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International Treaties on Environmental Regulation

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International Treaties on Environmental Regulation

Customary law and general principles relating to the environment, such as the ‘precautionary principle’ and sustainable development, are evolving but it is arguable whether any have yet become normative rules.

The speed with which awareness of global environmental problems has reached the international political agenda has meant that customary law has tended to take second place to treaty law in the evolution of legal norms, and treaties have been the main method by which the international community has responded to the need to regulate activities which threaten the environment.

There are hundreds of bilateral and multilateral environmental treaties creating states’ rights and obligations. The UN Environment Program (UNEP) and the UN Commission on Sustainable Development have negotiated many of these treaties.

Treaties generally concern one of the following broad subjects: toxic and hazardous substances, nuclear damage, ocean and marine sources, ozone and protection of the atmosphere, pollution, biodiversity and the protection and conservation of species and wildlife, sustainable development, and trade and the environment.

The Globalex Guide on International Environmental Legal Research provides a useful table of these subjects together with links to the agreements and relevant agencies. Descriptions of the major environmental treaties by subject can also be found on the ILO website.

According to the UN Audiovisual Library of International Law website, the following major IEL treaties:

  1. Vienna Convention for the Protection of the Ozone Layer, 1985, and Montreal Protocol on Substances that Deplete the Ozone Layer, 1987
  2. Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, 1989
  3. Convention on Biological Diversity, 1992, and Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2000
  4. United Nations Framework Convention on Climate Change, 1992 (UNFCCC)
  5. Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1997
  6. United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 1994 (UNCCD)
  7. Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997

International Framework for Regulating Armed Conflict

The international humanitarian law (IHL)

The first body of law to consider in an analysis of the protection of the environment during armed conflict is international humanitarian law (IHL). The international humanitarian law (IHL) set of laws that seek to regulate war and armed conflict for humanitarian reasons.

IHL essentially focuses on two issues: the protection of persons who are not, or are no longer, taking part in the hostilities; and restrictions on the means and methods of warfare, including weapons and military tactics. IHL can only apply to armed conflict and does not cover internal tensions or disturbances, such as isolated acts of violence. In addition, the law applies only after a conflict has begun, and then equally to all sides, regardless of who first engaged in the hostilities.

Sources of international humanitarian law (IHL)

The sources of international humanitarian law (IHL) include the following: Treaty, Customary law, Soft laws and Case law

  1. Treaty: International treaties, protocols and similar instruments that have been negotiated and ratified by participating States, including the four Geneva Conventions of 1949 and Additional Protocols I and II of 1977, the ENMOD convention of 1976 prohibiting environmental modification techniques, and a number of other specific conventions and protocols dealing with various aspects of warfare, such as limiting or prohibiting biological, chemical or nuclear weapons.
  2. Customary law practice, under the general belief that particular obligations bind all States, in contrast with treaty law, which applies only: Shared international rules established through widespread and uniform State to those States that expressly consent to the respective treaties. In this context, customary law includes the norms of jus cogens from which no derogation is permitted, and grave breaches of IHL as defined in the Geneva Conventions and Additional Protocol I.
  3. Soft law: Norms that arise from action taken by international bodies such as the United Nations, including resolutions, decisions, codes of conduct and guidelines. By nature, soft law is not legally binding, though principles articulated in UN General Assembly or Security Council resolutions with widespread acceptance may be recognized as customary international law. To the extent that they are recognized as such, their provisions are binding on all States.
  4. Case law: Decisions taken by judicial bodies at national or international levels, which are helpful for treaty interpretation or as evidence of customary law, as well as for assessing the practical gaps in the existing provisions of IHL governing environmental protection during armed conflict.

UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques (ENMOD) (1976)

The ENMOD Convention was established as a reaction to the military tactics employed by the United States during the Viet Nam War. These included plans for large-scale environmental modification techniques that had the ability to turn the environment into a weapon, for instance by provoking earthquakes, tsunamis, or changes in weather patterns – what some commentators have called “geophysical warfare.”

The Convention was also a reaction to the use of large quantities of chemical defoliants (known as Agents Orange, White and Blue), which resulted in extensive human suffering (death, cancer and other illnesses, mutations, and birth defects) and long-term environmental contamination, as well as very significant destruction of forests and wildlife.

The objective of the ENMOD’s was to prohibit the use of environmental modification techniques as a means of warfare. Article (1) requires that “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.”

Hence, while Article 35(3) of Additional Protocol I aim to protect the natural environment per se, ENMMOD prohibits the use of techniques that turn the environment into a “weapon.” Although UNEP helped convene the negotiations that led to the ENMOD Convention, it has not had a systematic role in monitoring its implementation and enforcement.

Another noticeable difference with the article of Additional Protocol I is that ENMOD requires a much lower threshold of damage, with the triple cumulative standard being replaced by an alternative one: “widespread, long-lasting or severe.” In addition, it appears that the terms were interpreted differently. For instance, under ENMOD the term “long-lasting” is defined as lasting for a period of months or approximately a season, while under Additional Protocol I “long-term” is interpreted as a matter of decades. It could be concluded that ENMOD has to date proven relatively successful and effective, as no other “Viet Nam scenarios” of large-scale environmental modification tactics have been reported since 1976.

The Geneva Convention IV (1949)

The Geneva Convention IV (1949) relates to the treatment of civilians and property during armed conflict and occupation, declaring non-combatants “protected persons” whose lives and livelihoods shall be kept safe. In a reiteration of the Hague Regulations rule on enemy property, Article 147 lists “extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly” among the acts constituting “grave breaches” of the Convention.

Furthermore, in the specific context of occupation, Article 53 states that “any destruction by the Occupying Power of real or personal property belonging individually or collectively to individuals, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

As natural resources are generally considered civilian property, belonging collectively to private persons, their destruction could be considered to violate Articles 147 and 53 of the Geneva Convention IV, if not justified by imperative military necessity.

Additional Protocol I to the 1949 Geneva Conventions (1977)

The “basic rule” for the protection of civilian objects against the effects of hostilities is enunciated under Article 48 of Additional Protocol I to the Geneva Conventions. Article 48 provides indirect protection for the environment by stating that “in order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

This basic rule is an explicit affirmation of the general principle of distinction. This principle is re-emphasized within the rule contained in Article 52, which explains what constitutes a military objective as opposed to a civilian object.

Article 54(2) of Additional Protocol I also indirectly protects the environment by prohibiting attacks against “objects indispensable to the survival of the civilian population,” meaning objects that are of basic importance to the population’s livelihood. Natural resources such as agricultural land, cattle, and drinking water could in many instances be seen as such means of survival.

This provision is generally considered to reflect customary international law as its violation would constitute a grave breach of IHL if it amounted to any of the acts enumerated within Article 147 of Geneva Convention IV. In addition, Article 54(3) (b) applies even when farmlands and foodstuffs are used in direct support of military action, if their destruction were to cause starvation or forced relocation of the civilian population. The effect of this provision is also to exclude, except in defence of a State’s own territory, recourse to scorched-earth policies that cause severe environmental destruction.

Finally, the precautionary measures contained within Article 57, which also recall the proportionality principle, add protection for the environment by discouraging acts that could possibly impact the environment.

Additional Protocol II to the 1949 Geneva Conventions (1977)

Additional Protocol II specifically addresses issues of protection during non-international armed conflict (NIAC). This Protocol is significantly less substantive than Additional Protocol I, not least because it does not contain the basic rule that strongly articulates the principle of distinction enunciated in Article 48 of Additional Protocol I.

The provisions that indirectly address environmental protection are Article 14 on civilian objects, Article 15 on installations containing dangerous forces and Article 16 on cultural objects and places of worship. Article 14 prohibits attacks on objects indispensable to civilian populations, including foodstuffs, agricultural land, crops, livestock, drinking water installations and irrigation works. It thus replicates for internal conflicts the protection provided by Article 54 of Protocol I applicable to international armed conflict (IAC). Articles 15 and 16 are discussed in more detail below.

The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols (1954 and 1999)

The Convention for the Protection of Cultural Property in the Event of Armed Conflict was adopted at The Hague (Netherlands) in 1954 in the wake of massive destruction of cultural heritage during the Second World War.  It is the first international treaty with a world-wide vocation focusing exclusively on the protection of cultural heritage in the event of armed conflict.

during the Second World War.  It is the first international treaty with a world-wide vocation focusing exclusively on the protection of cultural heritage in the event of armed conflict.

It covers immovable and movable cultural heritage, including monuments of architecture, art or history, archaeological sites, works of art, manuscripts, books and other objects of artistic, historical or archaeological interest, as well as scientific collections of all kinds regardless of their origin or ownership.

The States Parties to the Convention benefit from their mutual commitment, with a view to sparing cultural heritage from consequences of possible armed conflicts through the implementation of the following measures:

  1. Adoption of peacetime safeguarding measures such as the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property;
  1. Respect for cultural property situated within their own territory as well as within the territory of other States Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property;
  2. Consideration of the possibility of registering a limited number of refuges, monumental centres and other immovable cultural property of very great importance in the International Register of Cultural Property under Special Protection order to obtain special protection for such property;
  3. Consideration of the possibility of marking of certain important buildings and monuments with a distinctive emblem of the Convention;
  4. Establishment of special units within the military forces to be responsible for the protection of cultural property;
  5. Sanctions for breaches of the Convention; and,

Wide promotion of the Convention within the general public and target groups such as cultural heritage professionals, the military or law-enforcement agencies.

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