Tag: ICJ

If War Were To Doom Us All Tomorrow, The ICJ Would Still Plant A Tree

Posted in International Environmental Law, International Humanitarian LawTagged , , , , , , 1 Comment

By Moises A Montiel M

Moisés Montiel is a Venezuelan lawyer advising individuals and governments in matters of International Law at Lotus Soluciones Legales. He holds an LLM from the Fletcher School of Law and Diplomacy at Tufts University and teaches IHL and Treaty Law at Universidad Panamericana and Universidad Iberoamericana in Mexico.

The ICJ is no stranger to the growing concern about the environment. In fact, the existence (albeit brief) of an Environmental Chamber credits the importance attributed by the Court to this global common good. Directly or indirectly, the bench has been faced with opportunities to deal with the subject and has done its share to advance the cause of environmental protection, even during armed conflict as exceptional situations.

Before any further comments are made, it should be recalled that article 59 of the Court’s Statute contains a prohibition to generate binding precedent. However, these are not any 15 Johns and Janes Doe issuing a sentence, the compliance pull emitted by any ruling of the ICJ (or its legitimacy, if the New Haven School is brought to bear) demands attention and even persuades into compliance.

In this intelligence, this piece aims to highlight relevant dicta of the ICJ in asserting that there exists, without need for juggling or licentious interpretation, international obligations protecting the environment (almost) completely applicable during armed conflicts. 

The ICJ has advanced the conversation to a point where it is not unreasonable to assert that environmental protections during armed conflict should not be a by-product of the respect owed to protected categories, but an end in and of itself.

The Nuclear Weapons Opinion

In parallel to the main goal of the opinion, the Court drew attention to the impact that nuclear weapons could have on the environment and how their use is brutally incompatible with the protections stemming from the principles of precaution, military necessity, and distinction not just towards people, but to the environment itself (see paras. 27-33).

The Court acknowledged that a number of States expressed their conviction that the use of nuclear weapons both in armed conflict and outside of violates existing regulations. It reasserted the existence of a general obligation (untouched in the context of IHL) of States to make sure that activities within their jurisdiction respect the environmental rights of other States and the environment itself. A conclusion later supported by the Paper Mills case ruling.

In the Nuclear Weapons Opinion, the Court took note of the objections of some States which claimed that, for instance, obligations arising out of the ENMOD Convention would become inapplicable during armed conflicts. The Court answered by rephrasing the question and assumed from the start that the obligations were binding during conflict and, instead, analyzed whether they were absolute restrictions.

It answered the new question by subordinating the absolute prohibition to the logic of military necessity and the balancing act it demands. It concluded that the environment is an element to be weighed in assessing if the principles of necessity and proportionality permit attack. In supporting this conclusion, the Court recalled principle 24 of the 1992 Rio Declaration which recalled the duty of States to comply with the seminal principles of IHL with due regard to the environment and the effect of hostilities on it. 

In its Opinion, the Court also recalled UNGA Resolution 47/37 concerning the protection of the environment during armed conflicts. This instrument reaffirms the duty to consider the impact of military operations on the environment. It could be assumed that the Court found an indication of opinio juris under customary IHL in this document.

Nuclear Weapons is the most important jurisprudential contribution towards the goal of demonstrating the existence of a solid normative regime protecting the environment during armed conflict and, also, the necessary starting point for any proposition grounded in blackletter law about responsibility for crimes against the environment during armed conflicts.

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

In the ‘pocket guide for the casual conventional delinquent’, also dubbed by the Court as the Gabcikovo-Nagymaros Project case the bench held that the ‘ecological state of necessity’ would theoretically justify the failure to comply with conventional obligations, only that it was not satisfied that such a state of necessity existed in this case. Moreover, the Court entertained the notion that environmental concerns constitute an essential interest of the State, thus opening the door for it to give way to the invocation of rebus sic stantibus (the doctrine of the fundamental change of circumstances). Both of these substantially raise the entity of the environment as an object of special protection under general international law.

The Court also found that the deviation of the waters of the Danube by Slovakia was in breach of international obligations, a conclusion which warrants no further explanation if extrapolated to the realm of IHL, especially if understood in line with protections of basic essential goods for human populations.

While it is true that this case did not directly touch upon environmental protection during armed conflict, it is no less valuable a contribution since it highlights the importance of the environment and furthers the notion that it constitutes a global common good, both protected by general international law and (consequentially) by IHL.

This ruling also serves as a reminder that the control and enjoyment of natural resources is a direct function of the right to self-determination under both the ICCPR and the ICESCR. The conclusion being that no attempt against it is legal if not warranted by strict military necessity.

Pulp Mills on the River Uruguay Case (Argentina v. Uruguay)

The fundamental holding of this case is that environmental damage is equivalent to patrimonial damage under the law of international responsibility, and in acknowledging it the Court confirms an expansion of the jus standi (judicial standing) of States to demand reparation for environmental damages. 

The takeaway for IHL, even if the Court did not point it out explicitly, is that in assessing damages derived from armed conflict, environmental damage can and should be taken into account when not strictly justified by necessity and proportionality, otherwise, the delinquent State or party will incur in responsibility and subsequent duty to repair.

This case is also relevant because it advanced and consolidated the notion that there is an international obligation to abstain from carrying out activities that may have an adverse impact on the environment. This obligation, naturally, cannot be held as extraneous to IHL because it does not forcibly, automatically, or singlehandedly hinder the legal conduct of hostilities. 

The arguments on sustainable economic development considered in this case also have major implications for environmental protection during armed conflict. The Court noted that there can be no development without environmental protection. Consequentially, it would not elicit any blushing to consider that the obligation to respect the environment/development duo would still hold during armed conflict, even if terms and conditions do apply. 

This rings even truer when the ILC Draft Articles on State Responsibility are brought in the mix, since -as codified by the articles- the existence of a state of war between States does not suspend duties owed, except when directly affected by hostilities. Since environmental protection in this context is mostly a duty of abstention, it stands to reason that unwarranted environmental damage not allowed by strict military necessity would suddenly become permissible without the need to prove that compliance with the obligation is directly affected by the state of hostilities.

Whaling in the Antarctic case (Australia v. Japan)

In this case, the Court availed itself of both the CITES and the Convention on Biological Diversity, among other treaties, in assessing the legality of Japanese whaling activities. Even if it is not directly concerned with IHL, some conclusions are worth noting.

The foremost takeaway is that both of these conventions entail duties of the State to be observed mainly within its territory. If the duty to honour obligations is not disrupted by a state of war, it seems plausible to suggest that the environmental duties incumbent upon the State in its own territory should not be suspended in the context of armed conflict not of an international character.

Most revealing in this particular case are – as they tend to be – the separate and dissenting opinions. Judge Yusuf’s dissent points toward the need to consider the shift in attitudes and societal values towards the interpretation of duties of preservation of environmental goods  (paras. 25-26). Could the same necessity be derived from the increasing societal concern about the protection of the environment? And more so in contexts of armed conflict? There seems to be nothing barring an answer in the affirmative. Also enlightening – and in abundant detail, as is his custom- is judge Cançado Trindade’s opinion, in it, he insists in the need to understand the increasing multilateralization of environmental protection regimes as a function of a desire for more robust protections for the environment (paras. 7, 12, 22-24). This would come to support the notion of the environment as a global common good.

As hinted at the beginning of this piece, the Court is no stranger to the concern for the protection of the environment (during hostilities or outside of them) and it has time after time reaffirmed its place of honour among internationally protected common goods. Therefore, to say that environmental protection becomes secondary when the clash of swords is heard is to make the effet utile (effectiveness) of environmental protection treaties the first casualty of war, and the Court’s jurisprudence certainly seems to support this conclusion.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens Blog, or any institutes the author may be affiliated with.]

The Inapplicability of the Geneva Conventions to Self Determination Movements

Posted in International Humanitarian Law, Public International LawTagged , , Leave a comment

By Shayan Ahmed Khan

(This is a modified version of a post/article that was first published on the Cambridge International Law Journal (CILJ) Blog. It is reproduced here with the permission of the CILJ Editors)

The International Court of Justice (ICJ) has recognised the right to self-determination as an obligation erga omnes and an essential principle of contemporary international law. The sanctity of this right is also preserved and explicitly recognised under Art. 1(4) of the Additional Protocol I (API) wherein the struggles of people ‘fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…’ are recognised as international armed conflicts. This is supplemented by Art. 96(3) of API whereby an authority representing a people may unilaterally declare their intention to be bound by the Geneva Conventions of 1949 (GCs) and API. Consequently, the rights and obligations thereto apply equally between the authority and the High Contracting Party.

The Need for the Applicability of the GCs to Self-Determination Movements after the API

With the API nearing universal ratifications (174 States) the right to self-determination seems firmly grounded under the IHL regime. However, this is not entirely the case as there is potential of such conflicts occurring between Non-State Actors (NSAs) and Non-State Parties of API as well as State Parties of API which have construed the aforementioned provisions narrowly. (See for example the Declaration of France and the Understanding of the Philippines vis-à-vis the instrument of ratification). Naturally, States resisting such an armed struggle may be reluctant to accord the extended protection of IHL to what they may deem ‘rebels’ or ‘terrorists’. At the same time, such an extended protection would also entail the legitimization of the struggle – something which the State in question may want to avoid.

As universally ratified instruments, this is where the GCs come into play. Although there is no explicit provision within the GCs, arguments have been advanced to extend it in a similar manner to the API by distinguished authors such as Schindler, Abi-Saab and Kussbach. These arguments hinge on either the provisions relating to accession codified in Arts. 60 GCI, 59 GCII, 139 GCIII and 155 GCIV or the application of the GCs on an ad-hoc basis as enshrined in Common Article 2(3) of the GCs.

Limits on the Construction of GC Accession Provisions and Common Article 2 

Their arguments rest on the use of the word ‘power’ instead of ‘State’ or ‘High Contracting Parties’, which in their opinion is a more expansive term. This argument is furthered owing to the exclusive usage of the term ‘power’ in the paragraph (3) when the rest of the Common Article 2 uses the term ‘High Contracting Parties’. Thus they argue that such a use was deliberate on the part of the drafters and was either intended, explicitly, to cater to self-determination movements, or can now be interpreted in such a manner. The latter is argued on the basis of subsequent developments in international law, which have been discussed at length below. However, even at the outset, this seems to be inconsistent with the intent of the drafters. For instance, in relation to Art. 2(3), when the ‘Special Committee of the Joint Committee’ adopted the text, the Rapporteur explained it to be applicable ‘to the non-Contracting adverse State’(emphasis added). Similarly, the Commentary to the accession provision is also among the same lines. It states that the ‘invitation is addressed to all States…’ (emphasis added). This is also consistent with the intent of the drafters at the time which deemed wars of liberation as non-international armed conflicts.

That being said, international law does not remain stagnant to the developments which take place after a convention has entered into force and thus the developments that have taken place after the GCs must also be taken into account. Here, UNGA Res. 3103 (XXVIII) (1973), among many others, is very important. The resolution was approved by 83 States with 13 against and 19 abstentions. It specifically extends the protection afforded by the Third and Fourth GCs to ‘fighters’ engaged in a struggle for ‘self-determination’. Although not binding, the language adopted by the resolution seems to, prima facie, go beyond a mere urge to the parties. Paragraph 6 of the resolution deems it a violation of international law if ‘combatant status’ is not afforded to such fighters. Yet, by only emphasising the applicability of the Third and Fourth Convention as opposed to the GCs as a whole, gives rise to the inference that the resolution did not envisage an application of the GCs in their entirety. Consequently, without prejudice to the linguistics that may have been adopted, in totality, it would appear that the resolution may be construed as nothing more than a mere urge to the parties to apply the GCs. In any event, as noted by the ICJ in Nicaragua, UNGA resolutions only serve as ‘evidence’ of the existence of customary law, the corollary being that, in and of themselves, these resolutions would not be sufficient to alter the provisions in question. Indeed, as Sassoli puts it ‘there are some 500 articles in those treaties!’. Thus in the absence of an explicit provision, it would be very difficult to reconcile these resolutions with either the accession provisions or through the application of GCs on ad-hoc basis.

The Role of Treaty Interpretation in Light of Subsequent Practice

Even for the purposes of treaty interpretation, the thinking of the drafters is not a decisive factor. As the ICJ noted in the Namibian Advisory Opinion, treaty interpretation cannot remain unaffected by subsequent developments in law (See also Art. 31(3)(b) of the Vienna Convention on the Law of Treaties, 1969). Moreover, the Court also noted that there is a duty to harmonise international law with that which is prevailing at present. However, all such ‘subsequent practice’ in the application of the GCs must be ‘concordant and consistent’, such that it is capable of altering the interpretation of the aforementioned provisions.

In 1960, the Gouvernement Provisoire de la République Algérienne (Provisional Government of the Republic of Algeria), deposited an Instrument of Accession. The Swiss Government (depository of the GCs and a party) and the French government entered a reservation to their accession prior to Algeria becoming an Independent State. Similarly, on 21st June 1989, the depository received a letter from the Permanent Observer of Palestine to the United Nations to accede to the GCs and its Additional Protocols. Almost three months later, this was rejected owing to the uncertainty within the international community as to the exact status of Palestine as a State. Thus, it appears that the very few developments that do exist, seem to favour an interpretation which accords with the ‘object and purpose’ of the convention i.e.  exclusively applicable between States except Common Article 3 of GCs.

Conclusion 

These elements, coupled with the need for an explicit provision to be inserted within API, illustrate that the provisions relating to accession and Common Article 2(3) of the GCs were not tailored to fit self-determination conflicts. Additionally, there is almost a complete absence of either ‘subsequent practice’ of the GCs being applied in such a way. In such circumstances, recourse may be sought through declarations under Art. 7(4)(b) of the Convention on Certain Conventional Weapons (CCW) which allows for the applicability of the GCs alongside the CCW and its Protocols even if the authority is not a party to API. This route should also be considered by NSAs, particularly when the State in question is not a party to API but is a party to the CCW.That said, the parties are also free to deposit deeds of commitment to abide by the GCs such as the South West Africa People’s Organisation (1981) or Palestine Liberation Organisation’s undertaking in 1982. Alternatively, through the initiative of an NGO named the Geneva Call, NSAs have agreed to implement IHL with regard to the use of landmines. This is also not an uncommon occurrence, with 50 armed groups already having deposited such deeds. Even though these deeds of commitment can only serve as an urge to the State Party to apply the GCs and API inter se but they may change the perception of the international community towards NSAs, changing the language ‘rebels’ or ‘terrorists’ to an authority pursuing a legitimate right.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]

The Mirage of Nuclear Non Proliferation: 75 years after Hiroshima-Nagasaki

Posted in Public International LawTagged , , , 1 Comment

By Omer Akif.

5 August 2020

Some Reflections.

6 August 2020, marks 75 years since the atomic bombings of Hiroshima-Nagasaki wreaked absolute havoc and devastation on hundreds of thousands of people, horrific remnants of which persist to this day. A more frightening thought is the fact that there are now at least 9 sovereign states possessing nuclear weapons, compared to the only one in 1945. Nuclear stockpiles at the time of Hiroshima-Nagasaki amounted to a grand total of 2. The present-day estimates place this figure in excess of 14,000. Global actors including states, civil-society, humanitarian organizations and activist-groups have long pushed for a complete ban and de-commissioning of existing and future nuclear-weapons. These efforts have brought some returns, in the shape of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the Comprehensive Nuclear-Test-Ban Treaty and more recently, the Treaty on the Prohibition of Nuclear Weapons. However, these instruments largely lack authoritative significance and impact due to limited or non-existent participation from nuclear-states and a lack of general cohesion among the international community.

The matter is further complicated by the International Court of Justice’s Nuclear advisory opinion, where the world court stated that it could not ascertain the legality of nuclear weapons. The ICJ did, however, opine that any use of nuclear weapons has to comply with rules and principles of international humanitarian law including the principle of distinction, proportionality and the prohibition of  unnecessary suffering. Similarly, in principle, the NPT’s entry into force does oblige states to move towards a world without nuclear weapons. This is coupled with the fact that 122 states have voted in favor of banning nuclear weapons under the Nuclear-ban treaty.

Many states have justified their pursuit of building nuclear weapons under the pretense of nuclear deterrence ensured through mutually assured destruction. Security concerns and national defense are often invoked as primary reasons for thrusting funds from the national wealth into nuclear arsenals. Naturally, there are serious merits to these claims and it would not be wise to disregard them from the outset. The Justifications for pursuing nuclear weapons encompass practical considerations such as legitimate security threats and uncertain politics that may be warranted on veritable grounds. Despite the reasons for their creation, the possession of nuclear weapons is hardly any cause for celebration. A dooms-day device built in the name of protection may be rationalized as a necessity by states but they certainly aren’t tools worth glorifying. There’s nothing noble about building, possessing or God-forbade deploying nuclear weapons. The endless potential for suffering and total destruction caused by nuclear weapons should haunt all Governments and policy makers. Such ruthless means of annihilation should never become symbols of nationalism, no matter what military advantages they may carry. This realization in the national ethos of a country is important so that nuclear weapons do not ever represent the pride of its people, notwithstanding the initial grounds for building them. The President of the International Committee of the Red Cross, emphasizes that “Weapons with catastrophic humanitarian consequences cannot credibly be viewed as instruments of security.”

It should be evident that growing number of nuclear weapons has cultivated an environment of perpetual fear that continuously threatens the existence of the human race. No country, society, or individual should be subjected to that sort of fear ever.

It is important to note that collective efforts are needed by citizens, civil society members, policy-makers, governments and military officials across the globe to enable an environment that minimizes if not eliminates the risk of future nuclear weapon use. The urgency in this matter, simply cannot be overstated.  The indiscriminate and catastrophic consequences of nuclear weapons, as documented, also begs the question whether they could ever be employed with the tenets of international humanitarian law. For humanity’s sake, current and future generations included, it would be better if this questions remains an academic concern in textbooks and not a tactical query to be made during an armed conflict. Nuclear non-proliferation and complete disarmament are the only sensible paths ahead, if we want to ensure a future, let alone a good future.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]