Protecting vulnerable environments in armed conflict: deficiencies in international humanitarian law.
I. INTRODUCTION: THE UNEASY RELATIONSHIP BETWEEN INTERNATIONAL HUMANITARIAN LAW AND THE PROTECTION OF THE ENVIRONMENT II. VULNERABLE ENVIRONMENTS A. "Environment" as Defined by International Law B. What is a "Vulnerable" Environment and Why Does it Need Special Protection 1. Fragility and Biomagnification 2. An Example: the Arctic III. CURRENT STATE OF THE INTERNATIONAL HUMANITARIAN LAW PROTECTING THE ENVIRONMENT A. Additional Protocol I to the Geneva Conventions and ENMOD 1. AP-I 2. ENMOD 3. Customary Status? B. Other Direct Protections 1. International Instruments 2. Protected Areas and Demilitarized Zones C. Indirect Protections IV. IS IHL FLEXIBLE ENOUGH TO PROTECT VULNERABLE ENVIRONMENTS DURING ARMED CONFLICT? A QUALIFIED "NO." A. Widespread, Long-Term, And Severe Threshold B. Military Necessity and Proportionality 1. Necessity 2. Proportionality C. Anthropocentric Or Ecocentric? D. Solution: Enact New Law Or Better Define, Implement, And Enforce Existing Law? V. CONCLUSION
I. Introduction: The Uneasy Relationship Between International Humanitarian Law and the Protection of the Environment
International Humanitarian Law ("IHL") sets limits on the rights of belligerents, within the course of hostilities, to "cause suffering and injury to people and to wreak destruction on objects, including the natural environment." (1) While the main focus of IHL has always been humanitarian concerns, the public conscience currently recognizes a need for IHL to encompass environmental considerations. Unfortunately, the law is slow to adapt and does not currently reflect these changing values. The current protection the law affords to environments from the devastation of hostilities is ambiguous, limited, and unenforceable; moreover, the law does not account adequately for the special needs of certain environments, which are referred to here as "vulnerable environments." The existing literature overgeneralizes the multifaceted nature of environments and elides the highly specific issues that must be considered.
Vulnerable environments are those in which even slight changes in the biosphere can exponentially increase harm, potentially resulting in wide-scale, if not worldwide, repercussions. It is not that vulnerable environments constitute a class of their own with distinct rules; rather, the distinction lies in how the general rules protecting the environment are to be applied. The rules of IHL should require a context-sensitive interpretation, which allows the general features of IHL to be applied appropriately to the peculiarities of vulnerable environments. The Arctic region, which appears to be under growing military threat, (2) is just one such example.
In today's interconnected world, serious issues are not confined to national borders. The issues each country faces, whether related to politics, security, or the environment, are inextricably linked and resonate within the international community.
Few threats to peace and survival of the human community are greater than those posed by the prospects of cumulative and irreversible degradation of the biosphere on which human life depends. True security cannot be achieved by mounting buildup of weapons, but [o]ur survival depends not only on military balance, but on global cooperation to ensure a sustainable environment. (3)
As "security anywhere depends on sustainable development everywhere," (4) there is a growing unmet need for an international legal framework that adequately reflects this interconnectivity. The degradation of the environment is a critical, global concern with severe consequences beyond strictly environmental concerns. Environmental degradation, in the context of conflict, could even affect the political stability of a country. (5)
Until the 1970s, the term "environment" did not appear in any IHL instruments, although some indirect protections for the environment are found. While the environment is not explicitly mentioned, it is arguable that some of the terminology used in these texts can be interpreted to provide direct protection. Although not generally considered rules of IHL, treaties of International Environmental Law can also afford protection to the environment during armed conflict. The most direct sources of environmental protection within IHL are the 1977 Additional Protocol I to the Geneva Conventions of 1949" (AP-I) and the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD). Certainly, these are innovative instruments to link environmental protection and IHL, but the question remains, are they actually effective?
Beyond pure treaty law, the environment could perhaps receive protection from customary principles of IHL. The customary principles of proportionality and military necessity could play a significant role in protecting vulnerable environments if there were a way to establish an objective valuation of these elements. Such an objective valuation could be achieved by adopting an anthropocentric approach to environmental protection. The problem is, if the environment is protected solely as a human asset, vulnerable environments may be left unprotected. For example, only a small portion of the Arctic is inhabited by humans. It is arguable that disturbances in vulnerable environments such as the Arctic have significant effects on the rest of the world and it is therefore in the interest of humankind to protect these areas notwithstanding the small human population. However, as global effects can take years to manifest, it is extremely difficult to determine future impacts on human populations. Therefore, avoiding an anthropocentric threshold, and instead focusing on protecting the environment in and of itself is more effective. But is pure ecocentrism politically realistic?
This Article examines the various protections IHL currently provides for the environment and demonstrates that the current state of the law is manifestly inadequate to protect vulnerable environments. The current legal framework does have the potential to provide sufficient protection, but the law is rife with ambiguities, inconsistencies, and ineffective enforcement mechanisms, leaving vulnerable environments dangerously exposed to the devastation of warfare. Although a new comprehensive treaty or convention could be an important step forward, any new instrument would likely contain the same uncertainties; realistically, the tradeoffs in drafting may leave environmental protection at the "lowest common denominator." (8) Rather than a new treaty, the international community must focus on clarifying and interpreting existing law in a manner that gives adequate consideration to vulnerable environments.
II. Vulnerable Environments
A. "Environment " as Defined by International Law
Before determining to what extent IHL protects vulnerable environments, the meaning of "environment," as defined by international law, must be established. Unfortunately, there is no concrete or universally agreed upon definition of the "environment." Guidance can be obtained from the International Committee of the Red Cross (ICRC") Commentary on Additional Protocol I (AP-I), which suggests that the environment "should be understood in the widest sense to cover the biological environment in which a population is living." (9) This includes the fauna and flora as well as "climatic elements." (10) The environment in this context encompasses the entire complex of factors (living and non-living) that influence an organism's form and survival. (11)
Further complicating the definition of "environment" is the tendency of some international instruments, including AP-I, to refer to a "natural" environment as opposed simply to the "environment." (12) Does reference to a natural environment mean that there is a separate concept for a "human environment"? Thus the anthropocentric-ecocentric debate in approaches to environmental protection is an important and complex issue discussed further in Part IV. Hulme noted during negotiations for AP-I that if there were such a distinction, a human environment would refer only to "immediate surroundings in which the civilian population lives." (13) Hulme believes that the drafters of AP-I envisioned three distinct categories of environment: 1) immediate human surroundings; 2) cultivated environment; and 3) natural environment. (14) Accepting this distinction would result in a further restriction in AP-I's ability to protect the multifaceted nature of environments because of the sole reference to natural environments.
As a result, it could be argued that artificially created environments would not be protected by AP-1, as evidenced by the fact that there are separate articles in AP-I that deal with works and installations, such as Article 56. (15) In contrast, the literature (16) offers recommendations for the natural environment to be interpreted as broadly as possible. However, one cannot separate a human environment from its natural features and therefore, for the purposes of this article, the broader interpretation of environment is adopted.
B. What is a "Vulnerable " Environment and Why Does it Need Special Protection
1. Fragility and Biomagnification
All military activity inevitably results in some degree of environmental destruction. Missiles, gunfire, mines, and the setting up of military camps disrupt the surrounding environment. However, the same military activities will have different environmental consequences depending upon the environment in which they occur. A mine exploding in the desert will not have the same environmental implications as a mine exploding in the Arctic. While serious damage to the environment from military activity generally must be prohibited, it must be recognized that there are certain areas that require additional protection because they are particularly vulnerable. These are areas more sensitive to change, where restoration after disturbance is difficult, and in which damage has a magnified effect in that particular environment and for the world as a whole. In short, these are fragile areas in which disturbance carries the potential for serious magnification.
For example, rainforests, coastal areas, and polar regions are areas where the environment is so fragile that even slight disruptions could have disastrous consequences. Slight changes in coastal regions can alter ocean currents and cause massive flooding, hurricanes, and tsunamis with impacts far from the local site. (17) The Amazon rainforest produces approximately 20% of the world's oxygen and houses 2.5 million insect species, tens of thousands of plants, and thousands of birds and mammals. (18) Polar regions, such as the Arctic, are areas of extreme temperatures in which fluctuations in natural processes have implications that reverberate through the rest of the world. "The Arctic basin plays a unique role in global environmental processes, giving a number of useful feedbacks for the Earth's climatic system ... [A]dverse impacts on Arctic ecosystems may well lead to an increase in regional or even global scale negative consequences." (19)
Many international organizations and military manuals have begun recognizing the need to protect certain environmental areas. The San Remo Manual (20) recognizes that certain areas of the world are particularly vulnerable. It stresses the need to reach agreement on not engaging in hostile activities in areas containing rare or fragile marine ecosystems, (21) a sentiment which can be extrapolated to similar terrestrial circumstances. The South Pacific Applied Geoscience Commission (SOPAC), the United Nations Environment Programme (UNEP), and their partners have developed an "Environmental Vulnerability Index" to identify particularly vulnerable environments, measure how vulnerable they are, and develop ways to build resilience. (22) Interestingly, UNESCO's World Heritage Center list of cultural and natural sites affords special protection to sites such as the Kvarken Archipelago that is protected on the basis that it is rising from rapid glacio-isostatic uplift at one of the highest rates in the world. (23) Protection under UNESCO, however, is dependent on individual States ratifying the 1972 Convention for the Protection of the World Cultural and Natural Heritage ("World Heritage Convention") (24) and lacks a sufficient enforcement mechanism. Even if the World Heritage Convention became customary law, or if all States ratified the Convention, it would not account for vulnerable environments in the context of fragility and biomagnification.
2. An Example: the Arctic
While there has not yet been actual conflict in the Arctic, recent scientific discoveries have made the potential for conflict in or around the area a legitimate threat. (25) In 2012, the eight main Arctic powers gathered specifically to discuss Arctic security issues, and Norway engaged in "Exercise Cold Response" in which over 16,000 troops from more than a dozen countries conducted military training on the ice. (26) "By Arctic standards, the region is already buzzing with military activity, and experts believe that will increase significantly in the years ahead." (27) Even if conflict did not arise over the natural resources, disputes over shipping routes and borders could escalate "if push comes to shove [to] military muscle." (28)
The extreme vulnerability of the Arctic region, coupled with the devastating effects any changes to its environment could have--not only to the organisms and resources within the Arctic, but to the entire globe--highlight the need for effective laws to protect the Arctic in times of armed conflict. The Arctic is arguably one of the most vulnerable environments, and yet it is one of the few areas in the world not strictly governed by international law. There are no Arctic-specific rules of IHL; it is an area that is gray, and not just in color.
The Arctic is a cold, fairly isolated, and often overlooked region, fostering the belief that no one would engage in war in, let alone over, the North Pole. This misconception has left the area dangerously unprotected. Certainly, there is a lack of sufficient protection for the environment in general, but the Arctic presents special needs. The extreme conditions, including highs of 4[degrees]C in the summer and 60[degrees]C in the winter, (29) mean slow ecological reactions and processes. Therefore, any pollutant introduced into this environment would take much longer to dissipate, (30) and such biomagnification would not only accelerate global warming but also present a serious threat to polar organisms.
The threat to the Arctic and the disastrous impacts of warfare are real, and there is an increasing expansion of military activities present there. (31) Huebert demonstrates that an arms race may be underway among Russia, Canada, Denmark, Norway, and the United States as they prepare their militaries for a potential Arctic conflict. (32) "Conflict in the Arctic isn't a doomsayer's dark fantasy. It is something that has already happened. And it could easily happen again." (33) With increasingly hot temperatures, the ice caps' melting has uncovered a large amount of methane and other natural gases. Scientists believe that the Arctic holds up to a quarter of the world's natural gases, and countries are thus rushing to stake their claims. As these events precipitate, urgency for action to protect the Arctic increases. For example, take Russia's attempt to acquire territorial rights by planting a flag under the ice. (34) Even though Russia's action was not a legitimate way to acquire sovereignty, it is a sign of the potential for conflict. Russia has had military forces stationed in the Arctic since 2013, and there are rumors that Russia is constructing more icebreakers and other weaponry that can be used in the Arctic environment. (35)
Military forces fighting on land or sea near the Arctic regions must take into account the fragile characteristics of this area. The use of regular military vehicles could erode the Arctic tundra; oil released under the ice could spread further, causing widespread melting; and explosions could leave toxins seeping into the ocean floor, which would persist longer and pose an ongoing threat to aquatic life, as regeneration in this environment is exceptionally difficult. Due to the interconnectedness of the Arctic with the rest of the world, these seemingly innocuous events could have serious repercussions. The Arctic presents a paradigm of vulnerability and illustrates the need for specific protection in IHL.
III. CURRENT STATE OF THE INTERNATIONAL HUMANITARIAN LAW PROTECTING THE ENVIRONMENT
The main focus of IHL, as the name suggests, has always been humanitarian concerns--i.e., preserving human life, distinguishing between combatants and civilians, and limiting the methods and means of warfare in pursuance of those goals. Because IHL aims to protect the civilian population, it must protect the natural environment "without which human life is impossible." (36) The concept of "vulnerable environments" and their special needs is not yet recognized by the international community. An understanding of the extent and limitations of the current IHL protecting the environment in general is necessary in order to grasp the special needs for protection of vulnerable environments.
A. Additional Protocol I to the Geneva Conventions andENMOD
The Vietnam War (which spanned from the mid-1950s until 1975) was the first war to be televised, bringing the atrocities of war into people's living rooms. (37) Millions of people around the world witnessed bombing campaigns, troops on patrol, and napalm strikes devastating human life. This was not only the first time the realities and atrocities of war were widely witnessed, but it was also the first time people saw the destruction and disastrous effects wars have on the environment, such as the forest defoliation. The then-existing Hague Law and the four Geneva Conventions, two of the main sources of IHL, make no mention of the environment. (38) It was not until the public's mass exposure to the Vietnam War that the need to protect the environment from hostilities was recognized, culminating in two major legal developments: AP-I and ENMOD."
The 1977 Additional Protocol I to the Geneva Conventions contains two important articles that directly protect the environment. Article 35(3) states: "it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment." Article 55 follows:
[C]are shall be taken in warfare to protect the natural environment against widespread, long-term, and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
Unfortunately, this "may be expected" formula may be expected to cause problems; in the case of vulnerable environments, effects take time to develop, are difficult to measure, and may be unexpected. Nevertheless, as these AP-I articles protect against foreseeable damage, intentional or not, (40) they do seem to be more flexible than ENMOD's limit to intentional infliction of damage as discussed below.
An interesting aspect of Article 55 is that it refers to the health of the population. Mere survival is therefore not sufficient; if the health of the population is affected, the action will be prohibited. Further, using the expression "population" (omitting the qualifying word "civilian"), demonstrates the all-encompassing nature of this prohibition. "This was a purposeful omission underscoring that the whole population, 'without regard to combatant status', is alluded to." (41) This is important, as the environment does not have a way to distinguish between combatants and civilians; air cannot be polluted only for combatants. As big a step as this is in providing the environment direct protection in the face of armed conflict, two caveats must be mentioned (which will be discussed in section IV): 1) Article 55 protects the environment in relation to "the health or survival of the population," or anthropocentrically, and 2) the three-fold threshold of "widespread, long-term, and severe" provides for a very high threshold to cross.
ENMOD was also formulated in the wake of the Vietnam War. The Convention was adopted to prevent the manipulation of the environment as a weapon during hostilities. "Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage, or injury to any other State Party." (42) Article 2 goes on to define the term "environmental modification techniques." (43) Once again, the threefold threshold of widespread, long-term, and severe appears. However, in contrast to AP-I, ENMOD uses "or" rather than the conjunctive "and," resulting in a significantly lower threshold.
While the lower threshold for damage is a positive sign of ENMOD's capability to protect the environment from being used as a weapon in armed conflict, it does not protect the environment as a victim destroyed by a weapon. In fact, Article 8 does not protect the environment from any actual damage but from intentionally using the environment as a method of attack. AP-I aims to protect the environment from damage or destruction from warfare while ENMOD aims to protect the environment from being used as a method of warfare.
Using the environment as a method of warfare, however, would occur in very limited circumstances and the uses anticipated by the Convention appear to be futuristic, if not speculative. There are some exceptional instances in which conventional methods of warfare can create destruction induced by environmental modification, such as global climate change from the deforestation of the Amazon rainforests by fire. (44) Yet ENMOD "continues to limit the use of weapons which at times smack of science fiction, but remains helpless in the face of very real threats," (45) as most of the phenomena described in Article 2 require unconventional weapons.
In order for a manipulation of the environment to be in violation of ENMOD, several conditions must be met, of which Dinstein identifies six. (46) First, the use of the environmental modification techniques must be hostile, (47) thus leaving open the possibility of harming the environment for "peaceful purposes:" "The provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes and shall be without prejudice to the generally recognized principles and applicable rules of international law concerning such use." (48) Second, the prohibited action must be a manipulation of natural processes. Third, the action must be deliberate, thereby excluding unintended collateral damage. Fourth, the threshold for damage is widespread, long lasting, or severe. Fifth, the conduct must cause destruction, damage, or injury even if the damage is beyond what was foreseen or intended. Sixth, the damage must be to another state that is party to ENMOD. Consequently, damage to a state not party to ENMOD or an attack within the same state is not prohibited. To illustrate these conditions, the hypothetical invasion of Alaska by Russia is considered. If the United States thwarted the Russian invasion by sending missiles to the Arctic Circle area of Alaska, with the aim of creating large craters, this manipulation of the environment would be excluded from the scope of ENMOD protection.
3. Customary Status?
Even if AP-I and ENMOD provided for effective protection of vulnerable environments, many major countries are not party to one or both; e.g., the United States is not party to AP-I, and therefore not bound by its obligations. The question then becomes, have these treaty "rules" become customary international law? If customary law, these rules form part of the core of jus in bello and become erga omnes obligations. In order to become customary law, the norm must exhibit widespread practice and the international community must appear to view the rule as obligatory; (49) for example, the prohibitions on slavery and torture and the law of neutrality. If AP-I and ENMOD are considered expressive of customary norms, the protection these instruments offer the environment would be obligatory regardless of a state's signatory status.
The literature presents extremely differing views about the customary status of these instruments. Cassese believes that Article 55 "already reflects a general consensus and thus is binding on all members of the world community," (50) while Dinstein denies any reflection of customary international law in either AP-I (51) or ENMOD. (52) Greenwood takes a moderate position claiming, "the core of that principle [contained in article 35(3)] may well reflect an emerging norm of international law." (53) One may argue, in line with the US position, (54) that since the precise meaning and nature of articles 35(3) and 55 are ambiguous, and not unanimously agreed upon, a customary norm could not be born out of such imprecision. But if customary laws were to be determined on that basis, there would be no customary laws in international law, as the majority of norms contain some degree of imprecision and are the center of much debate.
The International Court of Justice (55) in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, found that articles 35 and 55 "embody a general obligation to protect the natural environment against widespread, long-term, and severe environmental damage." (56) The ICJ conceded, though, that these obligations are only upon those states subscribed to them. More convincing of the normative status, however, is the fact that the three-fold threshold of widespread, long-term, and severe is included in the ICRC's authoritative study on the customary principles of IHL conducted ten years after the ICJ's Advisory Opinion. (57)
International law, especially international humanitarian law, is rapidly changing; and although the importance of protecting the environment is only a relatively recent development, there appears to be a consensus on the need to protect the environment from armed conflict. Regardless of whether AP-I and ENMOD have entered the realm of customary international law, however, the terms are too vague and the protection afforded is too limited to provide sufficient protection to vulnerable environments from the hazards of warfare.
B. Other Direct Protections
1. International Instruments
Following AP-I and ENMOD, the 1998 Statute of the International Criminal Court, (58) also known as the Rome Statute, article 8(2)(b)(iv) declares war crimes to include "intentionally launching an attack in the knowledge that such attack will cause ... widespread, long-term and severe damage to the natural environment which would clearly be excessive in relation to concrete and direct military advantage anticipated." The explicit involvement of the proportionality test merits critical discussion. In order for the war crime to crystallize, the damage must be excessive compared to the military advantage anticipated, thereby adding another hurdle. As opposed to AP-I, which requires intention or expectation, the Rome Statute requires both intention and knowledge of the outcome. Using the conjunctive creates a higher threshold, but one that is appropriate in the context. War crimes involve individual criminal responsibility, thus knowledge and intent are necessary to establish mens rea. However, just as with AP-I and ENMOD, many countries, such as the United States and China, are not parties to the Rome Statute, so its practical effect is lacking.
Another text that directly protects the environment is the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (59) Protocol III. Article 2(4) prohibits the use of incendiary weapons on forests and plant cover unless they are used by the enemy forces as camouflage. Whilst an aspect of the environment is directly protected by this provision, those protected aspects relate only to a small portion of the natural environment and prohibits only the use of incendiary weapons. Further, this prohibition ceases to apply if the vegetation becomes a military objective, which of course is precisely when the vegetation is most likely to be targeted. (60) Therefore, some scholars, such as Frits Kalshoven, have pointed out that this provision, with its severe limitation, has little or no significance. (61)
International Environmental Law treaties contain other direct protections. Examples include the 1982 UN Convention of the Law of the Sea, (62) the 1959 Antarctic Treaty, (63) the 1994 UN Framework Convention on Climate Change, (64) and the 1979 Convention on the Conservation of European Wildlife and Natural Habitats. (65) Unfortunately, for purposes of IHL, there is serious debate over whether these treaties are applicable during hostilities. Traditionally, "[w]ar was a state of affairs that existed beyond the realm of international law and relations," (66) but the more modern view recognizes war as a continuation of interstate relations that should remain subject to pre-existing legal limits. Some treaties expressly provide for their continuance or discontinuance during war, but most environmental treaties do not directly address this issue. (67) Voneky contends that because belligerents are not allowed to terminate multilateral treaties and most environmental treaties are multilateral, most would remain in force. (68) Even Bothe, who favors the view that multilateral treaties would be suspended between belligerents, acknowledges that "modern opinion ... favors the non-suspension of certain types of obligations even between belligerents. It would appear that some basic mies relating to the protection of the environment might be counted among the latter obligations." (69)
Leibler, on the other hand, has noted that most International Environmental Law developed in response to accidents, such as the Chernobyl nuclear disaster, and was not intended to govern intentional damage. (70) If a party can be liable for negligent actions, should they not also be held accountable for intentional infliction of damage? As Schmitt observed: "[t]o argue sans plus that treaties become inoperative upon the start of hostilities is to suggest that war is really all that matters once it breaks out." (71) While hostilities may have exerted preclusive effects on treaty law in the past, modern society recognizes the need to limit the actions of belligerents to preserve and maintain society. The emergence of human rights conventions and, more recently, environmental concerns, reflects this understanding.
The Canadian Ministry of External Affairs and the International Council of Environmental Law have likewise concluded that general peacetime mies of protection remain applicable during hostilities, unless the treaty involved is directly contradictory to IHL. (72) Roberts has said that whether or not peacetime treaties are formally applicable, "belligerents may be expected to operate with due regard for their provisions." (73) Further, these peacetime treaties will continue to govern relations between belligerents and neutrals, and in most cases, the victims of environmental damage cannot be limited to the belligerent parties.
However, the question remains: how much protection does International Environmental Law afford in practice? As Voneky contends, many peacetime treaties are easily undermined by aspects of IHL, such as the principle of military necessity, which permits actions that may harm civilian populations if justified by a tactical imperative. For example, article 12 of the 1966 International Covenant on Economic, Social, and Cultural Rights (74) provides for the improvement of "environmental and industrial hygiene," but this right can be subordinated by military necessity. (75)
2. Protected Areas and Demilitarized Zones
There is a growing recognition within the international community that certain areas need special protection during conflict. However, as of now, there is neither an institutionalized nor comprehensive method of protection, let alone an effective inspection and enforcement mechanism. Although AP-I articles 59 and 60 allow for the creation of demilitarized zones during armed conflict, they require agreement between the parties to do so. Likewise, although the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict contains detailed provisions on safeguarding cultural property, interpreting "cultural property" to cover vulnerable environments is a stretch, especially given that the convention was intended to protect only monuments and works of art. (76) Lastly, the 1972 World Heritage Convention, which developed from the movement to protect "heritage" after World War I, identifies important cultural and natural sites and obligates states to protect and preserve them. (77) Although it stresses "the fundamental need to preserve the balance" (78) and recognition of the relationship between people and nature, it lacks any mechanism for ensuring implementation.
In 1995, the International Union for Conservation of Nature Commission on Environmental Law and the International Council of Environmental Law initiated the development of a Draft Convention on the Prohibition of Hostile Military Activities in Protected Areas (79) that would allow the UN Security Council to designate important sites as "safe areas." These areas are places where "overall interests of humanity should predominate over military ones." (80) As Burhenne proposes, "the emphasis on 'safe areas' could be made two-fold: protecting human lives directly, and humankind-through protection of the environment-indirectly." (81)
However, designating "safe areas" has proven ineffective without a corresponding enforcement mechanism. For example, during the Bosnia-Herzegovina conflict, the UN Security Council acknowledged the necessity of declaring certain areas ("safe areas") demilitarized for humanitarian purposes. (82) Unfortunately, UN troops were unable or unwilling to enforce the safe zones, with some of the conflict's worst atrocities taking place within them. (83) The fact that some states do not seem to respect demilitarization for humanitarian purposes raises doubts regarding the utility of such declarations for environmental purposes. Even though the Security Council's resolutions on demilitarized zones do, albeit arguably nominally, protect a specific environment from damage, concentrating on the humanitarian aspect continues to neglect environments that are vulnerable in and of themselves. Therefore, the Security Council should explicitly declare certain areas demilitarized for environmental purposes.
In any event, the Draft Convention has been controversial and subject to a long and complicated drafting process. Clarification and enforcement of current law would be more effective.
C. Indirect Protections
Various articles in Hague Law and the Geneva Conventions prohibit destroying enemy property (84) and causing unnecessary suffering. (85) These prohibitions could be extended to environmental concerns. However, problematically, the concept of "property" does not encompass many aspects of the environment, especially vulnerable environments. For example, releasing degrading chemicals into the atmosphere would not be prohibited, as no one can own the ozone layer. (86) In addition, various instruments of IHL prohibit the use of chemical and bacteriological weapons. (87) While the principal purpose of these instruments is to avoid human suffering, there is clearly the incidental benefit of sparing the environment from exposure to toxins.
Such indirect protections did not deter the mass use of herbicides in the Vietnam War, where an estimated over 100,000 tons of napalm was used in the defoliation strategy devastating tens of thousands of square kilometers of vegetation and crops. Even though the devastation fell short of military expectations, "such attempts may lead to irreversible ecological changes having grave long-term consequences out of all proportion to the effects originally sought. This menace, though largely unpredictable in its gravity, is reason for expressing alarm concerning the massive employment of incendiaries against the rural environment." (88) This resulted in a flood of post-Vietnam War chemical and bacteriological conventions, such as the 1980 Convention on the Use of Certain Conventional Weapons. (89)
Other indirect protections might be found in other articles of AP-I. Article 51 prohibits indiscriminate attacks, article 52 protects civilian objects which could include aspects of the environment, and article 54 prohibits attacks on objects indispensable to the survival of the civilian population, which could take into consideration vulnerable environments' potential for biomagnification. Many rules of IHL protect cultural property and "other objects of interest," (90) but there is no clear interpretation of what constitutes an object of interest. Diederich argues the scope of "real and personal property" protections could expand to include rape and pillage of the environment. (91) Cultural protection can be broadened to include environmental sanctuaries "so as to protect these areas as if they comprised a cultural site." (92) Diedrich even puts forward the possibility for natural monuments to constitute historical monuments. (93)
The Martens Clause under the Hague Conventions offers further indirect protection in its declaration that, "inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. (94) This broad declaration could provide an important protection mechanism that will induce belligerents to take environmental concerns seriously. Such an interpretation is consistent with the fact that the environment's importance has grown in the public conscience in recent years.
IV. IS IHL FLEXIBLE ENOUGH TO PROTECT VULNERABLE ENVIRONMENTS DURING ARMED CONFLICT? A QUALIFIED "NO."
The complication with vulnerable environments is that at the time the harm is done, damage can appear local and not serious, and thus beyond the scope of environmental protections in IHL. However, due to the nature of vulnerable environments, this "local harm" can, over time, biomagnify, causing widespread, long-term, and severe damage to the global ecosystem. For example, harm done in the Amazon rainforest from hostilities can seem contained, but due to the fragility and interconnectedness of the rainforest, over time such damage could destroy the whole biosphere. This lack of immediacy creates a problem in determining the applicability of existing rules. As vulnerable environments are not in a class of their own, but at one end of a very loose sliding scale, there are no distinct rules for vulnerable environments. A context-sensitive approach to the environmental protections could better account for the special features of these environments. The widespread, long-term, and severe criteria of AP-I and ENMOD would remain the same across the spectrum of environments, but would have special meaning with respect to vulnerable environments; the threshold would arguably be more easily reached. The same can be said for the customary principles of necessity and proportionality. As argued below, accounting for the fragility and biomagnification inherent in vulnerable environments could weigh more heavily in the precarious balancing test in determining limitations on belligerent parties.
A. Widespread, Long-Term, And Severe Threshold
As stated earlier, one of the biggest distinctions between ENMOD and API is the way this damage threshold is presented. AP-I protects the environment against widespread, long-term, and severe damage. ENMOD protects against widespread, long-lasting, or severe damage. In reality, environmental damage very often fulfills one or perhaps two of these conditions, but rarely all three. In this context, Schmitt gives as an illustrative example: "[T]he destruction of all members of a species which occupies a limited region." (95) This example has resonance in the case of vulnerable environments. The Arctic is a very isolated region with contained and specialized species, such as polar bears. (96) If armed conflict were to negatively impact the Arctic, it could potentially wipe out an entire Arctic species. It is clear that this damage would be long-term and severe, but one cannot say that it is widespread within the traditional meaning of the word. Such an attack would not be governed by AP-I since it lacks one of the three elements. However, the attack could be prohibited under ENMOD's disjunctive, lower threshold, but only if the damage arose from using an environmental modification technique.
Another distinction between AP-I and ENMOD's use of this threshold is how the three terms have been interpreted. According to the Understandings attached to ENMOD, "widespread" entails "an area on the scale of several hundred square kilometers," "long-lasting" entails "a period of months or approximately a season," and "severe" entails "serious or significant disruption or harm to human life, natural and economic resources or other assets." (97) Despite ENMOD's lower threshold, the limitation to those attacks manipulating the environment itself leaves too narrow a scope for application. AP-I is not of much help either. Except for the ICRC's declaration that the "long-term" aspect entails a length of decades, (98) there is no definitive interpretation of the elements required to meet AP-I's threshold. This interpretive vacuum is one of the reasons behind objections to the Protocol. (99)
Although Wyatt has argued that the ENMOD standard should be incorporated into AP-I by default, (100) the fact that the Understanding to ENMOD explicitly states that the definitions are intended exclusively for ENMOD (101) positions Hulme's argument for a higher threshold for AP-I as more persuasive. Hulme suggests that "widespread" entails damage exceeding several hundred square kilometers and "severe" entails a shock to "the balance of the ecosystem." (102) Given the lack of a definitive interpretation, one could argue that destruction in vulnerable environments could meet AP-I's threshold. In environments such as the Arctic, it is very easy for environmental destruction to be extremely severe and long lasting. With such severity and duration, added to the fact that vulnerable environments have a propensity to greatly affect the rest of the world, an argument can be made that the widespread threshold could be met. Yet without a definitive interpretation, this is mere conjecture.
Clearly, setting fire to the Kuwaiti oil wells during the 1991 Gulf War was an environmentally devastating act. Iraq set fire to more than 500 Kuwaiti oil wells that caused smoke plumes that extended into neighboring states, and even caused black snow 1500 miles to the east. (103) Yet even this extreme environmental disaster, inflicted in the course of war, would not have met either AP-I or ENMOD's threshold. First, even if either treaty were in force at the time, Iraq was not a contracting party to either instrument. Second, even if AP-I and ENMOD were applicable, scholars (104) have agreed that even though the damage was widespread and severe, the long-term test for AP-I was not necessarily satisfied. (105) Third, even if ENMOD's lower threshold could have encompassed this destruction, ENMOD pertains only to deliberate manipulation of natural processes and this is a case of damage to, not by the environment. (106) Kuwait itself is not an example of a vulnerable environment but if AP-I and ENMOD could not have protected Kuwait from this serious environmental disaster, how could they sufficiently protect vulnerable environments?
A further complication in applying the threshold is the relationship between the threshold and the customary principles of proportionality and necessity. For AP-I, this threshold displaces a proportionality principle. Even if the environmental damage were proportionate and necessary for the military advantage gained, if the three criteria are satisfied, the action will still be considered a breach of the Protocol. Compare this to individual criminal responsibility under the Rome Statute, where the threshold is explicitly maintained to be a consideration in the proportionality test.
This would be beneficial to vulnerable environments but could be problematic in practice. As Schmitt hypothesizes, if enemy forces operating from a surrounding forest move in to occupy a city with a large population, the defending commander may destroy the forest to deny the enemy forces sanctuary. (107) This could result in widespread, long-term, and severe damage to the environment but prevents massive human suffering from enemy occupation. In this situation, even if the necessity and proportionality requirements are satisfied, the widespread, long-term, and severe threshold would prohibit such lifesaving action. In reality, the commander might well ignore AP-I's prohibition even if it were interpreted to encompass the specific needs of a vulnerable environment. At the heart of this conflict is the anthropocentric/ecocentric debate. Just as fragility and biomagnification distinguish a vulnerable environment, those characteristics also are the principal factors in environmental harm, and, at the same time, present the greatest difficulty in applying the widespread, long-term, and severe threshold, particularly in the absence of interpretation.
B. Military Necessity and Proportionality
One of the foundational customary principles of IHL is that the means and methods of warfare are not unlimited. (108) Schmitt divides this foundational principle into subsidiary principles, including military necessity and proportionality. (109)
The principle of military necessity limits harmful or destructive acts to those acts necessary to obtain a clear military advantage. "Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces." (110) The ICJ in its Legality of the Threat or Use of Nuclear Weapons Advisory Opinion provided that "[s]tates must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives."" (111) In relation to IHL, this means that the environment must be considered a "civilian object" and an attack on a military objective must be weighed against the effect it will have on the environment. (112) While it is now clear that environmental factors should have a role in the balancing process, what is unclear is the role that unique characteristics of vulnerable environments play in this balance.
The extremely subjective nature of military necessity presents a problem in this context; "from the perspective of a military actor, almost any environmentally harmful initiative can be given a subjectively acceptable legal rationale." (113) It is unclear how direct a military advantage must be for the attack to be considered militarily necessary. Further, the concept of military necessity is dependent upon the context, which makes it difficult to assess the wantonness of a particular act in the abstract. (114) "[W]hen dealing with the environment, one is making calculations based on incredibly intertwined global relationships among the environment's seemingly infinite components." (115) Vulnerable environments are particularly intertwined with global relationships and the scientific uncertainty makes the likelihood of harm difficult to determine, further complicating the already difficult task inherent in military necessity.
Similarly, the principle of proportionality is fraught with interpretative problems. Proportionality limits certain acts of warfare, including those militarily necessary, that cause damage or injury disproportionate to the military advantage sought. (116) The very idea of "proportionality" is subjective and value-based. It is very difficult to find a clear point on the continuum in which a proportionate act becomes disproportionate. Absent guidance in treaty law, "[i]s the law, therefore, nothing more than an articulation of that fighter pilot adage to 'trust your gut'? Or is it imbued with a meaning more distinct and developed, perhaps in the sense of the Martens Clause's dictates of public conscience?" (117) There will inevitably be disagreement over the value assigned, but also over how that value is measured. Is a forest valuable because it produces resources for humans or because it is valuable in and of itself? Consider the complications of a vulnerable environment: Is the Amazon Rainforest valuable because it produces lumber (purely anthropocentric), oxygen (a mixture), or because it produces homes to thousands of species (purely ecocentric)?
In the ICJ's Advisory Opinion Legality of the Threat or Use of Nuclear Weapons, the court concluded that: "States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality." (118)
This principle of customary IHL prohibits attacks that would cause environmental ramifications outweighing the value of the military objective. On the other hand, the balance implicit in this principle allows a greater degree of environmental risk where the commanding officer perceives a great military advantage. (119)
As neither AP-I nor ENMOD were applicable to the environmental destruction that occurred during the Gulf War, the concept of military necessity was instrumental in the condemnation of Iraq's actions. Military necessity cannot justify this environmental destruction, as it occurred in an area being evacuated by a defeated army--thus offering no definite military advantage. The Hague Regulations prohibit destruction of enemy property when it is not "imperatively demanded by the necessities of war," (120) and thus clearly prohibit the destruction that occurred in the Gulf. Article 53 of the fourth Geneva Convention prohibits the destruction of property in an occupied territory "except where such destruction is rendered absolutely necessary." (121) Although the Convention's purview is limited to occupied territory, it does not work alone; both The Hague Conventions and the principle of military necessity bolster the Geneva Convention. (122) Article 147 of the fourth Geneva Convention further prohibits wanton and unlawful destruction not justified by military necessity, labeling it a grave breach and therefore a war crime under the Rome Statute. (123) Following the Gulf Conflict, the United Nations upheld these customary principles in General Assembly Resolution 47/37. (124) While the Resolution is not binding, it reflects opinio juris, or a widespread state belief that these principles reflect binding legal obligations under international law. 2' The San Remo Manual reinforces the proposition that these principles have become a part of binding customary international law. (126)
C. Anthropocentric Or Ecocentric?
The human population has a right to a clean and healthy environment. (127) As "the environment is unequivocally the life support system for all human systems," (128) should the environment be protected in its own right or only for its value to mankind? Recent international agreements reflect a growing awareness that the environment has its own worth independent from humanity. The 1982 World Charter for Nature proclaims: "Every form of life is unique, warranting respect regardless of its worth to man, and, to accord to other organisms such recognition, man must be guided by a moral code of action." (129) In recognition of the environment's inherent value separate from its worth to man, the ICJ confirmed that "even if an attack is planned in an area with little or no civilian population, it may have to be called off if the harm to the environment is expected to be 'excessive."' (130)
Further support for the inherent value of the environment is found in the idea that it "is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn." (131) As discussed above, AP-I Article 55 is anthropocentric in that the protection of the environment relates directly to the human population. This human-centered approach implies that for environmental harm to be prohibited under international law, the harm must have had an identifiable impact on a human population; such a threshold may be difficult to meet in vulnerable environments such as the Arctic. Dinstein believes the drafters were merely trying to highlight cases where human beings would be injured, not necessarily restricting the protection to those cases. (132) Barnes, too, believes a looser interpretation of this qualification can be viewed as a mere recognition of the relationship between humans and their environment such that "[a]ny damage to the world's ecosystems could be seen as affecting the quality of human life as a whole." (133) Ultimately, given the explicit language of article 55, it seems unlikely that such a broad interpretation is warranted.
Environmental protection poses an analytical challenge in that it asks decision-makers to balance two dissimilar quantities: necessity and proportionality. Schmitt persuasively suggests: "The only way to avoid having to balance human and environmental values is to adopt a purely anthropocentric perspective in which protection of the environment is merely a byproduct." (134) While in the future international law might protect the environment as having value in and of itself, such a shift would be gradual, as the international community is unlikely to depart suddenly from its current anthropocentric approach. Nor can IHL set rules that protect the environment to the detriment of soldiers and citizens. Thus environmental protection requires a balance between anthropocentric and ecocentric norms.
D. Solution: Enact New Law Or Better Define, Implement, And Enforce Existing Law?
In response to the massive and deliberate environmental damage that resulted from the Gulf War, many individuals and legal practitioners called for a new and distinct, environmentally protective instrument: a fifth Geneva Convention. This approach was advocated by those who saw it as "desirable for the international community to mark in a new instrument the concern that in the future the need to give protection to the environment as such in time of armed conflict should be explicitly catered for." (135) This would represent a complete reevaluation and departure from the existing Geneva Law, as it would infuse IHL protection with an ecocentric quality.
Plant claims that the current norms address only indiscriminate and excessive damage to enemy property, rather than the environmental impact of destruction. Plant's vision for a fifth Geneva Convention entails a broad definition of "environment" that encompasses marine environments as a whole, pollution of the atmosphere, and terrestrial fauna and flora, and imposes particularly strict protections for vulnerable environments. (136) Plant sets out the following framework: Part One of the new Geneva Convention would cover General Principles, including a statement providing principles of custom, and public conscience would fill any gaps in the Convention. Part Two would cover methods and means (although there exists much debate as to the proper threshold for the prohibition on methods and means). (137) Part Three would mimic the Hague Convention, with prohibitions on the use of herbicides, mines, booby traps, and other incendiary weapons. Part Four, execution, and Part Five, institutions, would be the most important sections. Plant's fifth Geneva Convention envisages deterrence mechanisms such as individual criminal responsibility, universal jurisdiction, and the creation of a new organization whose sole responsibility is to ensure compliance and safeguard the environment.
Prior to 1996, Professor Paul Szasz (138) had been very vocal in advocating such a recodification and expansion of existing law. (139) However, after the Naval War College Symposium on the Law of Naval Warfare, (140) he reversed course:
I must confess that I now concede the force of the arguments against such a project.... [Bjecause of the need to achieve widespread consensus on any new treaty, 'the resulting agreement might likely resemble a lowest common denominator, decidedly unhelpful in dealing with hard cases' and that it might 'be a model of ambiguity.' (141)
The benefit of a new Geneva Convention is the ability to start fresh and set forth environmental protections in a straightforward, simplistic manner, while also implementing a mechanism to ensure effectiveness and compliance. However, attempting such a drastic undertaking may not be the best way forward. Before we can begin to contemplate a new treaty, it is necessary to clarify controversy and ambiguities in the existing law. Only with clarification can the peculiar issues raised by vulnerable environments be adequately understood and conveyed in a new treaty.
Some academics (142) have argued that the Hague rules, if clarified and enforced, would be sufficient to limit environmental damage during hostilities. Had the Hague Rules "been observed by Iraq, there would have been no significant violation of the Kuwaiti environment." (143) However, as Schmitt points out, while article 23 of The Hague Convention (IV) could have effectively applied to the Gulf War situation, the Convention is too fact-specific and therefore these Hague rules are not comprehensive and applicable in many other situations, let alone vulnerable environments. (144) In any event, as noted above, (145) the reliance on the concept of "property" in the Hague Rules makes its application to vulnerable environments problematic.
As far as current IHL is concerned, a closer look at the widespread, long-term, and severe damage threshold of AP-I is helpful. Damage in vulnerable environments such as the Arctic could, over time, spread across more territory, persist longer, and have devastating effects. However, Penny describes a realistic, hypothetical situation where AP-I's prohibition would not cover damage to the Arctic: the targeting of an enemy oil storage depot in an Arctic shipyard. Although such an attack would clearly be disastrous to the Arctic environment, the short-term effects might not extend the necessary hundreds of square kilometers needed to satisfy the "widespread" requirement. Further, "giving up a certain attack for a future possibility is not necessarily a wise military decision, and may in many cases be quite irresponsible, regardless of the potential for resulting environmental benefits." (146) AP-I can protect vulnerable environments only if "widespread," "long-term," and "severe" are given definitive interpretations that account for the fragility and biomagnification of certain environments, and the relationship between these requirements and the principles of necessity and proportionality is clarified.
As discussed previously, if general rules of International Environmental Law were deemed applicable during hostilities, these rules could be valuable in protecting vulnerable environments from the ravages of war. The precautionary principle involving environmental impact assessments before carrying out activities (147) could be extended to hostile activities. Deterring potentially devastating methods and means of warfare while they are in the development stage is a more promising means of protecting the environment, as it avoids requiring military officers to make complicated decisions about the necessity of environmental destruction while in the heat of battle.
Elaborating on the precautionary principle, Professor Szasz divided his theory on how the existing legal framework should be modified into three aspects: actual conflict, pre-conflict, and post-conflict protections. He focused his attention on pre- and post-conflict measures, as he believes those are the areas in which protection can be most effective. The difficulties involved in choosing between protecting the environment and gaining military advantage in a time of war is one of the main reasons why no satisfactory protection of the environment during hostilities has been agreed upon. Pre- and post-conflict scenarios are sufficiently removed from the battlefield so as to avoid such pressure.
With respect to pre-conflict protections, military exercises and production facilities can be just as destructive as armed conflict. AP-I article 36 refers to an obligation to determine whether, in the study, development, acquisition, or adoption of any new weapon or method of warfare, the employment of such weapon or method would be prohibited. However, this analysis does not include an appreciation for potential adverse environmental consequences. While making judgments involving necessity, proportionality, and precaution during combat is a difficult task for military leaders during battle, these considerations can be more easily applied to pre-conflict situations and planning, where the peculiarities of vulnerable environments can be accounted for.
With respect to post-conflict aftermath, Szasz proposes a number of deterrent strategies. First, he suggests some form of international and impartial fact-finding procedure to establish the extent of environmental damage, aided by the cooperation of participating parties. (148) Second, Szasz seeks effective provisions for the removal of remnants of war, such as mines, and restoring the environment to as close to its original condition as possible. Third, he calls for clear and efficient , procedures for determining and assessing civil and criminal liability for environmental crimes. (149) These post-conflict procedures and sanctions would not only help minimize the aftermath of environmental destruction and aid clean up, but would also have deterrent effects.
During the International Committee of the Red Cross Conference in Geneva following the Gulf War, experts agreed that the current rules would be sufficient if they were clearly reaffirmed and sufficiently known, implemented, and respected. (150) In adapting IHL to environmental needs, the issues of awareness, execution, and respect are particularly salient; there exists no sufficient enforcement mechanism and the state of the law is not clearly laid out, leaving military commanders to make uninformed decisions in the heat of battle. As Szasz has advocated, such challenges are best addressed through pre- and post-conflict measures. For example, during the Review Conference of the Parties to ENMOD in Geneva in September 1992, participants made several proposals, one of which was to prohibit research on environmental modification techniques.
Knowledge is key, transparency is imperative, and clarity is vital. Widespread awareness of existing rules of IHL would have tremendous preventive power. To this end, the UN General Assembly and the International Committee of the Red Cross have advocated the incorporation of rules protecting the environment into military manuals to bolster awareness and thus facilitate pre-conflict planning and strategizing. For example, even though the United States has not ratified AP-I, many of its important provisions have been expressed in U.S. military manuals. Regardless, knowledge, transparency, and clarity require a consistency in interpretation. If environmental protection is to be meaningful and to extend to vulnerable environments, clear interpretations must acknowledge and provide for the context in which these rules are to be applied.
Incorporating environmental concerns into international legal instruments is a relatively new development in society. The focus of IHL was, and is, to limit loss of human life during hostilities; the drive to protect the environment during armed conflict did not emerge until the 1970s, and IHL has not kept pace with modern environmental concerns. This lag is exacerbated with respect to vulnerable environments. Current IHL could encompass an effective protection for vulnerable environments during hostilities, but only if IHL is clarified and implemented through the lens of the expanding public interest in, and recognition of, the importance of the environment. Without this clarity or recognition, vulnerable environments are at risk of falling through the cracks in IHL's protection mechanisms.
Although the environment as a whole needs and deserves protection from the effects of hostilities, vulnerable environments in particular demand our attention. These are areas in which disturbances of any kind--large or small--could not only devastate the area, but also reverberate detrimentally to the rest of the world. As harmful as the use of herbicides was to Vietnam forests, such an act would have been disastrous on a global scale if done in a vulnerable environment such as the Amazon Rainforest.
Environments could be sufficiently protected through general International Environmental Law, although the applicability of these laws during hostilities is debated. Even if applicable, they are difficult to enforce. While many sources of IHL, such as the Geneva and Hague Conventions, peripherally refer to a need for environmental protection during hostilities, not until the Vietnam War did the need to protect the environment in its own right become recognized, and AP-I and ENMOD emerged as a solution. However, these "solutions" have not achieved their full potential. Even though AP-I and ENMOD were significant steps in the right direction, they lack clarity and are therefore vulnerable to misinterpretation. If the widespread, long-term, and severe damage threshold under AP-I were given a context-sensitive interpretation, however, AP-1 could provide protection for vulnerable environments such as the Arctic.
Similarly, military necessity and proportionality could protect the environment from disproportionate and wanton damage if these principles are clarified. Addressing concerns about vulnerable environments during the balancing process inherent in these principles is difficult inasmuch as the analysis requires comparing two drastically different values: human life and the environment. At present, the only practicable way to balance this equation is to adopt an anthropocentric view of vulnerable environments. To achieve sufficient and acceptable protection of vulnerable environments through the principles of necessity and proportionality, the law needs to create an objective baseline and clarify how these elements are to be weighed.
The inability of current IHL to sufficiently protect vulnerable environments has prompted calls for new treaties and conventions, including a Draft Convention or a Fifth Geneva Convention. New treaties that limit access to vulnerable environments to peaceful purposes could be beneficial. A treaty such as the Antarctic Treaty of 1959, which prohibits hostilities and proclamations of sovereignty over the Antarctic, might be similarly effective in protecting the Arctic. However, the enactment of a new treaty or convention would not solve the existing ambiguities that would inevitably arise.
It is unclear whether International Environmental Law applies in hostilities; it is unclear how AP-I's threshold is to be interpreted; and it is unclear how environmental factors are to be weighed in the military necessity and proportionality balancing processes. Before we can begin seriously to contemplate a new legal instrument of protection, we need to clarify the existing law. If the existing law is clarified and developed with environmental awareness, a new legal instrument may not be necessary. The international community needs to understand the importance of protecting areas such as the Arctic for the future of the earth. With this perspective in mind, clarifying and enforcing existing international humanitarian law could protect the planet and the lives of those who live on it.
(1) Hans-Peter Gasser, For Better Protection of the Natural Environment in Armed Conflict: A Proposal for Action, 89 Am. J. INT'L L. 637 (1995) (citing Antoine Bouvier, Recent Studies on the Protection of the Environment in Time of Armed Conflict, 32 INT'L REV. RED CROSS 554 (1992)).
(2) Vladimir Putin told the United Nations Security Council in early 2014: "More often the interests of the Arctic powers, and not only them ... [but] countries that are far away from this region are also expressing interest [in the Arctic]." Luke Coffey, Russian Military Activity in the Arctic: A Cause for Concern, HERITAGE FOUND. (Dec. 16, 2014), available at http://www.heritage.org/research/reports/2014/12/russian-military-activity-in-the-arctic-a-cause-forconcern (noting the increasing cause for concern over Russian military activity in the Arctic).
(3) Indep. Comm'n on Int'l Dev. Issues, North-South: A Programme for Survival, 15 J. Developing Areas 686 (1981).
(4) Ban Ki-moon, The Right War, TIME (Apr. 17, 2008), http://content.time.com/time/specials/2007/article/0,28804,1730759_1731383_1731345,00.html.
(5) Christina Voigt, Sustainable Security, 19 Y.B. INT'L Envtl. L. 163 (2008).
(6) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, Jun. 8, 1977, 1125 U.N.T.S. 17512 [hereinafter "AP-I"].
(7) Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1976, 1108 U.N.T.S. 17119 [hereinafter "ENMOD"].
(8) See discussion infra Subpart IV(D).
(9) Claude Pilloud et al., Article 55, in COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 to the Geneva Convention of 12 August 1949 661,662 (Yves Sandoz et al. eds., 1987).
(11) KAREN HULME, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD 13 (2004) [hereinafter "Hulme War Tom Environment"].
(12) See discussion infra Subpart 11(A).
(13) Karen Hulme, Environmental Protection in Armed Conflict, in RESEARCH HANDBOOK ON INTERNATIONAL ENVIRONMENTAL LAW 586, 591 (Malgosia Fitzmaurice et al. eds., 2010) [hereinafter "Hulme Environmental Protection"].
(15) See supra note 6.
(16) See, e.g., Hulme Environmental Protection, supra note 13; see also Ines Peterson, The Natural Environment in Times of Armed Conflict: A Concern for International War Crimes Law?, 22 LEDIN J. INT'L Law 325, 329 (2009).
(17) See generally SMITHSONIAN NAT'L MUSEUM OF NAT. HISTORY, CURRENTS, WAVES, AND TIDES: THE OCEAN in Motion, http://ocean.si.edu/ocean-news/currents-waves-and-tides-oceanmotion.
(18) The Amazon Rainforest, WORLD WILDLIFE FUND GLOBAL, http://wwf.panda.org/about_our_earth/teacher_resources/best_place_species/current_top_10/amazon_ra inforest.cfm.
(19) Ashley Barnes & Christopher Walters, The Arctic Environment and International Humanitarian Law, 49 CANADIAN Y.B. INT'L LAW 224, 227 (2011) [hereinafter "Barnes"] (citing K. Kondratyev et ah, Arctic Basin Population Dynamics, in ARCTIC ENVIRONMENT VARIABILITY IN THE Context of Global CHANGE 309 (Leonid Bobylev et al. cds., 2003). In fact, "as much as 60 percent of the ecological impact of oil spills in the Arctic is transmitted indirectly." Barnes & Walters at 213 (citing R.T. Paine et ah, Trouble on Oiled Waters: Lessons from the Exxon Valdez Oil Spill, 27 ANN. Rev. Ecology & Systematics 197,227 (1996)).
(20) Int'l Inst, of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994).
(21) Id. at Parti, [section] IV(11).
(22) S. Pacific Applied Geoscience Comm'n & United Nations Envtl. Program et al., Building Resilience in SIDS: The Environmental Vulnerability Index (2005) [hereinafter "EVI"]. For more information on the index see Building Resilience in SIDS: The EVI, EVI, http://www.vulncrabilityindex.net/2013/06/10/building-rcsiliencc-in-sids/ (providing information on the index).
(23) "Glacio-isostatic uplift" refers to the phenomenon of the rising of landmasses that were once depressed by ice sheets and glaciers. Thus islands appear, peninsulas expand, etc. High Coast/Kvarken Archipelago, UNITED NATIONS EDUC., SCI. & CULTURAL ORG. WORLD HERITAGE CONVENTION ("UNESCO"), http://whc.unesco.org/en/list/898. The overall uplift rate of the Kvarken Archipelago was approximately eight millimeters per year in 2008, causing approximately one hundred hectares of new land to appear per year. Olli Brcilin et al, Geological Heritage of The Kvarken Archipelago, Int'l Geological Congress, Oslo (2008), http://www.cprm.gov.br/33IGC/1339680.html.
(24) Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 1037 U.N.T.S. 15511 [hereinafter "World Heritage Convention"].
(25) See, e.g., Nigel Chamberlain, Increasing Military Activity in the Arctic, Briefing Paper No. 32, NATO Watch (Mar. 14, 2013), http://www.natowatch.org/sites/default/files/briefmg_paper_no.32_increase_in_military_activity_in_the_arctic.pdf.
(26) Eric Talmadge, Arctic Climate Change Opening Region to New Military Activity, Huffington POST, (Apr. 16, 2012), http://www.huffingtonpost.com/2012/04/16/arctic-climate-change-militaryactivity_n_1427565.html.
(28) Id:, see also James Jay Carafano et al., EUCOM Should Lead U.S. Combatant Commands in Defense of National Interests in the Arctic, HERITAGE FOUND. (Mar. 28, 2011), http://www.heritagc.org/rescarch/rcports/2011/03/ cucom-should-lead-us-combatant-commands-indefense-of-national-interests-in-the-arctic (calling for the United States to protect its Arctic interests).
(29) Barnes, supra note 19, at 223.
(30) Id. at 224 (citing Bjorn Munro Jenssen, Effects of Environment Changes and Pollution on Arctic and Antarctic Organisms, 157 COMP. BIOCHEMISTRY & PHYSIOLOGY-PART A: MOLECULAR and Integrative Physiology S40 (2010)).
(31) See generally ROB HUBERT, THE NEWLY EMERGING ARCTIC SECURITY ENVIRONMENT (2010) (discussing military buildup by Arctic States in recognition of their vital interests in a more accessible arctic).
(32) Id. at 23.
(33) CHRISTOPHER PENNY, INTERNATIONAL HUMANITARIAN LAW AND THE ARCTIC 1-2 (Oct. 29, 2010) available at http://ccil-ccdi.squarespace.com/ccil-conference-papers/2010/ (delivered at the 2010 Canadian Council on International Laws, Northern Exposure: International Law and the Challenge of the Arctic) [hereinafter "PENNY"].
(34) Russia Plants Flag on Arctic Floor, REUTERS (Aug. 8, 2007) http://www.cnn.cora/2007/WORLD/europe/08/02/arctic.sub.reut/index.html.
(35) Jon Mitchell, Russia's Territorial Ambition and Increased Military Presence in the Arctic, FOREIGN Pol'Y J. (Apr. 23, 2014), http://www.foreignpolicyjoumal.eom/2014/04/23/ russias-territorialambition-and-increased-military-presence-in-the-arctic/(citing both Russia to Create United Nava! Base System for Ships, Subs in Arctic--Putin, RT (Apr. 22, 2014), http://rt.com/news/154028-arcticrussia-ships-subs/ and US Navy Admits It Needs Massive Investment to Fight for Arctic Seaways Control, RT (Feb. 28, 2014), http://rt.com/usa/us-navy-arctic-plans-146/).
(36) Environment and International Humanitarian Law, INT'L COMM. RED CROSS (Oct. 29, 2010), http://www.icrc.org/eng/war-and-law/conduct--hostilities/environment-warfare/overview-environmentand-warfare.htm.
(37) Michael Mandelbaum, Vietnam: The Television War, 111 DAEDALUS 157 (1982).
(38) Marco Roscini, Protection of Natural Environment in Time of Armed Conflict, in International Humanitarian Law--An Anthology 155, 159 (Azizur Chowdhury et al. eds., 2009) [hereinafter "Roscini"].
(39) Wolfgang Burhennc, The Prohibition of Hostile Military Activities in Protected Areas, 27 ENVTL. Pol'Y & L. 373, 373 (1997) [hereinafter "Burhenne"].
(40) See Yoram Dinstein, Conduct of Hostilities Under the Law of International Armed CONFLICT 205 (2nd cd. 2010) [hereinafter "Conduct of Hostilities"] (citing Jean De Preux & Claude Pilloud, Article 35, in Commentary on the Additional Protocols Of 8 June 1977 To THE geneva Convention OF 12 AUGUST 1949 389, 419 (Yves Sandoz et al. eds., 1987)) [hereinafter "De Preux"].
(41) Yoram Dinstein, Protection of the Environment in International Armed Conflict, MAX PLANCK Y.B. UNITED Nations L. 523, 532 (2001) (citing Frits Kalshoven, Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts: The Diplomatic Conference, Geneva, (1974-1977,) Part 11, 9 NETHERLANDS Y.B. INT'L L. 107, 130-31 (1978)) [hereinafter "Dinstein Max Planck"].
(42) Supra note 7, art. 1(1).
(43) An example of an environmental modification technique is the cloud seeding seen in the Vietnam War to attempt to prolong the monsoon season and block enemy supply routes. See Michel Chossudovsky, Climate Change, Geoengineering and Environmental Modification Techniques (ENMOD), GLOBALRESEARCH Report (Nov. 18, 2013), available at http://www.globalresearch.ca/climate-change-geoengineering-and-cnvironmental-modificationtechniqucs-enmod/5357966.
(44) A.P.V. Rogers, Law on the Battlefield 110 (1996).
(45) See Bouvier, supra note 1, at 564.
(46) See Dinstein Max Planck, supra note 41, at 526-29.
(47) Supra note 7, art. 1(1).
(48) Supra note 7, art. 3(1).
(49) Michael Schmitt, Green War: An Assessment of the Environmental Law of International Armed Conflict, 22 YALE J. INT'L L. 1, 51 (1997), (citing RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW Of The UNITED States [section] 102(2) (1987)) [hereinafter "Green War"].
(50) Antonio Cassese, International Law 419-20 (2d ed. 2005).
(51) See Conduct of Hostilities, supra note 40, at 206.
(52) See Dinstein Max Planck, supra note 41, at 530.
(53) See Roscini, supra note 38, at 8 (citing Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols, in HUMANITARIAN LAW Of ARMED CONFLICT: CHALLENGES AHEAD 93, 105 (Astrid Dclissen ed., 1991)).
(54) Michael Matheson, Session one: The United States Position on the Relation of Customary International Law to the 1977 Protocols to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. & POL'Y 419, 424(1987).
(55) [hereinafter "ICJ"].
(56) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J 226, [section] 31 [hereinafter "Nuclear Weapons Advisory Opinion"].
(57) Jean-Marie Henckacrts & Louise Doswald-Beck, Customary International Humanitarian Law Volume I: Rules, International Committee of the Red Cross 151-52 (2009) [hereinafter "ICRC CIHL"].
(58) Rome Statute of the International Criminal Court art. 8(2)(b)(iv), Nov. 10, 1998, 2187 U.N.T.S. 38544.
(59) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects 172, Oct. 10, 1980, 1342 U.N.T.S. 22495.
(60) Jozcf Goldblat, Legal Protection of the Environment Against the Effects of Military Activities, 22 BULL. PEACE PROPOSALS 399, 403 (1991).
(61) Frits Kalshoven & Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law 157 (2011).
(62) See UN Convention of the Law of the Sea art. 192, Dec. 10, 1982, 1833 U.N.T.S. 31363 ("States have the obligation to protect and preserve the marine environment.").
(63) See Antarctic Treaty art. 5, H1, Dec. 1, 1959, 402 U.N.T.S. 5778 ("Any nuclear explosions in Antarctica and the disposal there of radioactive waste material shall be prohibited.").
(64) See UN Framework Convention on Climate Change art. 4, 1(f), Mar. 21, 1994, 1771 U.N.T.S. 30822 (parties agree to "[t]ake climate change considerations into account, to the extent feasible, in their relevant social, economic, and environmental policies....").
(65) See, e.g., Convention on the Conservation of European Wildlife and Natural Habitats art. 4,11, Sept. 19, 1979, 1284 U.N.T.S. 21159 ("Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species....").
(66) Michael Schmitt, Green War: An Assessment of the Environmental Law of International Armed Conflict, 22 YALE J. INT'L. L. 1, 37 (1997); see also Techt v. Hughes 128 N.E. 185, 191 (N.Y. 1920) ("International law today does not preserve treaties or annul them, regardless of the effects produced.").
(67) See, e.g., International Convention for the Prevention of Pollution of the Sea by Oil art. 19, [paragraph] I, May 12, 1954, 327 U.N.T.S. 4714 ("In case of war or other hostilities, a Contracting Government ... may suspend the operation of the whole or any part of the present Convention...."). But see Richard Tarasofsky, Legal Protection Of The Environment During International Armed Conflict, 24 NETH. Y.B. INT'L. L. 17, 61 (1993) (noting most environmental treaties' silence on their applicability during hostilities).
(68) Silja Voneky, A New Shield for the Environment: Peacetime Treaties as Legal Restraints of Wartime Damage, 9 REV. EUR. COMMUNITY & INT'L. ENVTL. L. 20, 22-23 (2000).
(69) Michael Bothe, The Protection of the Environment in Time of Armed Conflict, 34 Ger. Y.B. INTL. L. 54, 59(1991).
(70) Anthony Leibler, Deliberate Wartime Environmental Damage: New Challenges for International Law, 23 CAL. W. INT'L L.J. 67, 69-70 (1992).
(71) See Schmitt, supra note 666, at 38.
(72) Ministry of External Affairs, Chairman's Conclusions, Conference of Experts on the Use of the Environment as a Tool of Conventional Warfare (July 10-12, 1991) (unpublished, on file with author).
(73) Adam Roberts, Chapter XIV: Environmental Issues in International Armed Conflict: The Experience of the 1991 Gulf War, 69 U.S. NAVAL WAR COL. INT'L L. STUD. SER. 222, 226 (1996).
(74) International Covenant on Economic, Social, and Cultural Rights art. 12, Dec. 16, 1966, 993 U.N.T.S. 3.
(75) See Voneky, supra note 688, at 23-24.
(76) Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter "Hague Cultural Property"].
(77) Convention for the Protection of the World Cultural and Natural Heritage arts. 1-4, Nov. 16, 1972, 1037 U.N.T.S. 152.
(78) The World Heritage Convention, UNESCO, http://whc.unesco.org/cn/convention (last visited Jan 25, 2014).
(79) Richard Tarasofsky, Protecting Especially Important Areas During International Armed Conflict: A Critique Of the IUCN Draft Convention on the Prohibition of Hostile Military Activities, in The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives, 567, 569 (Jay Austin & Carl Bruch cds., 2000).
(81) See Burhenne, supra note 39, at 376.
(82) S.C. Res. 844, U.N. Doc. S/Rcs/844 (June 18, 1993); S.C. Res. 836, U.N. Doc. S/Res/836 (June 4, 1993); S.C. Res. 824, U.N. Doc. S/Res/824 (May 6, 1993); S.C. Res. 819, U.N. Doc. S/Res/819 (Apr. 16, 1993).
(83) Burhenne, supra note 39, at 376.
(84) Hague Convention (IV) Respecting the Laws and Customs of War on Land art. 23(g), Oct. 18, 1907, 187 C.T.S. 227 [hereinafter "Hague IV"]; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War art 147, Aug. 12, 1949, 75 U.N.T.S. 973; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea art 51, Aug. 12, 1949, 75 U.N.T.S. 971; Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 50, Aug. 12, 1949, 75 U.N.T.S. 970.
(85) Hague IV, supra note 84, art. 23(e).
(86) George Walker ct al., Panel Discussion: Existing Legal Framework, in U.S. NAVAL WAR COL. INT'L L. STUD. SER., 288, 298 (1996).
(87) E.g., Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 94 L.N.T.S. 65.
(88) Antoine Philippe, International Humanitarian Law And The Protection Of The Environment In Time Of Armed Conflict, 32 INT'L REV. RED CROSS 517, 529 (1992) (citing NAPALM And Other incendiary Weapons And All Aspects Of Their Possible use: Report Of The Secretary-General 55 [section]-189 (1973) [hereinafter "Philippe"]).
(89) See discussion supra Part III(B).
(90) See Hague Cultural Property, supra note 766, art. I.
(91) Michael Diederich, Jr., "Law of War" and Ecology--A Proposal for a Workable Approach to Protecting the Environment Through the Law of War, 136 Mil. L. Rev. 137, 148 (1992).
(94) Hague IV, supra note 84, Preamble.
(95) Michael Schmitt, War and the Environment: Fault Lines in the Prescriptive Landscape, 37 Archiv des Volkerrechts 25,43 (1999).
(96) What Are Specialized Species?, ONT. SPECIALIZED SPECIES CTR., http://www.conscrvationcentre.org/specialized_species.html.
(97) Understandings Regarding the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, INT'L COMM. RED CROSS (Dec. 10, 1976), http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=opcnDocument&documentld=A951B510E949 1F56C12563CD0051FC40 [hereinafter "ICRC ENMOD Understandings"].
(98) See De Preux, supra note 400, at 416.
(99) DOCUMENTS ON THE Laws OF War, 461-63 (Adam Roberts and Richard Guclff cds., 2000).
(100) Julian Wyatt, Law-Making at the Intersection of International Environmental, Humanitarian and Criminal Law: The Issue of Damage to the Environment in International Armed Conflict, 92 INT'L Rev. Red Cross 593,624 (2010).
(101) See 1CRC ENMOD Understandings, supra note 97.
(102) See Hulme War Tom Environment, supra note 11, at 20, 90.
(103) See Dicdcrich, supra note 91, at 139.
(104) Such as A.P.V. Rodgers and Adam Roberts.
(105) United States: Department of Defense Report to Congress on the Conduct of the Persian Gulf War--Appendix on the Role of the Law of War, 41 INT'L LEGAL MATERIALS 612,636-37 (1992).
(106) See Roberts, supra note 73, at 232-33.
(107) See Green War, supra note 49, at 73.
(108) See Hague IV, supra note 84, art. 22; AP-I, supra note 6, art. 36(1); Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, St. Petersburg, INT'L COMM. Red Cross (Dec. 11, 1868), https://www.icrc.org/ihl/INTRO/1307OpenDocumcnt.
(109) See Green War, supra note 49 at 51-61 (dividing additionally into humanity and chivalry, which are beyond the scope of this Article).
(110) Hostage Case (US V List), 11 TRIALS OF War CRIMINALS 759, 1253-54(1950).
(111) INT'L COURT OF JUSTICE, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, INT'L COURT OF JUSTICE REP., 226 ICJ 242 (1996).
(112) Louise Doswald-Bcck, International Humanitarian Law and the Advisory Opinion of the International Court Of Justice On The Legality Of The Threat Of Nuclear Weapons, 316 INT'L REV. Red CROSS (1997), available at http://www.icrc.org/eng/resources/documents/misc/57jnfm.htm.
(113) Richard Falk, The Inadequacy of the Existing Legal Approach to Environmental Protection in Wartime, in The ENVIRONMENTAL CONSEQUENCES OF WAR: LEGAL, ECONOMIC AND SCIENTIFIC PERSPECTIVES 137, 144 (Jay Austin & Carl Bruch eds., 2000).
(114) See Green War, supra note 49, at 53.
(115) Id. at 60.
(116) Id. at 55.
(117) Id. at 56.
(118) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 679, 242 [paragraph] 30 (July 8).
(119) International Criminal Tribunal for the Former Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 39 INT'L LEGAL MATERIALS 1257, 1263 (2000).
(120) See Hague IV, supra note 84, art. 23.
(121) Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, art. 53, Aug. 12, 1949, 75 U.N.T.S. 973.
(122) See Green War, supra note 49, at 66 (citing Falk, The Environmental Law of War: An Introduction, in ENVIRONMENTAL PROTECTION AND THE LAW OF WAR: A 'FIFTH GENEVA' Convention on the Protection of the Environment in Time of Armed Conflict, 78, 88 (Glen Plan cd., 1992)).
(123) Rome Statute of the International Criminal Court art. 8(2)(a)(iv), July 17, 1998, A/CONF. 183/9.
(124) Protection of the Environment in Times of Armed Conflict, G.A. Res. 47/37, U.N. Doc. A/RES/47/1 (Feb. 9, 1993) (stressing that "destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law.").
(125) See Nuclear Weapons Advisory Opinion, supra note 56, [paragraph] 70.
(126) See Conduct of Hostilities, supra note 40, at 213 (citing ICRC CIHL, supra note 57, at 143-45).
(127) John Knox, United Nations Human Rights Office of the High Commissioner for Human Rights, Special Rapporteur on Human Rights and the Environment (Former Independent Expert On Human Rights And The Environment) (2012), available at http://www.ohchr.org/EN/Issucs/Environment/SREnvironment/Pages/SRcnvironmentIndcx.aspx.
(128) See EVI, supra note 22.
(129) World Charter for Nature, G.A. Res 37/7, U.N. Doc A/Res/37/7 (Oct. 28, 1982).
(130) See Conduct of Hostilities, supra note 40, at 198 (citing Customary International Humanitarian Law at 143, 145-46).
(131) See Nuclear Weapons Advisory Opinion, supra note 56, H 29.
(132) See Conduct of Hostilities, supra note 40, at 203.
(133) See Barnes, supra note 19, at 219.
(134) See Green War, supra note 49, at 59.
(135) Glen Plant, Elements of a 'Fifth Geneva' Convention on the Protection of the Environment in Time of Armed Conflict, in ENVIRONMENTAL PROTECTION AND THE LAW OF WAR: A 'FIFTH GENEVA' Convention on the Protection of the Environment in Time of Armed Conflict 37, 38 (Glen Plan ed., 1992).
(136) Id. at 188.
(137) See id. at 46 (discussing the four options).
(138) Principal Legal Officer of the United Nations until 1989.
(139) Paul Szasz, Environmental Destruction as a Method of Warfare: International Law Applicable to the Gulf War, 15 DISARMAMENT 128, 151-53 (1992).
(140) Convened in Newport, Rhode Island, USA in 1996.
(141) Paul Szasz, Chapter XV: Comment, in 69 INTERNATIONAL LAW STUDIES: PROTECTION OF the Environment During Armed Conflict 278, 280 (Richard Grunwalt et al. eds., 1996) (citing Conrad Harper, Chapter II: Opening Address, in 69 INTERNATIONAL LAW STUDIES: PROTECTION OF THE ENVIRONMENT DURING ARMED CONFLICT 8, 13 (Richard Grunwalt et al. eds., 1996)).
(142) See, e.g., Bouvier, supra note 1; Szasz, supra note 141; Walker, supra note 86.
(143) James Terry, The Environment and the Laws of War: The Impact of Desert Storm, in 68 INTERNATIONAL Law Studies 533, 534-35 (John Moore and Robert Turner eds., 1995).
(144) See Green War, supra note 49, at 65.
(145) See supra Part 111(C).
(146) See PENNY, supra note 33, at 6.
(147) See Glen Plant, Government Proposals and Future Prospects, in ENVIRONMENTAL Protection and the Law of War: A 'Fifth Geneva' Convention on the Protection of the Environment in Time of Armed Conflicts 170,187-90 (Glen Plant ed., 1992).
(148) See Szasz, supra note 1411, at 282-83.
(149) Id. at 283.
(150) See Bouvier, supra note 1, at 557.
Michaela Halpern, Received LLM with distinction from the Georgetown University Law Center in 2015 and LL.B. Honors from the University of Edinburgh in 2014. Previously published Defensive Armed Reprisals: An Expression of Legitimate Self-Defence or an Abuse of Power?--An Examination of Dr. Yoram Dinstein 's Thesis, 2 EDINBURGH STUDENT L. REV. 50 (2014).
|Printer friendly Cite/link Email Feedback|
|Publication:||Stanford Journal of International Law|
|Date:||Jun 22, 2015|
|Previous Article:||Labor protection and investment regulation: promoting a virtuous circle.|
|Next Article:||Egypt's ban on public interest litigation in government contracts: a case study of "judicial chill".|