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

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.]

Jus Cogens Podcast Featured on Courting the Law

13 July 2020

Courting the Law – Pakistan’s leading legal news and analysis portal, did a feature on JC Law Podcast’s journey and development since the first episode with Niels Blokker came out in 2018. Check out the entire piece in the link below.

https://courtingthelaw.com/2020/07/13/more/jus-cogens-podcast-on-international-law/