and, the bulk of the existing international legal regime on war regulates international armed conflict.

Prof Greening[25]examines most issues relating to law of armed conflict. Some of the issues include history, sources of law of armed conflict, legality of war, offences, etc. Infact, he discusses environmental impact of war as a crime. While his contribution is relevant to some aspect of the present research such as providing material for the theoretical framework and analysis of concept, the contribution is essentially focused on the humanitarian aspect of war.

From this review, it is quite clear that a great deal of academic research is still required to further enrich the existing literature on the environmental impact of war. For example there is need to clearly identify the adequacy or otherwise of the legal framework for protecting the environment during armed conflict. Who should be responsible? What are the mechanisms for the enforcement of the laws? This research hopes to fill the gaps existing in the literature and to illicit further research in this area.

1.3        Statement of Research Problem

Arising from the literature review are the following problems:

a.                 It is rather difficult to assess the impact of armed conflict on the environment;

b.                 Lack of adequate legal frame work for the protection of the environment during armed conflict; and

c.                 Lack of efficient mechanisms for the enforcement of environmental law of war.

Perhaps, it is beyond dispute that warfare has direct and indirect impact on the environment. Consequently, right from time immemorial, attempts have been made to regulate conduct of hostility. For example in early biblical writing[26], it states “when you are at war, and lay siege to a city for a long time in order to take it, do not destroy its trees by taking the axe to them, for they provide you with food; you shall not cut them down. The trees of the field are not men that you should besiege them …” The

Holy Quran[27]provides that “fight in the way of Allah those who fight you”. The Prophet[28](SAW) in explaining the Islamic rules of conduct of hostilities said: “No wanton killing of livestock and animals, no burning or destruction of trees and orchards. No destruction of wells”.

In modern times, environmental protection at peacetime and during armed conflict has been placed on the agenda of many institutions active in the field of international law.

Their efforts have resulted in the adoption of many rules, principles and treaties. According to the Stockholm Declaration,[29]“man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement in the relevant international organs, on the elimination and complete destruction of such weapons”.  Also, the World Charter for Nature and the Rio Declaration take positions similar to the Stockholm Declaration. As a general principle, the World Charter for Nature[30]dictates that “nature shall be secured against degradation caused by warfare or other hostile activities”. Furthermore, the Rio declaration indicates that international law should guide states to protect the environment in wartime and that states will, when necessary, re-evaluate this framework. Principle 24 of the Rio Declaration[31]provides that “warfare is inherently destructive of sustainable development” and that “states shall therefore respect international law, providing for the protection of the environment in times of armed conflict and cooperate in its further development as necessary”. Although these principles are not binding on states, their adoption and widespread approval by the states indicate, the international community desires to limit the effect of war on the environment. However, Treaty law and customary law of international humanitarian law provide additional binding legal rules on the protection of the environment during armed conflict.

Despite these efforts at protecting the environment during armed conflict, the environment has continued to be the victim of modern warfare. At times, deliberate attempts have been made to manipulate weather with negative consequences on the natural environment to achieve military objectives.[32]The first problem this research investigate is the adequacy or otherwise of legal regime to prevent or limit environmental impact of warfare. Closely related to this, is the question of which international laws directly and indirectly protect the environment during armed conflict. The second problem this research investigates is the mechanisms for the enforcement of legal regime on the protection of the environment during armed conflict. Although the Stockholm Declaration and its progeny have indicated that states must take responsibility for their actions and activities that cause destruction to the environment, questions as to who is responsible for the implementation and enforcement of these standards remain largely obscure.

1.4       Objectives of the Research

The objective of this research work is to find solutions to the problems raised by the statement of the research problems. Specifically, it is also the objective of this research:

1.     To identify the legal framework that directly and indirectly protects the environment during armed conflict.

2.     To examine the problems, if any, to the enforcement and implementation of the legal regimes that protect the environment in wartime.

3.     To enhance access to information on the negative consequences of armed conflict on the environment.

1.5       The Scope of the Research

The scope of this work is determined by the objectives of the research as circumscribed by the research problems. Accordingly, only issues like environmental degradation during war time, laws protecting the environment during armed conflict that help the attainment of the objectives of this research, will be given prominence. Any issue that does not help the attainment of this research will not be considered except where the circumstances demand.

In other words, the scope of this work is circumscribed by it objectives. Thus, international law which includes international human rights law, internation+al environmental law, international humanitarian law, these laws that provide the existing legal framework protecting the environment during armed conflict, will be assessed. Also, individual criminal responsibility for war crime will be examined within the framework of the research problem.

Although the legal provisions contained within the four main bodies of international law identified above will be examined, the scope of the examination and analysis will be limited to specific provisions of the laws that provide direct or indirect legal protection to the environment in times of war. The research is located within the international environment law so, it is expected that territorially, the work should be international. While attempt is made to cite relevant examples across the globe where applicable, most of the examples of the impact of war on the environment are drawn from recent armed conflicts for example, The Persian Gulf War of 1991. The reason for this is that it is the best studied case with relatively good pre and post war data.

Other armed conflicts are deficient in this regard. For this reason and due to space and time constraints, this research focuses only on recent and well studied armed conflicts.

1.6        Research Methodology and Sources of Information

This research adopts doctrinal methodology i.e. content analysis. In other words, treaties, conventions, domestic statutes, case law, maxim and other relevant literature or data will be analyzed. Therefore, this study is largely a library- oriented research.

Also, this research uses both primary and secondary sources. The primary sources here include various Treaties Conventions and Case Laws. The secondary source of data for this research includes the soft laws, published and unpublished work of scholars relevant to the research. These include books, journals, articles, seminar papers, newspapers and other periodicals.

1.7       Justification of the Research

This work is justified by the problems raised by the statement of the problems contained in section 1.3 of this work above. The work is also justified by its relevance to law students, law lecturers and the general public.

While it is an axiom that armed conflict is inevitable, it is equally true that environmental damage is inevitable during wartime, effort is therefore required to be made to ensure that the environmental impact of war is reduced to the barest minimum. This research aims to raise awareness of the fact that damage to the environment during armed conflict degrades the environment long after the period of the conflict, and most often extends beyond the limits of national territories and the present generation. The environment is crucial for ensuring enduring peace and sustainable development. There can be no durable peace if the environment that sustains livelihoods is damaged or destroyed.

Consequently, it is important to strengthen the legal framework that protects the environment during armed conflict. This research is an effort in that direction and therefore very relevant and timely.

1.8        Organizational Layout of the Research

This thesis is divided into five chapters. The first chapter is the general introduction showing among other things, the general introduction of the research and its scope. It also discusses the statement of research problems, significance of the research and the research methodology.

Chapter Two examines the nature and scope of environmental degradation during armed conflict as well as the classification and types of environmental damage occasioned by armed conflicts.

Chapter Three identifies and analyses the legal regimes on the protection of the environment during armed conflict.

Chapter four considers enforcement mechanisms of the legal framework on the protection of the environment during armed conflict. It in addition, examines remedies for environmental damage during war time.

Chapter Five which is the last and concluding chapter of this research, presents the major findings and recommendations of the research.


[1]  Morrison, D.C.,  War on the Environment. Nat’L.J 1991, 2 at 536


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