258
Deemed to Be Excessively Injurious or to Have Indiscriminate Effects also known
as 1980 Inhuman Weapons Convention), the 1993 Chemical Weapons Convention,
the 1959 Antarctic Treaty and the 1967 Outer Space Treaty, the ICRC multi-volume
explanation of customary IHL that includes 161 rules, three of which are dedicated
to the protection of environment and natural resources; last but not least the Draft
Convention on the Prohibition of Hostile Military Activities in Protected Areas,
strongly advocated by the International Union for the Conservation of Nature
(IUCN). The last document was developed right after the Gulf War in 1990–1991 in
response to the risks of environmental and ecosystem damages in armed conflict.
Together with all these legal texts, soft law is somehow a significant guidance in
interpreting this complex picture, providing indications or suggestions in many
aspects of environmental protection or enforcement means, through Resolutions of
the General Assembly, ICRC Guidelines for Military Manuals and Instructions on
the Protection of the Environment in Times of Armed Conflict, statements and
regional documents and so on. It is worth adding that several relevant tribunals or
arbitration tribunals and courts have also been established, giving rise to extensive
jurisprudence in matters of environmental law as in matters of international criminal
responsibility.
The progressive expansion in scope and in the protection under international law
has created a complicated system, where separations undoubtedly are real, due to
the all the existing subsystems of international law. The result is a deep fragmentation of international law where the real problem is not which body of law is applicable to a particular context, but how a specific problem can be solved by inferencing
rules from different sources of law. This is in fact the central problem for damages
in armed conflict, explicitly the applicability of different rules deriving from different sources of international law, sometimes with conflicting or unclear criteria,
including those pertaining to international environmental law, to military activities
and warfare. Julian Wyatt has elaborated this vision and affirms that the problem of
environmental damage lies at the intersection of the relevant branches of the law,
specifically international humanitarian law, international environmental law and
international criminal law (Wyatt 2010).
The relevance of the overlapping of applicable bodies of law is visible in some
situations. While in times of conflict Law of Armed Conflict is considered the applicable body of law, to some extensions it suspends other bodies of international law.
Nonetheless to mitigate these effects some non-nuclear weapons States have
affirmed that environmental agreements should continue to apply. Rules deriving
from the principles present in the Stockholm and Rio Declarations should not be
considered inapplicable as they both precisely refer to environmental risks in war.
Somehow by-passing the argument, some nuclear States affirm that “without
addressing the general question of the applicability of multilateral environmental
agreements during conflict, [...] such agreements (Principle 21/Principle 2) could
not be construed as prohibiting the threat or use of nuclear weapons because they
did not address the nuclear weapons per se and could not be construed as containing an implied prohibition on their use”. However what is necessary and proportionate in conformity with the principles of Law of Armed Conflict in terms of
G. Colao
Deemed to Be Excessively Injurious or to Have Indiscriminate Effects also known
as 1980 Inhuman Weapons Convention), the 1993 Chemical Weapons Convention,
the 1959 Antarctic Treaty and the 1967 Outer Space Treaty, the ICRC multi-volume
explanation of customary IHL that includes 161 rules, three of which are dedicated
to the protection of environment and natural resources; last but not least the Draft
Convention on the Prohibition of Hostile Military Activities in Protected Areas,
strongly advocated by the International Union for the Conservation of Nature
(IUCN). The last document was developed right after the Gulf War in 1990–1991 in
response to the risks of environmental and ecosystem damages in armed conflict.
Together with all these legal texts, soft law is somehow a significant guidance in
interpreting this complex picture, providing indications or suggestions in many
aspects of environmental protection or enforcement means, through Resolutions of
the General Assembly, ICRC Guidelines for Military Manuals and Instructions on
the Protection of the Environment in Times of Armed Conflict, statements and
regional documents and so on. It is worth adding that several relevant tribunals or
arbitration tribunals and courts have also been established, giving rise to extensive
jurisprudence in matters of environmental law as in matters of international criminal
responsibility.
The progressive expansion in scope and in the protection under international law
has created a complicated system, where separations undoubtedly are real, due to
the all the existing subsystems of international law. The result is a deep fragmentation of international law where the real problem is not which body of law is applicable to a particular context, but how a specific problem can be solved by inferencing
rules from different sources of law. This is in fact the central problem for damages
in armed conflict, explicitly the applicability of different rules deriving from different sources of international law, sometimes with conflicting or unclear criteria,
including those pertaining to international environmental law, to military activities
and warfare. Julian Wyatt has elaborated this vision and affirms that the problem of
environmental damage lies at the intersection of the relevant branches of the law,
specifically international humanitarian law, international environmental law and
international criminal law (Wyatt 2010).
The relevance of the overlapping of applicable bodies of law is visible in some
situations. While in times of conflict Law of Armed Conflict is considered the applicable body of law, to some extensions it suspends other bodies of international law.
Nonetheless to mitigate these effects some non-nuclear weapons States have
affirmed that environmental agreements should continue to apply. Rules deriving
from the principles present in the Stockholm and Rio Declarations should not be
considered inapplicable as they both precisely refer to environmental risks in war.
Somehow by-passing the argument, some nuclear States affirm that “without
addressing the general question of the applicability of multilateral environmental
agreements during conflict, [...] such agreements (Principle 21/Principle 2) could
not be construed as prohibiting the threat or use of nuclear weapons because they
did not address the nuclear weapons per se and could not be construed as containing an implied prohibition on their use”. However what is necessary and proportionate in conformity with the principles of Law of Armed Conflict in terms of
G. Colao