An Old Debate Revisited: Applicability of Environmental Treaties in Times of International Armed Conflict Pursuant to the International Law Commission's ‘Draft Articles on the Effects of Armed Conflict on Treaties’*

• Date: 01 July 2012
• Published date: 01 July 2012
• Author: Adrian Loets
• DOI: http://doi.org/10.1111/j.1467-9388.2012.00749.x

An Old Debate Revisited: Applicability of

Environmental Treaties in Times of International

Armed Conf‌lict Pursuant to the International Law

Commission’s ‘Draft Articles on the Effects of

Armed Conf‌lict on Treaties’*

Adrian Loets

The law of war relating to the protection of the envi-

ronment is ineffective and fragmented. This article

argues that the application of international environ-

mental law during such times could significantly

reduce the environmental toll of armed conflict. The

applicability of peacetime agreements between bellig-

erent States has remained controversial for decades.

In November 2011, the United Nations General Assem-

bly’s Legal Committee adopted the International Law

Commission’s ‘Draft Articles on the effects of armed

conflict on treaties’. These contain a presumption of

continuation for a number of subject matters, includ-

ing environmental law. The contribution analyzes

the systematic structure of the ILC Draft Articles in

relation to the prevailing case law, State practice and

doctrine and provides an interpretation. In a second

step, subject matters containing an environmental

notion are presented and discussed. It is concluded

that although the Draft Articles represent an impor-

tant milestone, further regulation of wartime environ-

mental damage is needed.

INTRODUCTION

With thirty armed conflicts worldwide in 2010,1war

continues to be a common occurrence. The fighting

often leads to significant human suffering, sometimes

triggering a humanitarian intervention, as happened

in Libya in 2011. In order to alleviate the effects on

humans, the belligerents are presently subjected to

numerous restrictions by international humanitarian

law. The International Criminal Court (ICC), estab-

lished in 1998, prosecutes individuals charged with the

most extreme violations of these minimum standards.

Whereas noteworthy progress has been made in

making war more humane, the serious environmental

toll of war fails to arouse much public attention. Envi-

ronmental degradation occurs as a direct consequence

of military operations – intentionally, as in the case

of the defoliation of Vietnamese jungle by American

forces,2but also as unintended ‘collateral damage’, as in

the case of the bombing of the Pancˇevo chemical plant

by NATO jets during the Kosovo conflict.3Next to the

degradation resulting directly from military operations,

the indirect consequences of war can be equally severe. 4

The textbook examples of such damage are poaching

and illegal logging in protected areas conducted by

desperate refugees for their survival.5There is, however,

also evidence that reckless and unrestrained exploita-

tion of natural resources is induced by the turmoil of war

and weakened governments.6

In this context, the unresolved and long forgotten

debate on the fate of international treaties during

armed conflict gains new relevance. Present interna-

tional environmental law consists to a large extent of

treaty law. Some of these could be interpreted to restrict

warfare – for instance, the 1984 Law of the Sea Con-

vention (LOSC).7More importantly, however, interna-

tional environmental law regulates the harmful effects

of peacetime economic activity. If these conventions

were suspended or abrogated at the outbreak of war

between the belligerents or even third State parties, this

* The article is based on a thesis submitted at the University of Iceland

in late 2011 under the supervision of Dr Adalheidur Johannsdottir.

1L. Themnér and P. Wallensteen, ‘Armed Conf‌lict 1946–2010’, 48:4

Journal of Peace Research (2011), 525.

2J.A. McNeely, ‘War and Biodiversity: An Assessment of Impacts’, in

J.E. Austin and C.E. Bruch (eds.), The Environmental Consequences

of War: Legal, Economic and Scientif‌ic Perspectives (Cambridge

University Press, 2000), 353, at 362.

3A. Schwabach, ‘Environmental Damage Resulting from the NATO

Military Action Against Yugoslavia’, 25:1 Columbia Journal of Envi-

ronmental Law (2000), 117, at 119. Regarding Pancˇ evo, also see the

proceedings instituted (unsuccessfully) by Yugoslavia against the

NATO States: e.g., ICJ 29 April 1999, Yugoslavia v. United States of

America (Legality of the Use of Force), [1999] ICJ General List 114.

4See J.A. McNeely, n. 2 above, at 362.

5Ibid., at 363.

6J. Brauer, War and Nature: The Environmental Consequences of

War in a Globalized World (Rowman & Littlef‌ield, 2009), at 162–163.

7United Nations Convention on the Law of the Sea (Montego Bay,

10 December 1982) (‘LOSC’).

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Review of European Community & International Environmental Law

RECIEL 21 (2) 2012. ISSN 0962 8797

© 2012 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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