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The Protection of Environment & Natural Resources

While the main focus of human rights and international humanitarian law is the protection of people, the natural environment, something to be valued by all, is of itself subject to additional protection.

During armed conflict, one issue which is often overlooked is the harm that armed conflict can cause on the natural environment. From Vietnam, Afghanistan, the Gaza Strip, Iraq, Sudan armed conflict has caused significant harm to the environment. According to UNEP Direct and indirect damage, coupled with the collapse of institutions, lead to environmental risks that can threaten people’s health, livelihoods and security, and ultimately undermine post-conflict peace building.[1]

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In order to limit such harm international law has set out some protections for the environment during conflict, however many see such protections as being inadequate.

Protection of Natural Environment during Armed Conflict

In addition to the specific rules set out below, the general principles of international law applicable in armed conflict - such as the principle of distinction and the principle of proportionality - provide protection to the environment. In particular, only military objectives may be attacked and no methods or means of warfare which cause excessive damage shall be employed. Precautions shall be taken in military operations as required by international law.

General rules: Articles 35 & 55 API

Heavily influenced by the Vietnam War the Additional Protocol to the Geneva Conventions of 1977 Article 35 and 55 set out a prohibition on causing “widespread, long term and severe” damage to the environment. The terms “long term”, “widespread” and “severe” are not clearly defined, but generally understood set very high thresholds. In addition the need to establish all three criteria results in the setting of a very high threshold for illegal behavior: some believe such a standard is nearly impossible to establish. Experts on the protection of the environment have deemed the protections under API as being “both excessively restrictive and unclear.”[2] For example for damage to have a long term impact it is seen that this would have to last decades.[3]

The prohibition on inflicting widespread, long-term and severe damage to the natural environment is also repeated in the Guidelines on the Protection of the Environment in Times of Armed Conflict and the UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law.

ENMOD

UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques, 1976

Following concern surrounding some of the tactics employed by the United States military during the Vietnam War, the ENMOD Convention was created as a way of prohibiting the use of environmental modification techniques as a means or weapons of warfare.  The Convention hence looks to prohibit the extensive use of chemical defoliants (such as Agent Orange) and tsunamis.

What is the difference between ENMOD and Article 35 in Additional Protocol One?

Article 35(3) of Additional Protocol I aims to protect the natural environment as such, while ENMMOD prohibits the use of techniques that turn the environment into a “weapon.”

One key difference between Article 35/55 of API and ENMOD, is that ENMOD requires a much lower threshold of damage, removing the cumulative standard in API and replacing it is with a single criteria: widespread or long-lasting or severe.

In addition, the terms themselves are interpreted differently.  Under ENMOD the term “long-lasting” is defined a period of months or a season, compared to decades under Additional Protocol I.

According to the UNEP  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.[4]

Protection of Natural Resources during Occupation

During a situation of occupation, an occupying power has the obligation under Article 43 of the Hague Regulations to ensure law and order and civil life and then under Article 55 of the Hague Regulations is the administrator public property, including natural resources. Article 55 makes it clear that:

The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

Under the rules of usufruct the Occupying Power may administer public property situated in the occupied territory and enjoy the use of real property for the purposes meeting the needs of the army of occupation. However they cannot use any resources in a manner which decreases its value or depletes the resource. The classic example of usufruct would be to take the apple of an apple tree to feed the occupying army, but it would be unlawful if the tree was chopped down.

It is strictly forbidden to use State property of the occupied territory to draw economic benefits for the Occupying Powers economy or inhabitants.

Natural resources and self determination

In addition, exploitation of natural resources by an alien actor such as an occupying power may lead to concerns over possible violations of the right of self-determination (read more about self-determination).

In 2001, the UN General Assembly declared the 6th of November of each year as the International Day for Preventing the Exploitation of the Environment in War and Armed Conflict

The General Assembly has linked the right of self-determination with ‘permanent sovereignty over natural resources.’[5] Hence as a central component to self-determination, any steps which undermine an occupied population’s ability to freely dispose of their natural wealth would be in contravention of international law. 



[1] Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law, UNEP, p4. Available online at https://www.un.org/zh/events/environmentconflictday/pdfs/int_law.pdf

[2] Bothe, Brusch, Diamond & Jensen, “International law protecting the environment during armed conflict: gaps and opportunities”, International Review of the Red Cross, Volume 92 Number 879 September 2010, at 570.

[3] See official commentary on the 1977 Additional Protocol I, Article 35, http://www.icrc.org/ihl.nsf/COM/470-750044?OpenDocument

[4] Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law, UNEP, p4. Available online at https://www.un.org/zh/events/environmentconflictday/pdfs/int_law.pdf at 12

[5] UNGA Res 3175 (XXVIII) (17 December 1973) UN Doc. A/RES/3175(XXVIII); UNGA Res 1803 (XVII) (14 December 1962) UN Doc. A/RES/1803(XVII); Armed Activities Congo/Uganda(n 192) paragraph 244-245.