ENMOD: Dead Letter or Environmental Lifeline?
Editors’ note: This post is derived from the author’s article published in issue 118(3) of the American Journal of International Law.
There is little denying that the world is fragile and battered. While our natural environment is resilient, it has been stretched to breaking point through exploitation and destruction across numerous areas of human endeavour. Our ingenuity has, unfortunately, often been turned to destruction; nowhere is this more evident than when applied to military purposes, both during armed conflict, and in anticipation of possible hostilities. The natural environment is often a “casualty of war,” and one which is not well protected by the law of armed conflict.
For decades, the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) has been assumed to be directed not at the large-scale environmental destruction of past wars, but solely at preventing the development and deployment of radical new technologies capable of replicating natural disasters as a form of weapon. Numerous academic perspectives as well as those of the International Committee of the Red Cross (ICRC) appear to reflect this view. For example, the ICRC’s ENMOD fact sheet notes that ENMOD “prohibit[s] the deliberate manipulation of natural processes that could produce phenomena such as hurricanes, tidal waves or changes in climate.” If all ENMOD does is prevent us from creating new superweapons that rely on harnessing natural power, then ENMOD currently protects the environment from intentional destruction only at the theoretical level.
The Traditional View of ENMOD
This general understanding of ENMOD is based on Article II, which defines “environmental modification techniques.” The Article II definition sets the scope of the Convention as governing “any technique for changing—through the deliberate manipulation of natural processes—the dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.” Such techniques are prohibited, under Article I, if they are: 1) put to military or hostile use; and 2) the means of causing “widespread, long-lasting or severe damage” to other States parties.
The inclusion of “manipulation of natural processes” in the Article II definition has often been the sticking point for ENMOD’s potential relevance. The common interpretation holds that unless the natural process itself is wielded as a weapon, there’s no way an activity designed to cause environmental damage can contravene ENMOD. On this understanding, ENMOD’s application requires that “the natural process is the instrument harnessed (as a weapon) for wreaking havoc.”
This interpretation is often supported by a set of “understandings” created by the Committee of the Conference on Disarmament to accompany the draft Convention, which gave examples of possible environmental modification techniques. These included phenomena like earthquakes, tsunamis, and changes in weather patterns. This certainly made it appear that ENMOD is only concerned with techniques capable of causing immense, large-scale damage akin to a natural disaster.
This threshold, if accurate, makes ENMOD seem pointless, even leaving aside the fact that such methods remain science fiction. The artificial creation of an earthquake or tsunami, or other inherently uncontrollable and immensely destructive event, would almost certainly be counter to other rules of international humanitarian law; rules which were very much strengthened, only a year after ENMOD was opened for signature, by the 1977 first Additional Protocol to the 1949 Geneva Conventions.
A Critique of the Criticism
However, it is notable that the ‘Understanding relating to Article II’, as well as being expressly non-exhaustive, limits the examples given to environmental modification techniques which would necessarily violate ENMOD as a whole. There is nothing in the actual wording of Article II, under an orthodox treaty interpretation approach, to suggest such an improbably high threshold for ENMOD’s application. In fact, the notion of “widespread, long-lasting or severe damage,” for the purposes of ENMOD, is quite a low threshold (encompassing, for example, an impact of any severity which lasts more than a few months, or serious harm to “economic resources or other assets”). The disjunctive phrasing creates a sharp contrast to the similar wording in Articles 35 and 55 of Additional Protocol I, which prohibit “widespread, long-term and severe damage.” The Official Records of the Diplomatic Conference make clear that for all three of these criteria to be met, in the context of Additional Protocol I, would require truly devastating environmental destruction.
The biggest threat to the natural environment in armed conflict is likely not speculative new technologies, but the destructive implementation of old ones. The environment may, of course, be subject to incidental, collateral damage, but ENMOD is not concerned with this, being aimed at controlling “deliberate” instances of environmental modification. Yet the natural environment has often been intentionally destroyed or changed as part of a military campaign. One of the most egregious examples occurred during the Vietnam War, when the United States used millions of litres of “rainbow herbicides,” in particular Agent Orange (together with mechanical ploughs) to destroy the jungles of Vietnam.
Is it really the case that a Convention which sought to prohibit “environmental modification” for military or hostile purposes would not have prohibited such a tactic?
The Problem of Herbicides for the Traditional View
As discussed above, many academic interpretations would put control of herbicides decidedly outside ENMOD’s scope. Poisoning vegetation, no matter the scale, is an example of simple damage to the environment, and not a case of a natural process itself causing destruction. Regardless of this interpretation, it is in fact beyond doubt that ENMOD prohibits widespread military use of herbicides.
The delegates to the Second Review Conference, held in 1992, concluded that:
[T]he military or any other hostile use of herbicides as an environmental modification technique in the meaning of Article II is a method of warfare prohibited by Article I if such use of herbicides upsets the ecological balance of a region, thus causing widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State party.
A General Assembly resolution in the same year then confirmed this understanding. The prohibition on widespread use of herbicides has since appeared in numerous State military manuals.
In fact, the preparatory work for ENMOD had already made this perfectly clear. The United States and Soviet Union delegations were responsible for putting forward the draft Convention in the Conference of the Committee on Disarmament and created the original text. In response to a query from the UK delegate about whether the proposed prohibition could apply to herbicides, the U.S. delegate confirmed that “[i]n our view, the convention would prohibit such use of herbicides as the means of destruction, damage or injury if the effects were widespread, long-lasting or severe. An upset of the ecological balance of a region through the use of such techniques would be, at a minimum, a widespread effect.” This statement was the justification asserted by the Second Review Conference to support the conclusion that herbicides could fall within ENMOD’s scope.
A Generalisable Rule?
The use of herbicides was not the only low-tech means specifically raised by delegates to the ENMOD drafting conferences. Other examples included intentional burning of vegetation, mechanical destruction of surface area, causing flooding or diversion of rivers, pollution of the ocean, and even introduction of invasive species. While ENMOD certainly was supposed to prevent the development and use of futuristic methods of changing our environment for hostile purposes, it was also intended to apply to control the use of methods which had been employed by armed forces since antiquity.
The Second Review Conference could not, however, reach a State consensus on ENMOD’s application to other low-tech methods for imposing environmental damage as a method of warfare. Although the Second Review Conference did not generate full records of meetings, according to the Canadian delegate to the Second Review Conference, some States wanted to assert that ENMOD was “a futuristic document which covered exotic technologies yet to be invented” and yet also governed “the use of herbicides, a decidedly low-technology environmental modification technique.” This is, as she took pains to point out, a rather absurd view. There is simply nothing in ENMOD’s text that creates a carve-out solely for herbicides. If ENMOD does apply to limit hostile and military use of herbicides, then it must also prohibit the use of other low-tech means of causing intentional environmental damage where the effect is similarly widespread, long-lasting or severe. This could encompass techniques from intentionally setting fires, to triggering avalanches, to poisoning water sources.
The U.S. delegate’s response on the issue of herbicides raises another key point. One of the potential outcomes highlighted in the understandings for when an “environmental modification technique” would violate ENMOD is when such a technique causes “an upset in the ecological balance of a region.” It is now very clear that this outcome could easily result from intentional military or hostile change to the environment, especially given the low thresholds for duration, spread and severity in order for such an impact to contravene ENMOD.
Contraventions and Enforcement
There are numerous examples of military and hostile activity in recent years which may have overstepped the ENMOD prohibition. As just one example, the creation of artificial islands in the South China Sea to accommodate military bases causes major damage to natural reefs and depletion of fish stocks in an area which is already under serious environmental pressure. Could this breach ENMOD? Although the Philippines is not party to the Convention, both Vietnam and the Peoples Republic of China (PRC) are. If the PRC’s construction of military bases on natural reefs was intended as an environmental modification for military purposes and caused widespread, long-lasting, or severe loss to Vietnam’s economic and natural resources, the answer is quite possibly yes.
Like much of international law, the problem of enforcement may prevent ENMOD from having any practical impact, regardless of how it is interpreted. Under Article 5 of ENMOD, contraventions are supposed to be reported to the UN Security Council (UNSC) for response. But if the State causing relevant environmental damage is a permanent member of the UNSC, such as the PRC, or if a permanent member has a particular political interest in the actions of the responsible State, it is unlikely that any enforcement action would be taken.
The fact is, however, that international law is often largely an honour system. States generally want to appear to comply with international law, and other States adopt various approaches to encourage such compliance. The existence of a black-letter law reason why a State should not proceed with a certain course of action will not necessarily prevent it from doing so. But it could have that effect if other States, international organisations, or major global corporations affected by such activities are willing to speak out about ENMOD violations.
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Joanna Jarose is a PhD Candidate and Sessional Lecturer at the University of Adelaide Law School, Adelaide, Australia.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: SAC Phil Major RAF/MOD
