Transboundary Environmental Protection in Armed Conflict
Editors’ note: This post is drawn from the author’s article-length work, “The International Responsibility of a Belligerent State in the Event of Transboundary Environmental Damage” appearing in the International Review of the Red Cross.
The rules governing armed conflict were first established at a time when concerns about protecting the environment were not yet at the center of the debate. Not until the 1970s was awareness of the issue raised on the sidelines of the war in Viet Nam. An instrumental view of the environment is often taken in this context, meaning that the scope of its protection is often restricted. Articles 35 and 55 of Additional Protocol I of 8 June 1977 illustrate the limited extent of this protection. Today’s international context, including the required transition to a low-carbon economy and the preservation of biodiversity, means that a change in perspective is needed. Evolving techniques and methods of combat have highlighted the gap between the territorial limits set out in the law of armed conflict and the extraterritorial (or transboundary) consequences of war in relation to environmental damage of this kind.
The disasters that followed the Iraqi attacks on Kuwait illustrate this problem. Iraq was found responsible under international law for spilling 700,000 tonnes of oil into Kuwait’s territorial sea over several weeks. The spillage of such large quantities of fuel contaminated the soil and destroyed the biodiversity of other States bordering the Persian Gulf which did not participate in the armed conflict. The military hostilities that followed the break-up of the former Yugoslavia also led to significant environmental damage being later recorded in neighbouring Eastern European countries. A Council of Europe report on the bombing by NATO countries of industrial sites and infrastructure in the Federal Republic of Yugoslavia highlighted the extent of the damage to the environment in States neighbouring the military operations.
The scope of the rules and principles governing the conduct of hostilities remains limited to the methods and means of combat used within the borders of the belligerent States and their environmental consequences within those borders. State practice in this regard seems to be uncertain and imprecise in every respect. Equating environmental damage caused to third States with collateral damage is a plausible extrapolation of the duty of precaution incumbent on the parties to a conflict. It goes without saying that the treaty rules that may be applicable to parties to a conflict do not explicitly address the international liability of a belligerent State that causes transboundary damage to a third party. But State practice provides precedents in this regard, making this liability plausible under customary law.
The Agnosticism of Conventional International Law
The polysemic nature of silence in international law suggests that what is not excluded is not necessarily prohibited. The treaty law applicable during hostilities is in theory indifferent to the outcome of military attacks that cause transboundary environmental damage. Such actions are neither authorized nor prohibited, given the context in which much of the treaty law was established. Nevertheless, the law does not like a vacuum, and in accordance with the spirit of the Martens Clause, certain key principles of the treaty law relating to armed conflict should be interpreted teleologically with regard to this issue.
The extent and scope of principles such as necessity, proportionality, and distinction should guarantee the protection of the environment in armed conflicts, both within the territory of the States concerned and within that of States not taking part in hostilities. Given that parties to an armed conflict have an obligation to prevent the unreasonable effects of attacks, could the principle of precaution, to some extent, provide grounds for the prohibition of transboundary environmental damage caused to a third State, and therefore for the potential international liability of a belligerent?
The environmental damage that may result from the conduct of hostilities is regulated only insofar as it occurs within the territory of the belligerent parties. However, by reinterpreting the rules in a more contextualized manner, it could be that certain fundamental principles of international humanitarian law justify the possibility of State responsibility for environmental consequences affecting a third State.
The main objective of the principles of distinction, military necessity, and proportionality is to regulate the conduct of parties to an armed conflict with a view to protecting civilians, the civilian population, and civilian objects against the harmful effects of war. By extension, and all things being equal, they can also apply to the protection of the natural environment against the consequences of war, including beyond the territories of the parties to the conflict. The cross-border environment can, of course, be included in the category of objects benefiting from protection under the principle of distinction. The fact is that the law requires precision. It matters in this respect to define as precisely as possible the status by which the transboundary environment can be included in the category of civilian property.
It is notoriously difficult to determine the trajectory indicating the scope and extent of environmental damage or the spatial reach of certain environmental modification techniques. Treaty texts that address the geographical extent of environmental damage do not provide a precise definition of the distance indicating the extent of environmental damage. Formally, measures to protect environmental interests against the effects of an armed attack cover only the effects that do not go beyond the belligerents’ borders. Yet, for the sake of caution and under the principle of precaution, it is hard to see why they should not also apply to safeguarding the natural environment, and infrastructure and works containing dangerous forces located outside the enemy territory. It makes sense to interpret Article 57 of Additional Protocol I to the Geneva Conventions as being consistent with the prohibition of transboundary damage in times of armed conflict.
The law applicable in these circumstances could be disputed given the ratione materiae scope of humanitarian law. Article 49 of Additional Protocol I sets out the attacks to which the rules concerning the protection of the civilian population apply. However, Article 49(2), which refers to “all attacks in whatever territory conducted,” opens up the prospect of extending the rules to extraterritorial situations. It appears that the phrase “in whatever territory conducted” is intended to cover a geographical range that includes all territories of the opposing parties within the territorial scope of an armed conflict. It also encompasses the space in which hostilities are taking place (land, air or sea). The provisions of Article 49 specify the context in which the attack occurs, which is essentially an armed conflict.
The principle of precaution also calls for the effects of the attack to be prevented, through the adoption of precautionary measures. When applied to the protection of environmental interests, the measures supposedly adopted to guard against attack only concern ecological damage resulting from a conflict situation whose effects do not extend beyond the border lines. It is logical that these precautionary measures should spare, in particular, the natural environment and installations and structures containing dangerous forces located beyond enemy territory. Article 57 of Additional Protocol I does not in itself address the reality of transboundary damage, but it can address it. Furthermore, recommending the adoption of certain precautionary measures, including passive precautions, as set out in Article 58 of Additional Protocol I, would in this case require the third State (victim) to prevent attacks emanating from an armed conflict to which it is not a party, which is logically inconceivable.
Drawing on International Custom
Other sources can offset the limitations of international treaty law in the area under discussion. It is worth mentioning here that the principles of prevention and neutrality that form part of the law of armed conflict stem from customary law. Both require parties to use their best endeavours during war to ensure respect for third parties considered neutral and to protect them from the consequences that may arise as a result of the conflict. The need for prevention has not yet been awarded the status of a rule under international humanitarian law, but it is nevertheless considered to be a general principle of law. Accordingly, it can arguably be invoked to fill the gap in the normative framework relating to transboundary environmental damage.
The principle of neutrality is enshrined in Article 1 of Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land and in Article 1 of Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War. Under this principle, what is not permissible within the territorial limits of the parties to the conflict should be no less permissible within the borders of third parties that can be considered neutral States. It is in this sense that some authors, relying on the International Court of Justice (ICJ) Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, consider that “the principle of neutrality applies with equal force to transborder incursions by armed forces and to transborder damage caused to a neutral State by the use of a weapon in a belligerent State.”
The no-harm rule, whereby States are prohibited from using their territory in a way that will cause harm to a third State or to the environment beyond national jurisdiction, is enshrined in customary international law. It is covered by the maxim sic utere tuo ut alienum non laedas. Concerning environmental protection, the no-harm rule offers a preventive approach rather than the remedial, or rather curative, function of the law. The main question is whether this principle can be transposed, particularly when it comes to damage resulting from armed attacks that have repercussions beyond the borders of belligerent States.
It is said that the same causes produce the same effects. The principle of preventing harm caused by the sovereign use of a State’s territory was established in international law as a result of the Trail Smelter Arbitration, a matter arising from a cross-border legal dispute between the United States of America and Canada. The resulting arbitration was based on the legal scope of the environmental consequences of Canada’s use of its territory in a way that was harmful to the United States. The arbitral award, dated March 11, 1941, ruled against Canada in this regard, highlighting a State’s international responsibility for its failure to fulfil its obligation to ensure that sovereign use of territory did not affect neighbouring States. The Tribunal ruled that “under the principles of international law … no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence” (p. 1965).
Under the prevailing case law, the principles applicable to water pollution have been transposed to other transboundary situations relating to the sovereign use of territory for almost a century, based on the practice of due diligence. In line with this precedent, arbitrator Max Huber recognized in the Island of Palmas Case (U.S. v. Netherlands) that “[t]erritorial sovereignty … involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war … .”
The concept of due diligence provides a framework that ensures that a State can exercise the prerogatives inherent in its territorial sovereignty in a way that does not give rise to acts and consequences that are harmful to bordering territories. Its transposition to the law of armed conflict is based on the inevitable gap that exists between compliance with the principles of distinction, necessity, and proportionality and the occurrence of harmful transboundary consequences.
In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ rejected the argument that “[principle 21 of the Stockholm Declaration] was obviously not drafted to apply to the conduct of armed conflict, much less to the use of nuclear weapons in foreign territory.” In this way, the Court explicitly integrated the issue of environmental protection in wartime into international law. Reacting to the claims of certain States regarding the applicability of treaties and norms relating to the environment in situations of war, the Court recalled the obligation of States to prevent the transboundary consequences of the use of their sovereign territory. It concluded its reasoning by urging States to take environmental considerations into account in the pursuit of legitimate military objectives.
In the same vein, the International Law Commission’s “Principles on Protection of the Environment in relation to Armed Conflicts” cover the prevention of transboundary harm. Here, it is only in the context of military occupation. This is not far removed from the formal recognition of prevention as a principle of humanitarian law applicable in environmental contexts.
Conclusion
Situations that illustrate the reality of transboundary ecological damage are the reason for the urgent need to extend the normative framework for environmental protection in times of armed conflict to include this problem. Transposing, through codification, humanitarian principles to the protection of the environment has not been enough to address this unique problem. These rules apply only to attacks within the territorial scope of the war. Any environmental damage that surpasses the enemy territory is not, strictly speaking, prohibited by the rules of war. Practices establishing the territorial inviolability of neutral States and the no-harm rule provide a timid basis for the customary prohibition of such conduct. The principle of the sovereign, non-harmful use of territory, which is a corollary of the principle of prevention in international environmental law, also gives rise to the issue of the application of peacetime rules in times of war.
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Ivon Mingashang is a professor at the University of Kinshasa and a member of the ILC/UN.
Christian Tshiamala Banungana is a teacher-researcher at the Faculty of Law at the University of Kinshasa.
Photo credit: U.S. Army, Spc. Samuel Signor
