mle-023 international environmental law and policy

MAJOR INTERNATIONAL ENVIRONMENTALLAWS-IUNIT 1Right to Environment as Human Right 5

UNIT 2International Humanitarian Law and EnvironmentProtection 21

UNIT 3Environment and Conflict Management 39

MLE-023International

Environmental Lawand Policy

Block

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Indira GandhiNational Open UniversitySchool of Law

Expert Committee

Block Preparation Team

Material ProductionMr. Yashpal Cover Design Word ProcessingSection Officer (Publication) Mr. Tamal Basu Mr. Yogesh DawarIGNOU, New Delhi

November, 2010

© Indira Gandhi Naitonal Open University, CEL, WWF-India, 2010

ISBN-978-81-266-4925-9

All rights reserved. No part of this work may be reproduced in any form, by mimeograph or anyother means, without permission in writing from the copyright holder.

Further information on the Indira Gandhi National Open University courses may be obtainedfrom the University’s office at Maidan Garhi, New Delhi-110 068 or the official website ofIGNOU at www.ignou.ac.in

Printed and published on behalf of Indira Gandhi National Open University and WWWF, NewDelhi by Director, SOL, IGNOU, New Delhi-110068.

Laser Composed by: Tessa Media & Computers, C-206, A.F.E-II, Jamia Nagar, Okhla, New Delhi

Programme Coordinator : Ms. Mansi Sharma, School of Law, IGNOUMs. Moulika Arabhi, Centre for Environmental Law, WWF

Unit Writer : Mr. Dabiru Sridhar Patnaik, Assistant ProfessorIndian Society of International Law

Content Editor : Ms. Mansi Sharma and Ms. Moulika Arabhi, CEL,

WWF-India

Language Editor : Ms. Mansi Sharma

Format Editor : Ms. Mansi Sharma

Prof. N.R. Madhava MenonChairman, Former DirectorNational Judicial AcademyBhopal Member,Commission on Centre-States Relations, New Delhi

Prof. B.B. Pande FormerProfessor of CriminologyDelhi University

Justice Madan B. Lokur ChiefJustice, Guwahati High Court,Guwahati

Dr. Luther RangrejiSenior Legal OfficerLegal & Treaties DivisionMinistry of External Affairs

Prof. Venkata RaoVice-ChancellorNational Law School Bangalore,Karnataka

Dr. K. Vijaya LakshmiAssistant Vice President(Environment), DevelopmentAlternatives

Dr. R.D. JakatiDirectorIndira Gandhi National Forest Academy

Dr. Vinod B. MathurDean, Wildlife Institute of India

Mr. Samir SinhaHead, Traffic – India

Mr. Raj PanjwaniSenior Advocate, Supreme Court

WWF-IGNOU EC Members:

Mr. VN Rajasekharan PillaiVice-Chancellor, IGNOU

Mr. Ravi SinghSG & CEO, WWF-India

Prof. Srikrishna Deva RaoFormer Director (2nd May, 2007 to1st May 2010), School of Law, IGNOU

Ms. Mansi SharmaAsst. Prof., School of Law, IGNOU

Ms. Moulika ArabhiProgramme Coordinator, Centre forEnvironmental Law, WWF-India

MLE-023 INTERNATIONALENVIRONMENTAL LAW ANDPOLICY

“For strengthening the professional and educational support base forenvironmental law and policy”.

One of the principle features of School of Law, IGNOU and Centre forEnvironmental Law, WWF-India’s educational activities is the Post GraduateDiploma Programme in Environmental Law. Jointly being launched in 2010, theDiploma is the first such comprehensive programme for enviro-legal educationcatering to India and International students and professionals. Special emphasisis on conservation and environmental issues, which lie at the core of allenvironmental law, the study of which enables participants to determine theeffectiveness or ineffectiveness of the respective law.

MLE-023 – International Environmental Law and Policy

Industrialisation, urbanisation, population explosion, poverty, over exploitationof resources, depletion of traditional resources of energy and raw materials andso on are some of the factors that have contributed to environmental degradation.In response to the global environmental concerns, various environmental effortshave taken place, most of which have been convened by the United Nations.Although environmental protection is not specifically mentioned in the Charterof the United Nations, the organisation has perforce become the leading catalystfor and coordinator of activities in this field. One can trace the history andevolution of the global environmental conferences from 1972 onwards as thefirst significant effort in this front was taken in this particular year when the firstglobal environmental summit, ‘the United Nations Conference on HumanEnvironment was convened. The summit marked the beginning of an era wherethe fledgling environmental movement was firmly established by placing it inan economic and social context.

The World Commission on Environment and Development, also known as theBrundtland Commission was convened by the United Nations in 1983. TheCommission was created to address growing concern “about the acceleratingdeterioration of the human environment and natural resources and theconsequences of that deterioration for economic and social development.”

MLE-023 explains the journey of emergence of International Law, the Unit coversin quite a detail about all the ‘Major International Environmental Laws’…weare sure you can’t ask for more! We would be taking you through ‘BiodiversityRelated Conventions’ and finally toward ‘Regulatory Mechanisms’.

We wish you get the best from MLE-023 and also urge you to join the communitythinking and acting for environment well being.

Best Regards and Happy Reading!SOL-CEL Team

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Major InternationalEnvironmental Laws-I BLOCK 1 MAJOR INTERNATIONAL

ENVIRONMENTAL LAWS-I

The relationship that exists between environmental degradation and the violationof basic human rights, have been the focus of recent debates in national andinternational human rights and environmental fora. Perspectives of human rightsto cases of environmental disruption, like the Bhopal and Chernobyl disasters,has become more acknowledged over the years depicting the fact that humanrights and the environment are so inherently interlinked that a clean and healthyenvironment could be termed a basic human right. Human rights are applicableduring all situations i.e during peace and also in the time of war. They are basicnorms to be enforced by the State to safeguard and protect the dignity ofindividuals at all times. International humanitarian law is applicable duringinternational armed conflicts or we may say during wartime with an objective tominimise sufferings of individuals and limiting the methods and means of warfare.

Following Units will be dealt in Block 1

Unit 1 – Right to Environment as Human Right

Common concerns relating to conservation of natural resources and protectinghuman dignity are interalia pollution of rivers, construction of dams and barrageswithout proper environment impact assessment, lack of access to drinking waterfree from toxin or other contaminants and many more…this unit in detail explainsrights of humans to safe environment.

Unit 2 – International Humanitarian Law and Environment Protection

When a conflict occurs the immediate responsibility would be to save lives andminimise suffering, in a way the focus is on human centric needs. Although onemight argue that priority should be given to protection of individuals, butenvironmental concerns cannot be ignored or overlooked during conflictsituations, learn more about how environmental concerns are given importancein this unit.

Unit 3 – Environment and Conflict Management

The purpose of this unit is to introduce the nature and concept of environmentalconflicts with reference to important environmental conflicts of transboundaryor international character.

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Right to Environment asHuman RightUNIT 1 RIGHT TO ENVIRONMENT AS

HUMAN RIGHT

Structure

1.1 Introduction

1.2 Objectives

1.3 Concept of Human Rights: An Overview

1.4 Environmental Law and Human Rights: Linkages

1.5 Environmental Rights in International Law

1.6 Treaty Provisions

1.7 Right to Environment as a Human Right in India

1.8 Summary

1.9 Terminal Questions

1.10 Answers and Hints

1.11 References and Suggested Readings

1.1 INTRODUCTION

The relationship that exists between environmental degradation and the violationof basic human rights, have been the focus of recent debates in national andinternational human rights and environmental fora. Perspectives of human rightsto cases of environmental disruption, like the Bhopal and Chernobyl disasters,has become more acknowledged over the years depicting the fact that humanrights and the environment are so inherently interlinked that a clean and healthyenvironment could be termed a basic human right. Let us not forget that degradedenvironmental conditions contribute to a large extent, to the spread ofcommunicable diseases. In developing countries, most of the population lackbasic health care services, almost a third of these people have no access to safewater supply. The exhaustion of natural resources leads to unemployment andforced migration and this would in turn affect the enjoyment and exercise ofbasic human rights. Other common concerns relating to conservation of naturalresources and protecting human dignity are interalia pollution of rivers,construction of dams and barrages without proper environment impact assessment,lack of access to drinking water free from toxin or other contaminants, increaseduse of pesticides, degradation of marine and coastal resources, dumping of landbased solid waste into the sea, inland mining, poor land use practices, over fishing,destructive fishing techniques, shrimp cultivation, loss of coastal habitats anddeforestation, land based pollution etc have their immediate affects on livelihoodand human security thus affecting the basic human rights of peoples. As it isclear to us, poverty situations and human rights abuses are further worsened byenvironmental degradation. As a result of such environmental destructive actionsthere is a realisation in the last few decades the link between human rights andenvironment leading to an emergence of manifestation that a clean and healthyenvironment is essential to the realisation of fundamental human rights such asthe right to life, personal integrity, family life, health and development.

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Major InternationalEnvironmental Laws-I

Many international treaties and local laws and regulations world over onenvironmental protection have been introduced in the second half of the 20thcentury. The 1972 Stockholm Declaration proclaimed that man’s natural andman made environment are essential to his well-being and to the enjoyment ofbasic human rights-even the right to life itself. In 1986, the United Nations GeneralAssembly recognised the relationship between the quality of human environmentand the enjoyment of basic human rights [UNGA resolution 2398 (XXII) 1986].The 1992 Rio Declaration emphasised sustainable development andenvironmental protection. Moreover, Agenda 21 called for the fulfillment ofbasic needs, improved living standards for all, better protected and managedeco-systems and a safer, more prosperous future.

The right to a safe environment can be sculpted to fit the general idea of humanrights by conceiving it as primarily imposing responsibilities on governmentsand international organisations. It calls on them to regulate the activities of bothgovernmental and nongovernmental agencies to ensure that environmental safetyis maintained. The basis for justification of this right is that environmentalproblems pose serious threats to fundamental human interests, values, or normsin the society. Therefore governments must appropriately be endowed with theresponsibility of protecting people against these threats. Information access askey to promote good governance and environmental rights has been the keyfeature in most of the multilateral environmental agreements.

1.2 OBJECTIVES

After reading this unit, you should be able to:

• explain the concept of human rights in general;

• explore the relationship between human rights and environment;

• discuss the right to environment as human right in international law; and

• discuss Right to Environment as Human Right with reference to IndianJurisprudence.

1.3 CONCEPT OF HUMAN RIGHTS: ANOVERVIEW

Human rights are international norms that help to protect all people everywherefrom severe political, legal, and social abuses dealing mainly with how peopleshould be treated by their governments and institutions. Human rights protectpeople against familiar abuses of people’s dignity and fundamental interests.These rights exist in morality and in law at the national and international levels.It is the responsibility of the state or governments to ensure enforcement of humanrights and to call for compliance of other states actors and individuals with thesame. Some examples: right to a fair trial when charged with a crime, right toengage in political activity, right to freedom of religion etc.

The Universal Declaration of Human Rights (1948) sets out a list of over twodozen specific human rights that countries should respect and protect. After thecreation of the Universal Declaration, efforts were made to create treaties thatwould make the rights in the Universal Declaration into norms of internationallaw. And it was decided to create two separate treaties. Drafts of the two

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Right to Environment asHuman Right

International Covenants were submitted to the General Assembly for approvalin 1953, but approval was much delayed. Almost twenty years after the UniversalDeclaration, the United Nations General Assembly finally approved theInternational Covenant on Civil and Political Rights and the InternationalCovenant on Economic, Social, and Cultural Rights both in 1966. The Civil andPolitical Covenant contains most of the civil and political rights found in theUniversal Declaration. The Social Covenant contains the economic and socialrights found in the second half of the Universal Declaration. These treatiesembodying Universal Declaration rights received enough State parties to becomeoperative in 1976 and have now become the most important UN human rightstreaties.

These specific rights of the Universal Declaration of Human Rights can be dividedinto six or more families: security rights that protect people against crimes suchas murder, massacre, torture, and rape; due process rights that protect againstabuses of the legal system such as imprisonment without trial, secret trials, andexcessive punishments; liberty rights that protect freedoms in areas such as belief,expression, association, assembly, and movement; political rights that protectthe liberty to participate in politics through actions such as communicating,assembling, protesting, voting, and serving in public office; equality rights thatguarantee equal citizenship, equality before the law, and non discrimination;and social (or “welfare”) rights that require provision of education to all childrenand protections against severe poverty and starvation. Another family that mightbe included is group rights. The Universal Declaration does not include grouprights, but subsequent treaties do. Group rights include protections of ethnicgroups against genocide and the ownership by countries of their national territoriesand resources. The other important development in the evolution of group rightsis environmental rights the justification for this right must show thatenvironmental problems pose serious threats to fundamental human interests,values, or norms; that governments may protect.

Self Assessment Question

1) What is Universal Declaration of Human Rights?

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1.4 ENVIRONMENTAL LAW AND HUMANRIGHTS: LINKAGES

It is pertinent to learn about the relationship between human rights law andenvironmental law while discussing about the two fields of law. Both the fieldshave some common objectives in terms of social, cultural ethos and values thathave enabled linkages between the two fields. Interestingly human rights lawand environmental law’s common values are rooted within the ‘collectiveconsciousness’ of the society that has opened up new vistas for renewed

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enviornmental awareness. The other notable development is that both the fieldsof law have become internationalised and institutionalised within the system ofUnited Nations and the civil society as well. The international community hasassumed the commitment to observe the realisation of human rights and respectfor the environment. On the other hand, the phenomena brought on byenvironmental degradation trascends national and political boundaries and is ofcritical importance to the preservation of world peace and security. In view ofthe foregoing, it can be stated that the law of human rights and environmentallaw have universalised their object of protection making a transition from humancentric nature of protection that further resulted in a wider concept of protection,namely, ‘Human Security’. Linkages between human rights and protection ofenvironment had been long recognised since Stockholm and Rio Declarationsleading to emergence of this link in many international and regional treaties.Before we discuss the synergy or emergence of human rights provision inenvironment treaties and vice versa, it is relevant to illustrate the interrelationshipbetween environment quality and human rights basing on issues relating to scopeof right to water as human right; indigenous peoples right to conservation andprotection of environment.

Right to Water as Human Right

Water, a limited natural resource and a public good fundamental for life andhealth, is required for a range of different purposes, besides personal and domesticuses, to realise many of the human rights enshrined in the International Covenanton Economic, Social and Cultural Rights (ICESCR). Water is essential forsecuring livelihoods (right to gain a living by work) and to produce food (rightto adequate food) and ensure environmental hygiene (right to health) enjoyingcertain cultural practices (right to take part in cultural life). Therefore, humanright to water is indispensable for leading a life in human dignity. It is a prerequisitefor the realisation of other human rights. Over a billion persons lack access to abasic water supply, while several do not have access to adequate sanitation, whichis the primary cause of water contamination and diseases linked to water. Thecontinuing contamination, depletion and unequal distribution of water isexacerbating existing poverty. Environmental hygiene, as an aspect of the rightto health under Article 12(2)(b) of the ICESCR, encompasses taking steps on anon-discriminatory basis to prevent threats to health from unsafe and toxic waterconditions. The right to water, like any human right, imposes three types ofobligations on States parties: obligations to respect, obligations to protect andobligations to fulfill. It should also be seen in conjunction with other rightsenshrined in the International Bill of Human Rights, foremost amongst them theright to life and human dignity.

The right to water has been recognised in a wide range of international documents,including treaties, declarations and other standards. For instance, Article 14(2)of the Convention on the Elimination of All Forms of Discrimination AgainstWomen (1979) stipulates that States parties shall ensure to women the right to“enjoy adequate living conditions, particularly in relation to … water supply”.Article 24(2) of the Convention on the Rights of the Child (1989) requires Statesparties to combat disease and malnutrition “through the provision of adequatenutritious foods and clean drinking-water”. Around the world there is a need toprovide water security, which means ensuring that freshwater, coastal and relatedecosystems are protected and improved; that sustainable development and politicalstability are promoted, that every person has access to enough safe water at an

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affordable cost to lead a healthy and productive life and that the vulnerable areprotected from the risks of water-related hazards.

Therefore, governments should ensure that natural water resources are protectedfrom contamination by harmful substances and pathogenic microbes. Likewise,States parties should monitor and combat situations where aquatic eco-systemsserve as a habitat for vectors of diseases and pose a risk to human livingenvironments.

Indigenous Peoples’ Right to Conservation and Protection of Environment

As we all know the link between global environmental change and the rights ofindigenous populations’ results from the close relationship between indigenouspeoples’ cultural and economic situations and their environmental settings. TheUniversal Declaration of Human Rights (1948) and International Covenant onCivil and Political Rights (1966) have specific significance for indigenouspeoples. The Universal Declaration provides a common standard for the humanrights of all peoples and all nations, and proclaims the importance of traditional,political, and civil rights, as well as basic economic, social and cultural rights.The Covenant spells out civil and political rights and guiding principles basedon the Universal Declaration.

The 1957 International Labour Organisation (ILO) Convention No. 107,Protection and Integration of Indigenous and Other Tribal and Semi-TribalPopulations in Independent Countries, addresses the right of indigenous peoplesto pursue material well-being and spiritual development, and was a firstinternational instrument in specific support of indigenous peoples. Largelybecause of its view that indigenous peoples should be integrated into the largersociety, a view that subsequently came to be seen by many as inappropriate,Convention No. 107 was followed in 1989 by ILO Convention 169, ConventionConcerning Indigenous and Tribal Peoples in Independent Countries. ConventionNo. 169 presents the fundamental concept that the way of life of indigenous andtribal peoples should and will survive, as well as the view that indigenous andtribal peoples and their traditional organisations should be closely involved inthe planning and implementation of development projects that affect them. Asthe most comprehensive and most current international legal instrument to addressissues vital to indigenous and tribal peoples, Convention No. 169 includes articlesthat deal with consultation and participation, social security and health, humandevelopment, and the environment. To date, Convention No. 169 has been ratifiedby only a few countries, and so far by none in the Asian and Pacific Region.

This sensitive relationship was well recognised in Agenda 21, which specifiesthat “in view of the interrelationship between the natural environment and itssustainable development and the cultural, social, economic, and physical well-being of indigenous people, national and international efforts to implementenvironmentally sound and sustainable development should recognise,accommodate, promote and strengthen the role of indigenous people and theircommunities.” The 1992 Convention on Biodiversity calls on contracting partiesto respect traditional indigenous knowledge with regard to the preservation ofbiodiversity and its sustainable use. The Vienna Declaration and Programme ofAction emerging from the 1993 World Conference on Human Rights recognisesthe dignity and unique cultural contributions of indigenous peoples, and stronglyreaffirms the commitment of the international community to the economic, social,

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and cultural well-being of indigenous peoples and their enjoyment of the fruitsof sustainable development.

The emerging concern for indigenous peoples prompted the United Nations todeclare 1993 as the International Year of the World’s Indigenous Peoples and thedecade from December 1994 as the Indigenous Peoples Decade. On September13, 2007, the General Assembly of the United Nations adopted the Declarationof the Rights of Indigenous People (here in after ‘Declaration’). The GeneralAssembly refers to the Charter of the United Nations and the UniversalDeclaration of Human Rights as the bases of the right of indigenous people tofull enjoyment of human rights and fundamental freedoms. The General Assemblyrecognises that indigenous people contribute to the diversity and richness ofcivilisations and cultures, which constitute the common heritage of mankind.

The Declaration addresses both individual and collective rights, cultural rightsand identity, right to education, employment, health, language etc.144 Statesvoted in favour of the Declaration. Some of the countries which voted in favourof the Declaration were India, Indonesia, Japan, Malaysia, Netherlands,Switzerland etc. Those who voted against were Australia, Canada, New Zealandand the Russian Federation.

The Declaration states that indigenous people have the right to maintain andstrengthen their distinct political, legal, economic, social and cultural institutionsand to participate in the political, economic, social and cultural life of the State.Also the Declaration sets forth responsibilities for States in terms of takingeffective and appropriate measures to ensure continuing improvement of theireconomic and social conditions, with special emphasis on vulnerable groupslike women, children, elders and persons with disabilities. States shall also givelegal recognition and protection to lands, territories and resources traditionallyowned or used otherwise by indigenous people.

1.5 ENVIRONMENTAL RIGHTS ININTERNATIONAL LAW

Principle 1 of the Stockholm Declaration established a foundation for linkinghuman rights and environmental protection, declaring that man has a fundamentalright to freedom, equality and adequate conditions of life, in an environment ofa quality that permits a life of dignity and well-being. It also announced theresponsibility of each person to protect and improve the environment for presentand future generations. Resolution 45/94 the UN General Assembly stated thatall individuals are entitled to live in an environment adequate for their healthand well-being and called for enhanced efforts towards ensuring a better andhealthier environment. The 1992 Conference of Rio de Janeiro on Environmentand Development formulated the link between human rights and environmentalprotection largely in procedural terms. Principle 10 of the Rio Declaration onEnvironment and Development proclaims as follows:

Environmental issues are best handled with the participation of allconcerned citizens, at the relevant level. At the national level, eachindividual shall have appropriate access to information concerning theenvironment that is held by public authorities, including information onhazardous materials and activities in their communities, and theopportunity to participate in decision-making processes. States shall

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facilitate and encourage public awareness and participation by makinginformation widely available. Effective access to judicial andadministrative proceedings, including redress and remedy, shall beprovided.

Rights to information, participation and remedies in respect to environmentalconditions thus formed the focus of the Rio Declaration. In addition to Principle10, the Declaration includes provisions on the participation of differentcomponents of the population: women (Principle 20), youth (Principle 21), andindigenous peoples and local communities (Principle 22). Public participationalso is emphasised in Agenda 21. The Preamble to Chapter 23 states:

One of the fundamental prerequisites for the achievement of sustainabledevelopment is broad public participation in decision-making.Furthermore, in the more specific context of environment and development,the need for new forms of participation has emerged. This includes theneed of individuals, groups, and organisations to participate inenvironmental impact assessment procedures and to know about andparticipate in decisions, particularly those that potentially affect thecommunities in which they live and work. Individuals, groups andorganisations should have access to information relevant to environmentand development held by national authorities, including information onproducts and activities that have or are likely to have a significant impacton the environment, and information on environmental protectionmeasures.

Chapter 23 proclaims that individuals, groups and organisations should haveaccess to information relevant to the environment and development, held bynational authorities, including information on products and activities that haveor are likely to have a significant impact on the environment, and information onenvironmental protection matters. Agenda 21 also calls on governments andlegislators to establish judicial and administrative procedures for legal redressand remedy for actions affecting the environment that may be unlawful or infringeon rights under the law, and to provide access to individuals, groups andorganisations with a recognised legal interest. Section III of Chapter 23 identifiesmajor groups whose participation is needed: women, youth, indigenous and localpopulations, non-governmental organisations, local authorities, workers, businessand industry, scientists, and farmers. Agenda 21 also calls for public participationin environmental impact assessment procedures and in decisions, particularlythose that potentially affect the communities in which individuals and identifiedgroups live and work. It also encourages governments to create policies thatfacilitate a direct exchange of information between the government and the publicin environmental issues, suggesting the EIA process as a potential mechanismfor participation.


2) What does Principle 10 of the Rio Declaration on Environment andDevelopment proclaims?

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Ever since preparations started for the Rio Conference, global and regional treatiesadopted in the fields of human rights and environmental protection have includedprovisions specific to the rights contained in Principle 10. Generally, global andregional environmental treaties since 1991 contain at least some reference topublic information, access or remedies.

The following sections refer to the relevant human rights provisions in multilateralenvironmental treaties adopted since the Rio Conference began in 1991.

1.6 TREATY PROVISIONS

Global Environmental Treaties

1) An obligation to inform is foreseen by Annex II to the Protocol onEnvironmental Protection on the Conservation of Antarctic Fauna and Flora(Madrid, 1991). According to Article 5, the Parties shall prepare and makeavailable information setting forth and providing lists of Specially ProtectedSpecies and relevant protected Areas to all those persons present or intendingto enter the Antarctic Treaty area with a view to ensuring that such personsunderstand and observe the provisions of the Annex. A parallel provision isinserted in Annex V of the Protocol, on Area Protection and Management,according to which, each Party shall make available information settingforth, inter alia, the location of protected areas and of historic monumentsand sites, as well as the management plans, with a view to ensuring that allpersons visiting or proposing to visit Antarctica understand and observe theprovisions of the Annex.


3) What does Article 5 state?

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2) The Framework Convention on Climate Change (June 4, 1992), Article4(1)(i) obliges Parties to promote public awareness and to “encourage thewidest participation in this process including that of non-governmentalorganisations.” Article 6, provides that its parties “shall promote and facilitateat the national and, as appropriate, sub-regional and regional levels, and inaccordance with national laws and regulations, and within their respectivecapacities” public access to information and public participation.

3) Protocol to amend the International Convention on the Establishment of anInternational Fund for Compensation for Oil Pollution Damage and theProtocol to amend the International Convention on Civil Liability for OilPollution Damage (London, November 27, 1992) extend the provisions ofthe 1969 conventions that aim to provide remedies for those who sufferharm from oil pollution damage.

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4) The Convention on Biological Diversity refers in its preamble to the generallack of information and knowledge regarding biological diversity and affirmsthe need for the full participation of women at all levels of policy-makingand implementation. Article 13 calls for education to promote and encourageunderstanding of the importance of conservation of biological diversity.Article 14 provides that each contracting party, as far as possible and asappropriate, shall introduce appropriate environmental impact assessmentprocedures and where appropriate allow for public participation in suchprocedures. The Convention allows for public participation in environmentalimpact assessment procedures in Article 14(1)(a) and calls for theparticipation of indigenous and local peoples in decisions about sharingtheir knowledge, innovations and practices concerning conservation andsustainable use of biological diversity. (Art. 8(j)).

5) International Convention to Combat Desertification in those CountriesExperiencing Serious Drought and/or Desertification, particularly in Africa(Paris, June 17, 1994) contains numerous provisions on environmental rights,including in the Preamble, Article 10(2)(e), 13(1)(b), 14(2)(19) and 25. TheConvention goes furthest among recent treaties in calling for publicparticipation, embedding the issue throughout the agreement. Article 3(a)and (c) begin by recognising that there is a need to associate civil societywith the actions of the State. The treaty calls for an integrated commitmentof all actors: national governments, scientific institutions, local communitiesand authorities, and non-governmental organisations, as well as internationalpartners, both bilateral and multilateral.

6) The IAEA Joint Convention on the Safety of Spent Fuel Management andon the Safety of Radioactive Waste Management is based to a large extenton the principles contained in the IAEA document “The Principles ofRadioactive Waste Management.” The Preamble of the treaty recognisesthe importance of informing the public on issues regarding the safety ofspent fuel and radioactive waste management. This view is reinforced inArticles 6 and 13, on the citing of proposed facilities; they require eachState Party to take the appropriate steps to ensure that procedures areestablished and implemented to make information available to members ofthe public on the safety of any proposed spent fuel management facility orradioactive waste management facility.

7) The International Convention on Liability and Compensation for Damagein Connection with the Carriage of Hazardous and Noxious Substances bySea (London, May 3, 1996) is similar to the Convention on Liability for OilPollution Damage. It ensures a remedy for those injured by damage, imposesa mandatory insurance requirement, and establishes limits on liability and acompensation fund.

8) Article 32 of the UN Convention on the Law of the Non-navigational Usesof International Watercourses (New York, May 21, 1997) concerns freedomfrom discrimination in respect to remedies. It says that watercourse Statesshall not discriminate on the basis of nationality or residence or place whenthe injury occurred, in granting to persons who suffered or are under a seriousthreat of suffering significant transboundary harm, in accordance with theirlegal system, access to judicial or other procedures, or a right to claim

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compensation or other relief in respect of significant harm caused by suchactivities carried on in their territory.

9) On September 12, 1997, a Joint Protocol to amend the Vienna Conventionon Civil Liability for Nuclear Damage (21 May 1963) and the ParisConvention on Third Party Liability in the Field of Nuclear Energy (29July 1960) as amended, updated the provisions imposing civil liability onowners or operators of nuclear facilities and providing remedies for thoseinjured as a result of nuclear incidents.

10) Rotterdam Convention on the Prior Informed Consent Procedure for CertainHazardous Chemicals and Pesticides in International Trade (September10, 1998). Article 15(2) requires each state party to ensure, “to the extentpracticable” that the public has “appropriate” access to information onchemical handling and accident management and on alternatives that aresafer for human health or the environment than the chemicals listed in AnnexIII to the Convention.

11) Cartagena Protocol on Biosafety to the Convention on Biological Diversity(Montreal, January 29, 2000), Article 23 concerns public awareness andparticipation, requiring the Parties to facilitate awareness, education andparticipation concerning the safe transfer, handling and use of living modifiedorganisms in relation to the conservation and sustainable use of biologicaldiversity, taking into account risks to human health. Access to informationon imported LMOs should be insured and the public consulted in thedecision-making process regarding such organisms, with the results of suchdecisions made available to the public. Further, each Party shall endeavourto inform its public about the means of public access to the BiosafetyClearing-House created by the Convention.

12) Article 10(1) of the Convention on Persistent Organic Pollutants(Stockholm, May 22, 2001) aims at “protecting human health and theenvironment from persistent organic pollutants.” The treaty provides thateach Party shall, within its capabilities, promote and facilitate provision tothe public of all available information on persistent organic pollutants andensure that the public has access to public information and that theinformation is kept up-to-date (Art.10 (1)(b) and (2)). Educational and publicawareness programmes are to be developed especially for women, childrenand the least educated. Parties are to make accessible to the public on atimely and regular basis the results of their research, development andmonitoring activities pertaining to persistent organic pollutants. (Art. 11).Parties that exchange information pursuant to the Convention shall protectany confidential information, but information on health and safety of humansand the environment shall not be regarded as confidential (Art.9(5)).

Global Human Rights Treaties

1) The Convention on the Rights of the Child (New York, November 20, 1989)refers to aspects of environmental protection in respect to the child’s rightto health. Article 24 provides that States Parties shall take appropriatemeasures to combat disease and malnutrition “through the provision ofadequate nutritious foods and clean drinking water, taking into considerationthe dangers and risks of environmental pollution.” (Art. 24(2)(c). Informationand education is to be provided to all segments of society on hygiene andenvironmental sanitation. (Art. 24(2)(e).

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2) ILO Convention No. 169 concerning Indigenous and Tribal Peoples inIndependent Countries (Geneva, June 27, 1989) contains numerousreferences to the lands, resources, and environment of indigenous peoples.Article 2 provides that actions respecting indigenous peoples shall bedeveloped with the participation of the peoples concerned. Special measuresare to be adopted for safeguarding the environment of such peoples consistentwith their freely-expressed wishes (Art. 4). States parties must consultindigenous peoples (Art. 6) and provide for their participation in formulatingnational and regional development plans that may affect them (Art. 7).Environmental impact assessment must be done of planned developmentactivities with the cooperation of the peoples concerned (Art. 7(3)) and“Governments shall take measures, in cooperation with the peoplesconcerned, to protect and preserve the environment of the territories theyinhabit.” (Art. 7(4)). Rights to remedies are provided in Article 12. Part IIof the Convention addresses land issues, including the rights of the peoplesconcerned to the natural resources pertaining to their lands. The rights include“the right to participate in the use, management and conservation of theseresources.” (Art. 15). Article 30 requires the governments to make knownto the peoples concerned their rights and duties.

Regional Human Rights Treaties

1) The African Charter on Human and Peoples’ Rights, (Banjul June 26, 1991)contains several provisions related to environmental rights. Article 21provides that “All peoples shall freely dispose of their wealth and naturalresources” and adds that this right shall be exercised in the exclusive interestof the people.” Article 24, which could be seen to complement or perhapsconflict with Article 21, states that “All peoples shall have the right to ageneral satisfactory environment favourable to their development.” Article7 provides that “every individual shall have the right to have his cause heard.”

2) Article 11 of the Additional Protocol to the American Convention on HumanRights in the area of Economic, Social and Cultural Rights (San Salvador,November 17, 1988), is entitled: “Right to a healthy environment.” Itproclaims:

• Everyone shall have the right to live in a healthy environment and tohave access to basic public services.

• The States Parties shall promote the protection, preservation andimprovement of the environment.

3) The European Convention on the Exercise of Children’s Rights (Strasbourg,January 25, 1996) aims at ensuring access to information and participationof children in decisions relevant to them, as well as appropriate remedies.

1.7 RIGHT TO ENVIRONMENT AS A HUMANRIGHT IN INDIA

The Constitution (Forty Second Amendment) Act 1976 explicitly incorporatedenvironmental protection and improvement as part of State policy through theinsertion of Article 48A of the Constitution of India. Article 51A (g) imposed asimilar responsibility on every citizen “to protect and improve the natural

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environment including forests, lakes, rivers, and wildlife and to have compassionfor all living creatures.” The Indian Supreme Court has made a significantcontribution in attempting to define right to environment. When a claim is broughtunder a particular article of the Constitution, this allows an adjudicating bodysuch as the Supreme Court to find a breach of this article, without the need for adefinition of an environmental right as such. All that the Court needs to do iswhat it must in any event do; namely, define the Constitutional right before it.Accordingly, the Court prepared to find a risk to life, or damage to health, on thefacts before it, would set a standard of environmental quality in defining theright litigated. This is well illustrated by the cases that have come before theSupreme Court, in particular in relation to the broad meaning given to the Rightto Life under Article 21 of the Constitution. The right to life has been used in adiversified manner in India. It includes, inter alia, the right to survive as a species,quality of life, the right to live with dignity and the right to livelihood. Article 21of the Indian Constitution states: ‘No person shall be deprived of his life orpersonal liberty except according to procedures established by law.’ The SupremeCourt expanded this right in two ways. Firstly, any law affecting personal libertyshould be reasonable, fair and just. Secondly, the Court recognised severalunarticulated liberties that were implied by Article 21. It is by this second methodthat the Supreme Court interpreted the right to life and personal liberty to includethe right to the environment.

Rural Litigation and Entitlement Kendra v. State of U.P (1985) was one of theearliest cases where the Supreme Court dealt with issues relating to environmentand ecological balance. The expanded concept of the right to life under the IndianConstitution was further elaborated on in Francis Coralie Mullin v. UnionTerritory of Delhi (1981) where the Supreme Court set out a list of positiveobligations on the State, as part of its duty correlative to the right to life. In thiscase the Court adopted an expanded understanding of human rights. It is onlythrough such an understanding that claims involving the environment can beaccommodated within the broad rubric of human rights. The link betweenenvironmental quality and the right to life was further addressed by the SupremeCourt in the Charan Lal Sahu v. Union of India (1990). Similarly, in SubashKumar v. State of Bihar (1991), the Court observed that ‘right to life guaranteedby Article 21 includes the right of enjoyment of pollution-free water and air forfull enjoyment of life.’ Through this case, the Court recognised the right to awholesome environment as part of the fundamental right to life. This case alsoindicated that the municipalities and a large number of other concernedgovernmental agencies could no longer rest content with unimplemented measuresfor the abatement and prevention of pollution. They may be compelled to takepositive measures to improve the environment. The Supreme Court has used theright to life as a basis for emphasising the need to take drastic steps to combat airand water pollution. It has directed the closure or relocation of industries andordered that evacuated land be used for the needs of the community. The courtshave taken a serious view of unscientific and uncontrolled quarrying and mining,issued orders for the maintenance of ecology around coastal areas, shifting ofhazardous and heavy industries and in restraining tanneries from dischargingeffluents.

Another expansion of the right to life is the right to livelihood (Article 41),which is a directive principle of state policy. This extension can check governmentactions in relation to an environmental impact that has threatened to dislocatethe poor and disrupt their lifestyles. A strong connection between the right to

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livelihood and the right to life in the context of environmental rights has thusbeen established over the years. Especially in the context of the rights ofindigenous people being evicted by development projects, the Court has beenguided by the positive obligations contained in Article 48A and 51A(g), and hasordered adequate compensation and rehabilitation of the evictees.

Matters involving the degradation of the environment have often come to theCourt in the form of petitions filed in the public interest. This mode of litigationhas gained momentum and has facilitated espousal of the claims of those whowould have otherwise gone unrepresented.

1.8 SUMMARY

• A broad recognition of the linkage between human rights and the environmentsince United Nations Conference on Environment and Development hascome through the development of Principle 10 of the Rio Declaration onEnvironment and Development. States and international organisations areincreasingly recognising the rights of access to information, publicparticipation, and access to justice. A notable example of such progress wasthe entry into force of the 1998 Aarhus Convention. Respect for humanrights is broadly accepted as a necessary condition for environmentalprotection and sustainable development. The fact that effective enjoymentof human rights protection, and that human rights and the environment areinterdependent and inter-related is now broadly reflected in national andinternational practices. In relation to substantive matters, a growing body ofcase law from many national jurisdictions is clarifying the linkages betweenhuman rights and the environment, in particular by: 1) recognising the rightto a healthy environment as a fundamental human right; 2) allowing litigationbased on this right, and facilitating its enforceability in domestic law byliberalising provisions on standing; 3) acknowledging that other human rightsrecognised in domestic legal systems can be violated as a result ofenvironmental degradation. The important role that the judiciary (nationaland international) can play in this regard cannot be overlooked.

• Therefore a rights-based approach can enhance the impact of policies andprogrammes at the national and international levels on this matter. It isimportant that Government and civil society groups associated with theprotection and promotion of human rights and the environment should bemore proactive in facilitating protection of environment and individuals.There is need for further developments in this respect, including throughthe adoption of new international legal instruments (at regional levels or,some suggest, the global level) to provide effectively for rights of access toinformation, public participation in decision-making, and access to justice.

1.9 TERMINAL QUESTIONS1) Discuss the relationship between human rights and conservation and

protection of environment.

2) Discuss the right to environment as human right in international law withparticular reference to right to water and rights of indigenous peoples.

3) Explain the evolution of right to environment as human right in India.

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Major InternationalEnvironmental Laws-I 1.10 ANSWERS AND HINTS

Self Assessment Questions

1) Refer to Section 1.32) Refer to Section 1.53) Refer to Section 1.6

Terminal Questions

1) The relationship that exists between environmental degradation and theviolation of basic human rights, have been the focus of recent debates innational and international human rights and environmental fora. Perspectivesof human rights to cases of environmental disruption, like the Bhopal andChernobyl disasters, has become more acknowledged over the yearsdepicting the fact that human rights and the environment are so inherentlyinterlinked that a clean and healthy environment could be termed a basichuman right. Let us not forget that degraded environmental conditionscontribute to a large extent, to the spread of communicable diseases. Indeveloping countries, most of the population lack basic health care services,almost a third of these people have no access to safe water supply. Theexhaustion of natural resources leads to unemployment and forced migrationand this would in turn affect the enjoyment and exercise of basic humanrights. Other common concerns relating to conservation of natural resourcesand protecting human dignity are interalia pollution of rivers, constructionof dams and barrages without proper environment impact assessment, lackof access to drinking water free from toxin or other contaminants, increaseduse of pesticides, degradation of marine and coastal resources, dumping ofland based solid waste into the sea, inland mining, poor land use practices,over fishing, destructive fishing techniques, shrimp cultivation, loss of coastalhabitats and deforestation, land based pollution etc have their immediateaffects on livelihood and human security thus affecting the basic humanrights of peoples. As it is clear to us, poverty situations and human rightsabuses are further worsened by environmental degradation. As a result ofsuch environmental destructive actions there is a realization in the last fewdecades the link between human rights and environment leading to anemergence of manifestation that a clean and healthy environment is essentialto the realisation of fundamental human rights such as the right to life,personal integrity, family life, health and development. To complete theanswer further elaborate on conservation of environment.

2) Water, a limited natural resource and a public good fundamental for life andhealth, is required for a range of different purposes, besides personal anddomestic uses, to realise many of the human rights enshrined in theInternational Covenant on Economic, Social and Cultural Rights (ICESCR).Water is essential for securing livelihoods (right to gain a living by work)and to produce food (right to adequate food) and ensure environmentalhygiene (right to health) enjoying certain cultural practices (right to takepart in cultural life). Therefore, human right to water is indispensable forleading a life in human dignity. It is a prerequisite for the realisation ofother human rights. Over a billion persons lack access to a basic water supply,while several do not have access to adequate sanitation, which is the primarycause of water contamination and diseases linked to water. The continuing

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contamination, depletion and unequal distribution of water is exacerbatingexisting poverty. Environmental hygiene, as an aspect of the right to healthunder Article 12(2)(b) of the ICESCR, encompasses taking steps on a non-discriminatory basis to prevent threats to health from unsafe and toxic waterconditions. The right to water, like any human right, imposes three types ofobligations on States parties: obligations to respect, obligations to protectand obligations to fulfill. It should also be seen in conjunction with otherrights enshrined in the International Bill of Human Rights, foremost amongstthem the right to life and human dignity.

The right to water has been recognised in a wide range of internationaldocuments, including treaties, declarations and other standards. For instance,Article 14(2) of the Convention on the Elimination of All Forms ofDiscrimination Against Women (1979) stipulates that States parties shallensure to women the right to “enjoy adequate living conditions, particularlyin relation to … water supply”. Article 24(2) of the Convention on the Rightsof the Child (1989) requires States parties to combat disease and malnutrition“through the provision of adequate nutritious foods and clean drinking-water”. Around the world there is a need to provide water security, whichmeans ensuring that freshwater, coastal and related ecosystems are protectedand improved; that sustainable development and political stability arepromoted, that every person has access to enough safe water at an affordablecost to lead a healthy and productive life and that the vulnerable are protectedfrom the risks of water-related hazards.

Therefore, governments should ensure that natural water resources areprotected from contamination by harmful substances and pathogenicmicrobes. Likewise, States parties should monitor and combat situationswhere aquatic eco-systems serve as a habitat for vectors of diseases andpose a risk to human living environments.

3) Human rights are international norms that help to protect all peopleeverywhere from severe political, legal, and social abuses dealing mainlywith how people should be treated by their governments and institutions.Human rights protect people against familiar abuses of people’s dignity andfundamental interests. These rights exist in morality and in law at the nationaland international levels. It is the responsibility of the state or governmentsto ensure enforcement of human rights and to call for compliance of otherstates actors and individuals with the same. Some examples: right to a fairtrial when charged with a crime, right to engage in political activity, right tofreedom of religion etc.

The Universal Declaration of Human Rights (1948) sets out a list of overtwo dozen specific human rights that countries should respect and protect.After the creation of the Universal Declaration, efforts were made to createtreaties that would make the rights in the Universal Declaration into normsof international law. And it was decided to create two separate treaties. Draftsof the two International Covenants were submitted to the General Assemblyfor approval in 1953, but approval was much delayed. Almost twenty yearsafter the Universal Declaration, the United Nations General Assembly finallyapproved the International Covenant on Civil and Political Rights and theInternational Covenant on Economic, Social, and Cultural Rights both in

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1966. The Civil and Political Covenant contains most of the civil and politicalrights found in the Universal Declaration. The Social Covenant containsthe economic and social rights found in the second half of the UniversalDeclaration. These treaties embodying Universal Declaration rights receivedenough State parties to become operative in 1976 and have now become themost important UN human rights treaties.

These specific rights of the Universal Declaration of Human Rights can bedivided into six or more families: security rights that protect people againstcrimes such as murder, massacre, torture, and rape; due process rights thatprotect against abuses of the legal system such as imprisonment withouttrial, secret trials, and excessive punishments; liberty rights that protectfreedoms in areas such as belief, expression, association, assembly, andmovement; political rights that protect the liberty to participate in politicsthrough actions such as communicating, assembling, protesting, voting, andserving in public office; equality rights that guarantee equal citizenship,equality before the law, and nondiscrimination; and social (or “welfare”)rights that require provision of education to all children and protectionsagainst severe poverty and starvation. Another family that might be includedis group rights. The Universal Declaration does not include group rights,but subsequent treaties do. Group rights include protections of ethnic groupsagainst genocide and the ownership by countries of their national territoriesand resources. The other important development in the evolution of grouprights is environmental rights the justification for this right must show thatenvironmental problems pose serious threats to fundamental human interests,values, or norms; that governments may protect.

1.11 REFERENCES AND SUGGESTED READINGS

1) Alston, P. 1999. Promoting Human Rights through Bills of Rights. Oxford:Oxford University Press.

2) Nickel, J. 1993. “The Human Right to A Safe Environment,” Yale Journalof International Law 18: 281-295.

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Right to Environment asHuman RightUNIT 2 INTERNATIONAL

HUMANITARIAN LAW ANDENVIRONMENT PROTECTION

Structure

2.1 Introduction

2.2 Objectives

2.3 Scope and Meaning of International Humanitarian Law2.3.1 Meaning of Armed Conflict

2.3.2 International Humanitarian Law: A Primer

2.4 Provisions Relating to Environment Protection in International HumanitarianLaw

2.5 Environment Impact Assessment of Armed Conflcits

2.5 Summary



2.7 References and Suggested Reading

2.1 INTRODUCTION

Rio Declaration on Environment and Development, 1992 provides that

“Warfare is internally destructive of sustainable development. States,therefore, shall respect international law providing protection for theenvironment in terms of armed conflict and cooperate in its furtherdevelopment as necessary”.

There is obvious evidence that modern warfare or warfare in general involvesconflicts not only between the warring parties or combatant, but also betweenman and nature. Environmental destruction has become an inevitable result ofmodern warfare and military tactics. Animal and plant species become extinct,forests become deserts, fertile farmland becomes a minefield, water becomescontaminated and native vegetation disappears. The nuclear, chemical andbiological weapons that emerges during the late 20th century present threats tolife itself and can hasten host of environmental disasters, such as deforestationand erosion, global warming, desertification, or holes in the ozone layer. Thedevastating effects of military weapons on the environment is reflected throughoutthe history of the 20th century, in world war I, world war II, the Korean andVietnam wars, the Cambodian civil war, Gulf Wars I and II, the Afghan CivilWar, and the Kosovo Conflict. The United Nations Environment Programme(UNEP) has conducted over twenty post-conflict assessments since 1999 in orderto determine the environmental impacts of war. The result of these findings isthe obvious destruction of environment during war and the exploitation and illegaltrade of natural resources in the aftermath of prolonged armed conflicts. Asignificant example of using the environment as a weapon in armed conflictoccurred in the Gulf War in 1990-91, when Iraqi President Saddam Husseinordered his troops to invade Kuwait. The Iraqi armed forces deliberately released

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crude oil into the Gulf, and set fire to Kuwaiti oil fields. For this very reason,Gulf War was called or termed an “eco-war”. When a conflict occurs theimmediate responsibility would be to save lives and minimise suffering, in away the focus is on human centric needs. Although one might argue that priorityshould be given to protection of individuals, but environmental concerns cannotbe ignored or overlooked during conflict situations. As we all know, in manyparts of the developing countries and elsewhere people depend on naturalresources for their livelihood. Therefore a degraded environment affects peoples’livelihood as well, which might lead to further instability and human crises.

In view of the foregoing, one can say that law of environmental protection andInternational Humanitarian Law (IHL) are closely related topics of growingconcern to the international community. Their close relationship and commonrational basis creates a need to use environmental principles and experiences ininterpreting the environmental aspects of the International Humanitarian Lawthat relate to environmental damage during war and prohibit the manipulation ofthe environment for hostile purposes.

This module is an introduction to “Environmental Protection in InternationalHumanitarian Law”. Students will be introduced to the scope and meaning ofInternational Humanitarian Law, focusing particularly on the environmentalprotection provisions in the IHL and will examine it as a tool to protect thenatural environment. Part I of the module deals with the scope and meaning ofIHL. Part II of the module outlines the general principles of IHL and furtherintroduces the specific provisions on environmental protection.

2.2 OBJECTIVES


• explain the meaning of armed conflict and its effects on environment;

• explain the nature and scope of International Humanitarian Law;

• discuss important International Humanitarian Law Conventions dealing withenvironment protection;

• discuss the important provisions of environment protection in InternationalHumanitarian Law; and

• discuss international response to concerns of environment protection duringarmed conflicts.

2.3 SCOPE AND MEANING OF INTERNATIONALHUMANITARIAN LAW

2.3.1 Meaning of Armed Conflict

In the course of this lecture there is continuous reference to conflicts or armedconflicts in general. It is important for us to understand the meaning of the term‘armed conflict’ before embarking on the nature and scope of InternationalHumanitarian Law. No specific definition can be attributed to conflicts as theyoccur due to variety of socio, economic and political reasons. In general terms,an armed conflict can be defined as any disagreement involving the use of weaponsbetween two or more Nations. An international war crimes tribunal in an importantcase, The Prosecutor v. Dusko Tadic (1995) defined armed conflict as follows:

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International HumanitarianLaw and Environment

Protection

An armed conflict exists whenever there is a resort to armed force betweenStates or protracted armed violence between governmental authoritiesand organised armed groups or between such groups within a State.

Discussions about armed conflicts largely focus on moralistic or pragmaticreasons. For instance F.L.Grieves, an international theorist, in his seminal work,“Conflict And Order: An Introduction to International Relation”, identifies fourcharacteristics of the nature of conflict: “First, human conflict is a fact of modernsocial life and is likely to remain so for the indefinite future. Second, the abolitionof war is a dream. Third, theories of Armageddon are likely to be not only emptybut even dangerous, and fourth, wars may be inevitable but nuclear war isunthinkable”. To put it simply, when humanity ceases to exist and people andNations get mired in political ideologies that itself might lead to genesis ofdisagreements between and amongst Nations.

2.3.2 International Humanitarian Law: A Primer

International humanitarian law is a set of rules which seek, for humanitarianreasons, to limit the effects of armed conflict. It protects persons who are not orare no longer participating in the hostilities and restricts the means and methodsof warfare. IHL applies only to armed conflict and does not cover or addressinternal tensions, disturbances or sporadic violence. International HumanitarianLaw is also known as the law of war or the law of armed conflict does notregulate whether a State may actually use force; this is governed by an important,but distinct, part of international law set out in the United Nations Charter. It ispart of international law, which is the body of rules governing relations betweenStates. International law is contained in agreements between States, in treaties orconventions and in customary rules, which consist of State practice consideredby them as legally binding, and in general principles. The principal documentsof international humanitarian law are the four Geneva Conventions of 1949 andtheir Additional Protocols of 1977.

The first Geneva Convention of 1949 protects wounded and sick soldiers onland during war. This Convention represents the fourth updated version of theGeneva Convention on the wounded and sick following those adopted in 1864,1906 and 1929. It contains 64 articles. These provide protection for the woundedand sick, but also for medical and religious personnel, medical units and medicaltransports. The Convention also recognises the distinctive emblems.

The second Geneva Convention protects wounded, sick and shipwrecked soldiersat sea during war. This Convention replaced Hague Convention of 1907 for theAdaptation to Maritime Warfare of the Principles of the Geneva Convention. Itclosely follows the provisions of the first Geneva Convention in structure andcontent. It has 63 articles specifically applicable to war at sea and also protectshospital ships.

The third Geneva Convention applies to prisoners of war. This Conventionreplaced the Prisoners of War Convention of 1929. It contains 143 articles whereasthe 1929 Convention had only 97. The categories of persons entitled to prisonerof war status were broadened in accordance with Conventions I and II. Theconditions and places of captivity were more precisely defined, particularly withregard to the labour of prisoners of war, their financial resources, the relief theyreceive, and the judicial proceedings instituted against them. The Convention

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establishes the principle that prisoners of war shall be released and repatriatedwithout delay after the cessation of active hostilities. The Convention has fiveannexes containing various model regulations and identity and other cards.

The fourth Geneva Convention applies to protection of civilians, includedoccupied territories. The Geneva Conventions, which were adopted before 1949were concerned with combatants only, not with civilians. The events of WorldWar II showed the disastrous consequences of the absence of a convention forthe protection of civilians in wartime. The Convention adopted in 1949 takesaccount of the experiences of World War II. It is composed of 159 articles. Itcontains a short section concerning the general protection of populations againstcertain consequences of war, without addressing the conduct of hostilities, assuch, which was later examined in the Additional Protocols of 1977. The bulk ofthe Convention deals with the status and treatment of protected persons,distinguishing between the situation of foreigners on the territory of one of theparties to the conflict and that of civilians in occupied territory. It spells out theobligations of the Occupying Power vis-à-vis the civilian population and containsdetailed provisions on humanitarian relief for populations in occupied territory.It also contains a specific regime for the treatment of civilian internees. It hasthree annexes containing a model agreement on hospital and safety zones, modelregulations on humanitarian relief and model cards.

The Conventions define fundamental rights for combatants removed from thefighting due to injury, illness, or capture, and for civilians. The 1977 AdditionalProtocols, which supplement the Geneva Conventions, further expand thoserights. In the two decades that followed the adoption of the Geneva Conventions,the world witnessed an increase in the number of non-international armed conflictsand wars of national liberation. In response, two Protocols Additional to the four1949 Geneva Conventions were adopted in 1977. They strengthen the protectionof victims of international (Protocol I) and non-international (Protocol II) armedconflicts and place limits on the way wars are fought. Protocol II was the first-ever international treaty devoted exclusively to situations of non-internationalarmed conflicts. Implementation of international humanitarian law concerns twosituations viz International armed conflicts that involve at least two countriesand armed conflicts that take place in one country (such as those between agovernment and rebel forces).


1) Who are protected under Second Geneva Convention?

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Today, all nations have ratified the Geneva Conventions, thus recognising a legalobligation to uphold them in the midst of war. Nations that ratify thesehumanitarian treaties are required to enact domestic laws to provide legal sanctionsagainst violators. While the world community can apply few legal sanctions

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Protection

against Nations that violate the law, there are numerous practical reasons forthem to respect IHL. They are enumerated below:

• The humane treatment of individuals by one side often dictates treatmentby the other.

• The impact of world opinion.

• The safeguarding of a civilisation and its economic resources.

• The use of IHL as a means to facilitate the resolution of conflicts and returnto a state of peace.

Legal action against violators can take place before an international tribunal,such as occurred following WWII, and after the conflicts in Former Yugoslaviaand Rwanda. In addition, trials of a soldier or civilian by his or her country’sauthorities may be conducted by a military or civilian court under the authorityof that nation’s legal code.

The most effective means of securing compliance with these humanitarian rulesis through widespread public education in peacetime. In ratifying the GenevaConventions, Nations agree to educate their military and the public. The moreknowledgeable members of the armed forces and the general public are aboutthe law, the more likely it is to be obeyed. The rules of IHL for the protection ofthe environment aim not to prevent damage altogether, but rather to limit it to alevel deemed tolerable.

Basic Tenets of International Humanitarian Law

• Combatants who are out of the fight and those not taking part in hostilitiesare entitled to respect for their lives and physical and moral integrity. Theyare to be protected and treated humanely, without adverse discrimination.

• It is forbidden to kill or injure an enemy who surrenders or who is out of thefight.

• The wounded and sick are to be collected and cared for by the party that hasthem in its power. Medical personnel, establishments, transports, andmaterials are to be protected. The protective emblems must be respected.

• The lives, dignity, personal rights, and religious convictions of capturedcombatants and civilian internees must be respected, which includes theirprotection against violence and reprisals. They have the right to correspondwith their families and to receive humanitarian assistance.

• Those protected by the law are entitled to fundamental judicial guarantees.

• No one is to be subjected to physical or mental torture, corporal punishment,or cruel and degrading treatment.

• Civilians are not to be the objects of attack.

Although IHL focuses on the treatment of civilians and prisoners of war and theuse of weapons of mass destruction, it does not neglect environment protectioncompletely. But, protecting people’s lives only and leaving them in a pollutedenvironment, as a result of armed conflict, is not adequate. While armed conflictmay directly kill civilians, a polluted environment will directly harm civiliansand indirectly kill them. Humanitarian organisations that strive hard to prevent

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human causalities during armed conflicts, of late have also identified thatenvironmental protection to achieve real humanitarian protection. This protectioncould reduce or limit damage to the environment. For example, during the IraqiFreedom military operation in 2003, a water production factory was targeted inBaghdad, causing severe water supply shortages to the residents over there. Theseshortages can cause contagious sickness, as a direct result of uncleanliness. TheInternational Committee of the Red Cross (ICRC) personnel in cooperation withIraqi engineers succeeded in repairing damaged engines enabling them to produce50 per cent of the water supplies needed by the civilians. The next part of thismodule deals with an outline and assessment of environment protection provisionsin the framework of International Humanitarian Law.

2.4 PROVISIONS RELATING TOENVIRONMENTAL PROTECTION ININTERNATIONAL HUMANITARIAN LAW

It is well known that incidental to negative effects of armed conflicts aredestruction of environment. The law of environmental protection has developedprimarily in the twentieth century, whereas the international law of war or armedconflict has evolved over many centuries. But it has only recently developedcharacteristics similar to the law of environmental protection. Today, the laws ofwar contain a number of limitations on environmentally disruptive activitiesduring hostilities. There exists an environmental ethic in both the regimes of lawwhich is indicative of a common philosophy or common value system shared bythem. Attacking environment as a means of waging war is not a novel concept.There are a number of wars in which attempts have been made to annihilate theenemy by assaulting the environment. Environment represents the hope and futureof every society. Destroying the environment means destroying the society itself.

Today’s wars are deadlier wars. Brutal disregard for humanitarian norms and forthe Geneva Conventions’ rules of warfare now extends to environment which isattacked during conflicts. Therefore, the issue of destruction of the environmentis one of the most disturbing aspects of armed conflicts today. Greaterenvironmental destruction in modern warfare and the development of thetechnological capacity for greater destruction of the environment in the modernage are the two dangerous trends. Therefore, the need to understand theinternational laws that govern the means and methods of warfare is greater thanever. In 1992, the United Nations General Assembly held an important discussionon the protection of environment during armed conflicts and adopted a Resolution(47/37) that urged Member States to take all measures to ensure compliancewith existing international law on the protection of environment during armedconflicts. It also recommended that States take steps to incorporate the relevantprovisions of international law into their military manuals and ensure that theyare disseminated. Consequent to this, the International Committee of the RedCross (ICRC) issued a set of guidelines in 1994 that summarized the existingapplicable international rules for protecting the environment during armedconflicts.

The environment protection provisions in the framework of the InternationalHumanitarian Law might be divided into general provisions and specificprovisions.

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Protection

2.4.1 General Provisions

The general provisions identified in IHL instruments can be read broadly to includeboth humanitarian protection and environment protection. The objective of theseprovisions is to limit the ability of parties to armed conflict to choose such meansand methods of warfare that might affect the environment.

1) The Choice of Methods or Means of Warfare or Injuring the Enemy isnot Unlimited

The Charter of the United Nations prohibits war and most armed conflicts. Butuse of force is justified if used in self-defense in accordance with the UN Charter.When war occurs, combatants should seek specifically to neutralise the otherparty’s armed forces, and not to cause unnecessary harm to civilian populationor the natural environment. Therefore, it is implied that environmental warfareshould be prohibited completely. Historically, the limit on parties to armedconflicts’ choice of methods of warfare was set forth in the Declaration ofSt.Petersburg of 1868. The Declaration condemns the use of arms that exceedthe goal of war that is to weaken the military forces of the enemy. This limitmight be extended to protect the environment, since the use of weapons thatwould affect the environment is also likely to aggravate sufferings of individuals.

2) Principle of Discrimination

The term ‘discriminate’ is purely a military term, according to which combatantsmust always distinguish between civilians and civilian objects on the one hand,and combatants and military targets on the other. For example, schools, hospitals,worship places etc should be excluded from military operations. If this principleis violated, it not only affects civilians and civilians’ installations but would alsoaffect environment and natural resources.

3) Principle of Proportionality

To be lawful, weapons and strategy or tactics must be proportional to their militaryobjective. Disproportionate weaponry and tactics are excessive, and as suchillegal. The principle of proportionality places limits on parties to armed conflictsin choosing methods and tactics of warfare. This principle requires weighing thebalance between a valid military target and environmental effects. Beforedestroying a natural resource site by military activity, the military authority shouldbalance the expected environmental harm vis-à-vis the military benefits expectedto be gained. If the harm is excessive in relation to the concrete and direct militaryadvantage anticipated, it is considered a war crime. For instance, destroying aprotected area of endangered species may be judged a war crime, if that destructionoutweighs any military benefit.

4) Principle of Humanity

This principle, otherwise called “Martens clause’ stems from the premise topreserve–even in armed conflict–a certain minimum of human dignity. Acts notexpressively forbidden are therefore still subject to a test of basic humanity. Thisprinciple played a major role in the Nuremberg Trials during the Second WorldWar period. The principle of humanity states that a soldier’s aim is to disableother combatants in order to reach a defined military objective. Indiscriminateattacks and attacks against civilians or civilian targets are strictly prohibited. Also

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important, according to this principle is the need to avert chemical and biologicalwarfare. The use of such methods and tactics of warfare will certainly affect theenvironment.

2.4.2 Specific Provisions

As it is impossible to cover all the relevant legal instruments here, the focuswould be limited to important provisions.

The importance of the general principles stated in the 1868 St. PetersburgDeclaration has already been mentioned. The Hague Convention respecting theLaws and Customs of War on Land (Convention No. IV of 1907) reaffirms andexpands on those principles. Its annexed Regulations contain a provision, namely,Art. 23 para. 1(g), that states that it is forbidden “to destroy or seize the enemy’sproperty, unless such destruction or seizure be imperatively demanded by thenecessities of war”, is one of the earliest provisions for the protection of theenvironment in armed conflict.

Several treaties that limit or prohibit the use of certain means of warfare alsocontribute to the protection of the environment in armed conflict. They are theProtocol for the Prohibition of the Use in War of Asphyxiating, Poisonous orOther Gases and of Bacteriological Methods of Warfare, adopted in Geneva,1925 and the Convention on the Prohibition of the Development, Productionand Stockpiling of Bacteriological (Biological) and Toxin Weapons and on theirDestruction, 1972. It means military use of biological organisms or their toxicproducts to cause death, disability or damage to man, his domestic animals orcrops. The Geneva Gas Protocol of 1925 prevents the use of bacteriologicalmethods of warfare. The 1972 Bacteriological Convention supplemented by aFinal Declaration adopted in 1986, makes possession and use of bacteriologicalweapons illegal. The 1972 Convention has been further expanded by the newConvention on the Prohibition of the Development, Production, Stockpiling andUse of Chemical Weapons and Their Destruction, 1993. The 1981 Conventionon Inhumane Weapons also prohibits the use of toxic weapons and chemicalweapons. But there is, as yet, no customary international law against biologicalweapons. If this form of warfare were used on a major scale in war, theenvironmental damage would be extensive. As with chemical weapons, the effectof biological weapons is indiscriminate.

The other important Convention affording the environment specific protectionis the Convention on the Prohibition of Military or Any Other Hostile Use ofEnvironmental Modification Techniques (“ENMOD” Convention adopted bythe United Nations on 10 December 1976 and Protocol I of 1977 additional tothe Geneva Conventions of 1949.


2) What is principle of humanity?

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Protection

The Environmental Modification Convention prevents environmentalmodification techniques of waging war. Article. I enjoins state parties not toengage in military or any other hostile use of environmental modificationtechniques, having widespread, long-lasting or severe effects as the means ofdestruction, damage or injury to any other state party. Environmental modificationincludes deliberate manipulation of natural process-the dynamics, compositionor structure of the earth including its biota, lithosphere, hydrosphere, andatmosphere or outer space. The most potential environmental modificationtechnique that human ingenuity has devised is the nuclear weapon. By seedingcumulus clouds with silver and lead iodides, the U.S. tried to manipulate rainfallfor military purposes. It is uncertain whether these efforts to manipulate theenvironment were effective. Nevertheless, it has been concluded that extensiveand successful cloud seeding can result in flooding and erosion, disruption ofwild life and plant life and the presence of silver and iodide in the food chain.

In the absence of an Environmental Modification Convention, environmentalmodification as a means of warfare would be permissible if military necessityexisted. This Convention however, takes away this justification for the state partiesto it in relation to each other.

Specific rules of international humanitarian law contained in Additional ProtocolI to the 1949 Geneva Conventions confer protection to the environment byprohibiting widespread, long-term and severe damage to the natural environment.In addition, other rules and principles ensure protection of the environment,though without mentioning it specifically. This is particularly the case with generalcustomary principles, such as the principle of distinction and that ofproportionality.

Article 35 (3) and Article 55 of Protocol I are perhaps the most importantenvironmental protection aspects of the laws of war and require significantconsideration of the environmental impact of military weapons and methodsduring hostilities. The causing of widespread, long-term, severe damage bybelligerents would be defensible under the doctrine of military necessity. But themilitary necessity would have to be something similar to self-defense. Meredenial of ground cover to the enemy is not a military necessity. In cases of massdestruction, the question to be examined is: whether military necessity could bea defense to the destruction caused? In the absence of a “defense of militarynecessity”, Protocol I would hold a belligerent criminally liable for causingextensive damage.

It is a basic rule that objects indispensable to the survival of civilian populationshould be protected at all times both during peace and war. Article 54, ProtocolI, describe typical indispensable objects for the survival of the civilian population.Two things must be considered to comply with this Article, when planning militaryoperations. Firstly: Toxic pollution of the food chain, as the effects of dischargesof hazardous wastes into the eco-system is now well-known. Therefore, caremust be taken to prevent pollution of the sources of food of the local population.For example, in the realm of naval warfare, this might require careful targetselection so as to ensure that the cargo of a vessel does not pollute the waters inwhich it sinks (particularly bulk oil carriers). Secondly: Aquifers: They areunderground natural water bearing rock structures extremely important to theenvironment. They provide drinking water used in private and commercial wells,

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irrigation water for agricultural purposes etc. Aquifers are vulnerable to depletionby excessive human demands and contamination by hazardous substances throughsoil percolation. Once contaminated, underground water sources are difficult toclean. Thus, law of armed conflict needs to consider the impact of militaryoperations on aquifers as they are indispensable objects to the survival of thecivilian population.

Thus it can be said that the international law of armed conflict has aspects whichreflect its concern for environmental protection. For example, Article 55 of theProtocol I limits widespread long-term and severe damage to the environment.The primary purpose of this limitation is to protect the environment and itssecondary purpose is to limit the destruction caused by war. Secondly, the lawsof war use environmental protection law to strengthen the pre-existing limitationson armed conflicts. For example, Article 56 of Protocol I prohibits destructionof works and installations containing dangerous forces. This limitation servesthe primary purpose of reducing losses caused by war and, its secondary purposeis to benefit the environment.

2.5 ENVIRONMENTAL IMPACT ASSESSMENTOF ARMED CONFLICTS

It is important to conduct an assessment of the impact of armed conflicts onenvironment for minimising damage to environment and natural resources duringarmed conflicts. It should be an obligation to conduct an advance assessment ofthe impact of military action on the environment. Given the extensive and insome cases irreversible consequences of such action, it is crucial to adoptpreventive measures, and for that the first step is for everyone involved to assessthe environmental impact of every planned military undertaking. More ofteninformation concerning the environmental impact of armed conflict has beensupplied by humanitarian organisations on the basis of their wide-rangingexperience of post-conflict reconstruction all over the world. It is imperative totackle the problem of environmental impact in the pre-conflict or planning phase.So the principle of prevention should be clearly adopted by parties to conflictsand it should also become part of the military manuals. Let us not forget that thewar preparation phase already has a detrimental impact on the ground in theform of a more intensive use of natural resources resulting from militarymanoeuvres (deforestation and the building of dams, encampments andinfrastructure such as roads and runways, bridges and water supply and wastewater disposal systems). All this leads to productive zones being abandoned bythe local population as they are occupied by the armed forces, leading to adeterioration of farmland, local enterprises, services and the environment ingeneral. It has to be realised that the greater the damage and the more it hampersthe stabilisation process, the higher the price to be paid for the reconstructionprocess.

A 2009 report by the UN’s Environmental Programme UNEP, titled “FromConflict to Peacebuilding – the Role of Natural Resources and the Environment”discusses the linkages between armed conflict, peace building and theenvironment. The UNEP’s report is interesting in that it addresses an extremelyimportant issue. At the same time, it holds some valuable recommendationsalthough some are more realistic and relevant than others. The main task for

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Protection

environmental considerations in times of armed conflict is exactly in thesesituations. When hostilities have ceased, there is a strong need to secure relativenormality as quickly as possible in terms of providing basic resources for civilianpopulations, facilitating a stable agricultural and economic infrastructure bysecuring the delivery of clean water and other resources etc. all in order to securethe return to normality and alleviate the suffering of civilians. In this light, theReport deserves credit for addressing the link between peace building and theenvironment.

The Report makes a number of recommendations. Firstly, the Report recommendsthat the UN system needs to improve its capacity to deliver early warning andearly action in countries that are vulnerable to conflicts over natural resources.Secondly, the Report recommends that oversight and protection of naturalresources during armed conflicts is improved. Thus, the Report, inter alia, callsfor new legal instruments protecting natural resources during armed conflicts.More interestingly, the Report calls for the taking into account of sharing ofnatural resources in the deal-making of peace agreements and indeed in thepeacekeeping process. Moreover, the Report recommends that the UN’speacekeeping operations become better at taking the environment and naturalresources into account. The Report notes that often it is not until many years intoan intervention that the issue of natural resource management receives attention.This is arguably the most important recommendation of the Report. Although itmight seem rather obvious, it is paramount that the peacekeeping missions inplace in various countries are aware and equipped to deal with the specificenvironmental conditions in each country. At the same time, it would appear thatthis recommendation would not be all that difficult to implement within theexisting UN peacekeeping organisation. Finally, the Report recommends thatthe international community ought to help national authorities in post-conflictcountries with better administrating extraction processes.

In all of this the media have a crucial part to play, in that they are the ones toconvey the message about environmental devastation. Public opinion can in turnbring pressure to bear on the parties to armed conflcit; this is what happenedwith the Vietnam war, as a result of the media images of ravaged areas broadcastall over the world which showed to one and all the pointless cruelty of certainactions. Public disapproval eventually swayed the political decision-makers whoended up bowing to the pressure of public opinion. Such an outcome is scarcelypossible where the reporting is done by embedded journalists.


3) What happened in Vietnam War?

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Major InternationalEnvironmental Laws-I 2.6 SUMMARY

• Environmental warfare has been used throughout the history. However, thetrend over the years has been the tendency to cause greater destruction tothe environment than ever before. Munitions have been used against largerand ill-defeated target areas, resulting in high levels of environmentaldamage. It is because of this environmentally destructive trend in modernwarfare and the development of technology capable of even greaterdestruction that the law of armed conflict has adopted environmentalprotection principles. Today, under customary as well as conventionalinternational law of warfare the importance of preserving environment hasfinally been recognised. Consequently, the selection of military weapons,methods and objects of attack should also be based on ecologicalconsiderations, e.g., impact on nature, destruction of natural balance, andintroduction of irreversible processes.

2.7 TERMINAL QUESTIONS1) Explain the importance of prevention of exploitation of environment during

armed conflicts.

2) Explain the nature and scope of International Humanitarian Law.

3) What are the general and specific provisions of International HumanitarianLaw dealing with environment concerns or protection?

4) Discuss about the environment impact assessment of armed conflicts.

2.8 ANSWERS AND HINTS

Sefl Assessment Questions

1) Refer to Sub-section 2.3.2


3) Refer to Section 2.5

Terminal Questions

1) It is well known that incidental to negative effects of armed conflicts aredestruction of environment. The law of environmental protection hasdeveloped primarily in the twentieth century, whereas the international lawof war or armed conflict has evolved over many centuries. But it has onlyrecently developed characteristics similar to the law of environmentalprotection. Today, the laws of war contain a number of limitations onenvironmentally disruptive activities during hostilities. There exists anenvironmental ethic in both the regimes of law which is indicative of acommon philosophy or common value system shared by them. Attackingenvironment as a means of waging war is not a novel concept. There are anumber of wars in which attempts have been made to annihilate the enemyby assaulting the environment. Environment represents the hope and futureof every society. Destroying the environment means destroying the societyitself.

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Protection

Today’s wars are deadlier wars. Brutal disregard for humanitarian normsand for the Geneva Conventions’ rules of warfare now extends toenvironment which is attacked during conflicts. Therefore, the issue ofdestruction of the environment is one of the most disturbing aspects ofarmed conflicts today. Greater environmental destruction in modern warfareand the development of the technological capacity for greater destructionof the environment in the modern age are the two dangerous trends.Therefore, the need to understand the international laws that govern themeans and methods of warfare is greater than ever. In 1992, the UnitedNations General Assembly held an important discussion on the protectionof environment during armed conflicts and adopted a Resolution (47/37)that urged Member States to take all measures to ensure compliance withexisting international law on the protection of environment during armedconflicts. It also recommended that States take steps to incorporate therelevant provisions of international law into their military manuals andensure that they are disseminated. Consequent to this, the InternationalCommittee of the Red Cross (ICRC) issued a set of guidelines in 1994 thatsummarized the existing applicable international rules for protecting theenvironment during armed conflicts.

The environment protection provisions in the framework of the InternationalHumanitarian Law might be divided into general provisions and specificprovisions.

2) International humanitarian law is a set of rules which seek, for humanitarianreasons, to limit the effects of armed conflict. It protects persons who arenot or are no longer participating in the hostilities and restricts the meansand methods of warfare. IHL applies only to armed conflict and does notcover or address internal tensions, disturbances or sporadic violence.International Humanitarian Law is also known as the law of war or the lawof armed conflict does not regulate whether a State may actually use force;this is governed by an important, but distinct, part of international law setout in the United Nations Charter. It is part of international law, which isthe body of rules governing relations between States. International law iscontained in agreements between States, in treaties or conventions and incustomary rules, which consist of State practice considered by them aslegally binding, and in general principles. The principal documents ofinternational humanitarian law are the four Geneva Conventions of 1949and their Additional Protocols of 1977.

The first Geneva Convention of 1949 protects wounded and sick soldierson land during war. This Convention represents the fourth updated versionof the Geneva Convention on the wounded and sick following those adoptedin 1864, 1906 and 1929. It contains 64 articles. These provide protectionfor the wounded and sick, but also for medical and religious personnel,medical units and medical transports. The Convention also recognises thedistinctive emblems.

The second Geneva Convention protects wounded, sick and shipwreckedsoldiers at sea during war. This Convention replaced Hague Convention of1907 for the Adaptation to Maritime Warfare of the Principles of the GenevaConvention. It closely follows the provisions of the first Geneva Convention

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in structure and content. It has 63 articles specifically applicable to war atsea and also protects hospital ships.

The third Geneva Convention applies to prisoners of war. This Conventionreplaced the Prisoners of War Convention of 1929. It contains 143 articleswhereas the 1929 Convention had only 97. The categories of persons entitledto prisoner of war status were broadened in accordance with Conventions Iand II. The conditions and places of captivity were more precisely defined,particularly with regard to the labour of prisoners of war, their financialresources, the relief they receive, and the judicial proceedings institutedagainst them. The Convention establishes the principle that prisoners ofwar shall be released and repatriated without delay after the cessation ofactive hostilities. The Convention has five annexes containing various modelregulations and identity and other cards.

The fourth Geneva Convention applies to protection of civilians, includedoccupied territories. The Geneva Conventions, which were adopted before1949 were concerned with combatants only, not with civilians. The eventsof World War II showed the disastrous consequences of the absence of aconvention for the protection of civilians in wartime. The Conventionadopted in 1949 takes account of the experiences of World War II. It iscomposed of 159 articles. It contains a short section concerning the generalprotection of populations against certain consequences of war, withoutaddressing the conduct of hostilities, as such, which was later examined inthe Additional Protocols of 1977. The bulk of the Convention deals withthe status and treatment of protected persons, distinguishing between thesituation of foreigners on the territory of one of the parties to the conflictand that of civilians in occupied territory. It spells out the obligations of theOccupying Power vis-à-vis the civilian population and contains detailedprovisions on humanitarian relief for populations in occupied territory. Italso contains a specific regime for the treatment of civilian internees. It hasthree annexes containing a model agreement on hospital and safety zones,model regulations on humanitarian relief and model cards.

The Conventions define fundamental rights for combatants removed fromthe fighting due to injury, illness, or capture, and for civilians. The 1977Additional Protocols, which supplement the Geneva Conventions, furtherexpand those rights. In the two decades that followed the adoption of theGeneva Conventions, the world witnessed an increase in the number ofnon-international armed conflicts and wars of national liberation. Inresponse, two Protocols Additional to the four 1949 Geneva Conventionswere adopted in 1977. They strengthen the protection of victims ofinternational (Protocol I) and non-international (Protocol II) armed conflictsand place limits on the way wars are fought. Protocol II was the first-everinternational treaty devoted exclusively to situations of non-internationalarmed conflicts. Implementation of international humanitarian law concernstwo situations viz International armed conflicts that involve at least twocountries and armed conflicts that take place in one country. Furtherelaborate.

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Protection

3) General Provisions

The general provisions identified in IHL instruments can be read broadlyto include both humanitarian protection and environment protection. Theobjective of these provisions is to limit the ability of parties to armed conflictto choose such means and methods of warfare that might affect theenvironment.

1) The Choice of Methods or Means of Warfare or Injuring the Enemyis not Unlimited

The Charter of the United Nations prohibits war and most armedconflicts. But use of force is justified if used in self-defense inaccordance with the UN Charter. When war occurs, combatants shouldseek specifically to neutralise the other party’s armed forces, and not tocause unnecessary harm to civilian population or the naturalenvironment. Therefore, it is implied that environmental warfare shouldbe prohibited completely. Historically, the limit on parties to armedconflicts’ choice of methods of warfare was set forth in the Declarationof St.Petersburg of 1868. The Declaration condemns the use of armsthat exceed the goal of war that is to weaken the military forces of theenemy. This limit might be extended to protect the environment, sincethe use of weapons that would affect the environment is also likely toaggravate sufferings of individuals.

2) Principle of Discrimination

The term ‘discriminate’ is purely a military term, according to whichcombatants must always distinguish between civilians and civilianobjects on the one hand, and combatants and military targets on theother. For example, schools, hospitals, worship places etc should beexcluded from military operations. If this principle is violated, it notonly affects civilians and civilians’ installations but would also affectenvironment and natural resources.

3) Principle of Proportionality

To be lawful, weapons and strategy or tactics must be proportional totheir military objective. Disproportionate weaponry and tactics areexcessive, and as such illegal. The principle of proportionality placeslimits on parties to armed conflicts in choosing methods and tactics ofwarfare. This principle requires weighing the balance between a validmilitary target and environmental effects. Before destroying a naturalresource site by military activity, the military authority should balancethe expected environmental harm vis-à-vis the military benefits expectedto be gained. If the harm is excessive in relation to the concrete anddirect military advantage anticipated, it is considered a war crime. Forinstance, destroying a protected area of endangered species may bejudged a war crime, if that destruction outweighs any military benefit.

4) Principle of Humanity

This principle, otherwise called “Martens clause’ stems from the premiseto preserve–even in armed conflict–a certain minimum of humandignity. Acts not expressively forbidden are therefore still subject to a

36


test of basic humanity. This principle played a major role in theNuremberg Trials during the Second World War period. The principleof humanity states that a soldier’s aim is to disable other combatants inorder to reach a defined military objective. Indiscriminate attacks andattacks against civilians or civilian targets are strictly prohibited. Alsoimportant, according to this principle is the need to avert chemical andbiological warfare. The use of such methods and tactics of warfare willcertainly affect the environment.

Specific Provisions

As it is impossible to cover all the relevant legal instruments here, the focuswould be limited to important provisions.

The importance of the general principles stated in the 1868 St. PetersburgDeclaration has already been mentioned. The Hague Convention respectingthe Laws and Customs of War on Land (Convention No. IV of 1907)reaffirms and expands on those principles. Its annexed Regulations containa provision, namely, Art. 23 para. 1(g), that states that it is forbidden “todestroy or seize the enemy’s property, unless such destruction or seizure beimperatively demanded by the necessities of war”, is one of the earliestprovisions for the protection of the environment in armed conflict.

Several treaties that limit or prohibit the use of certain means of warfarealso contribute to the protection of the environment in armed conflict. Theyare the Protocol for the Prohibition of the Use in War of Asphyxiating,Poisonous or Other Gases and of Bacteriological Methods of Warfare,adopted in Geneva, 1925 and the Convention on the Prohibition of theDevelopment, Production and Stockpiling of Bacteriological (Biological)and Toxin Weapons and on their Destruction, 1972. It means military use ofbiological organisms or their toxic products to cause death, disability ordamage to man, his domestic animals or crops. The Geneva Gas Protocol of1925 prevents the use of bacteriological methods of warfare. The 1972Bacteriological Convention supplemented by a Final Declaration adoptedin 1986, makes possession and use of bacteriological weapons illegal. The1972 Convention has been further expanded by the new Convention on theProhibition of the Development, Production, Stockpiling and Use ofChemical Weapons and Their Destruction, 1993. The 1981 Convention onInhumane Weapons also prohibits the use of toxic weapons and chemicalweapons. But there is, as yet, no customary international law againstbiological weapons. If this form of warfare were used on a major scale inwar, the environmental damage would be extensive. As with chemicalweapons, the effect of biological weapons is indiscriminate.

The other important Convention affording the environment specificprotection is the Convention on the Prohibition of Military or Any OtherHostile Use of Environmental Modification Techniques (“ENMOD”Convention adopted by the United Nations on 10 December 1976 andProtocol I of 1977 additional to the Geneva Conventions of 1949.

4) It is important to conduct an assessment of the impact of armed conflicts onenvironment for minimizing damage to environment and natural resourcesduring armed conflicts. It should be an obligation to conduct an advanceassessment of the impact of military action on the environment. Given the

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Protection

extensive and in some cases irreversible consequences of such action, it iscrucial to adopt preventive measures, and for that the first step is for everyoneinvolved to assess the environmental impact of every planned militaryundertaking. More often information concerning the environmental impactof armed conflict has been supplied by humanitarian organisations on thebasis of their wide-ranging experience of post-conflict reconstruction allover the world. It is imperative to tackle the problem of environmental impactin the pre-conflict or planning phase. So the principle of prevention shouldbe clearly adopted by parties to conflicts and it should also become part ofthe military manuals. Let us not forget that the war preparation phase alreadyhas a detrimental impact on the ground in the form of a more intensive useof natural resources resulting from military manoeuvres (deforestation andthe building of dams, encampments and infrastructure such as roads andrunways, bridges and water supply and waste water disposal systems). Allthis leads to productive zones being abandoned by the local population asthey are occupied by the armed forces, leading to a deterioration of farmland,local enterprises, services and the environment in general. It has to be realisedthat the greater the damage and the more it hampers the stabilisation process,the higher the price to be paid for the reconstruction process.

A 2009 report by the UN’s Environmental Programme UNEP, titled “FromConflict to Peacebuilding – the Role of Natural Resources and the Environment”discusses the linkages between armed conflict, peace building and theenvironment. The UNEP’s report is interesting in that it addresses an extremelyimportant issue. At the same time, it holds some valuable recommendationsalthough some are more realistic and relevant than others. The main task forenvironmental considerations in times of armed conflict is exactly in thesesituations. When hostilities have ceased, there is a strong need to secure relativenormality as quickly as possible in terms of providing basic resources for civilianpopulations, facilitating a stable agricultural and economic infrastructure bysecuring the delivery of clean water and other resources etc. all in order to securethe return to normality and alleviate the suffering of civilians. In this light, theReport deserves credit for addressing the link between peace building and theenvironment.

The Report makes a number of recommendations. Firstly, the Report recommendsthat the UN system needs to improve its capacity to deliver early warning andearly action in countries that are vulnerable to conflicts over natural resources.Secondly, the Report recommends that oversight and protection of naturalresources during armed conflicts is improved. Thus, the Report, inter alia, callsfor new legal instruments protecting natural resources during armed conflicts.More interestingly, the Report calls for the taking into account of sharing ofnatural resources in the deal-making of peace agreements and indeed in thepeacekeeping process. Moreover, the Report recommends that the UN’speacekeeping operations become better at taking the environment and naturalresources into account. The Report notes that often it is not until many years intoan intervention that the issue of natural resource management receives attention.This is arguably the most important recommendation of the Report. Although itmight seem rather obvious, it is paramount that the peacekeeping missions inplace in various countries are aware and equipped to deal with the specificenvironmental conditions in each country. At the same time, it would appear thatthis recommendation would not be all that difficult to implement within the

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existing UN peacekeeping organisation. Finally, the Report recommends thatthe international community ought to help national authorities in post-conflictcountries with better administrating extraction processes.

In all of this the media have a crucial part to play, in that they are the ones toconvey the message about environmental devastation. Public opinion can in turnbring pressure to bear on the parties to armed conflict; this is what happenedwith the Vietnam war, as a result of the media images of ravaged areas broadcastall over the world which showed to one and all the pointless cruelty of certainactions. Public disapproval eventually swayed the political decision-makers whoended up bowing to the pressure of public opinion. Such an outcome is scarcelypossible where the reporting is done by embedded journalists.

2.9 REFERENCES AND SUGGESTED READINGS1) Four Geneva Conventions of 1949.

2) 1977 Additional Protocols I and II of the Geneva Conventions.

3) Declaration Renouncing the Use, in Time of War, of Explosive ProjectilesUnder 400 Grammes Weight. Saint Petersburg, 29 November / 11 December1868.

4) Convention (IV) respecting the Laws and Customs of War on Land and itsAnnex: Regulations Concerning the Laws and Customs of War on Land.The Hague, 18 October 1907.

5) Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or OtherGases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925.

6) Convention on the Prohibition of the Development, Production andStockpiling of Bacteriological (Biological) and Toxin Weapons and on theirDestruction, 10 April 1972.

7) Convention on the Prohibition of Military or Any Other Hostile Use ofEnvironmental Modification Techniques, 10 December 1976.

8) Inhumane Weapons Convention 10 April 1981.

9) Convention on the Prohibition of the Development, Production andStockpiling of Chemical Weapons and on their Destruction, 13 January 1993.

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ProtectionUNIT 3 ENVIRONMENT AND CONFLICT

MANAGEMENT

Structure

3.1 Introduction

3.2 Objectives

3.3 Nature and Scope of Environmental Conflicts

3.4 India and Transboundary Water Conflicts3.4.1 India-China Water Conflict

3.4.2 India-Pakistan Water Conflict

3.4.3 India-Bangaldesh Water Conflict

3.4.4 India-Nepal Water Conflict

3.4.5 Antarctica

3.4.6 Atmospheric Testing

3.4.7 Acid Deposition

3.4.8 Climate Change

3.5 Purpose of Environmental Conflicts Resolution

3.6 Environmental Conflicts: Adjudicatory Mechanisms3.6.1 Permanent Court of Arbitration

3.6.2 International Court of Justice (ICJ)

3.6.3 International Court of Environmental Arbitration and Concilation (ICEAC)

3.7 Summary



3.10 References and Suggested Readings

3.1 INTRODUCTION

In the context of conflicts and relationship between humans and their habitats,we discussed in the preceding units of the nature of environmental rights andeffects of armed conflicts on environment. Before, we proceed any further inthis unit; it is germane to understand the difference between human rights lawand international humanitarian law. Human rights are applicable during allsituations i.e during peace and also in the time of war. They are basic norms to beenforced by the State to safeguard and protect the dignity of individuals at alltimes. International humanitarian law is applicable during international armedconflicts or we may say during war time with an objective to minimise sufferingsof individuals and limiting the methods and means of warfare. The focus of thislecture is on the nature of conflicts and environmental conflicts per se, which infact is a logical continuation to the discussion on armed conflicts and affects onenvironment. International wars have been fought over access to land and watersince time immemorial. Indeed the nexus or relationship between environmentalresources and outbreak of international and domestic conflicts has been recognisedfor decades.

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The purpose of this unit is to introduce the nature and concept of environmentalconflicts with reference to important environmental conflicts of transboundaryor international character. A brief review of some important adjudicatorymechanisms available at the international level like the Permanent Court ofArbitration, International Court of Environmental Arbitration and Conciliationwill be discussed. Introduction about such adjudicatory mechanisms will bepreceded by a prefatory exploration of the reasons to settle environmentalconflicts.

3.2 OBECTIVES


• explain the nature of environmental conflicts — economic exploitation,depletion of natural resources, conflicts around the world, South Asia andIndia with a focus on transboundary water disputes;

• discuss the reasons for settlement of environmental disputes; and

• discuss the available adjudicatory mechanisms available for settlement ofsuch disputes.

3.3 NATURE AND SCOPE OF ENVIRONMENTALCONFLICTS

We are living in an era of industrialisation and rampant urbanisation. One of thepitfalls of this process is exploitation of natural resources leading to resourcescarcity and environmental degradation. These events in turn contribute toenvironmental conflicts that may turn violent on some occasions. Suchenvironmental conflicts could be categorised as conflicts over water and mineralresources, including oil and diamonds and struggle for land and territorial rights.Most importantly, during the second half of the 20th century, focus on depletedand unsustainable uses of natural resources gained momentum with changingsocio economic and political developments. These involve issues associated withthe natural environment and how humans will or will not be allowed to interactwith it. Therefore it is important to understand and explore the values ofinterrelationship between humans, their habitats and natural environment.Axiomatic to this relationship is the debate concerns the extent to whichenvironmental abundance or scarcity contributes to underlying causes of conflict.Throughout history, countries have battled over natural resources. Between 1950and 1976, fishing rights contributed to disputes between England and Iceland inthree Cod Wars, although the disputes were ultimately settled through diplomaticmeans. One natural resource that will be a likely source of major conflict iswater as many of the world’s major rivers and underground aquifers cross nationalboundaries. So far, even in politically tense areas of the world such as the MiddleEast, neighbouring countries have generally succeeded in maintaining agreementsfor the sharing water supplies. However, a number of violent conflicts haveerupted, in part, over the abundance of resources. In several African nations,lucrative mineral resources – oil, diamonds, and other strategically importantminerals – have fueled ongoing conflict. Sierra Leone, Congo, Liberia, and Angolahave all experienced horrific civil wars in recent decades, and a major factor inthose wars has been over diamonds. All four countries have been devastated bywarfare due primarily to predatory governing elites using their control over theresources to enrich themselves and outfit armies used to maintain their command.

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Environment and ConflictManagement3.4 INDIA AND TRANSBOUNDARY WATER

CONFLICTS

It is estimated that by 2025, over half of the world’s inhabitants will be directlyaffected by water scarcity. Most of them will live in either China or India. Conflictover water can be considered at two levels. First, there is the possibility of internalpolitical conflict due to the inability of governments to provide sufficient waterto various dependants. Second, there is the possibility of international or inter-regional conflict over trans-boundary water supplies. The implicit understandingis that countries or regions that already face internal unrest are particularlyvulnerable to resource conflicts. The 2006 UN report, “From water wars to bridgesof cooperation: Exploring the peace-building potential of a shared resource,”details just a small number of these instances.

3.4.1 India-China Water Conflict

China has access to about seven per cent of the world’s water resources, but ishome to around 20 per cent of the global population, while India possesses aroundfour per cent of water resources with only a slightly smaller populace. Bothcountries, along with eight other Asian nations and 47 per cent of the world’speople, are heavily dependent on the Tibetan Plateau for water. Research indicatesthat in the near future, India and China will most likely find themselves confrontedby just such high levels of water stress. Six major Asian river basins begin in theTibetan Plateau — the Indus (India, Pakistan); the Ganges (Nepal, India,Bangladesh); the Brahmaputra (India, Bangladesh); the Salween (China, Burma,Thailand); the Mekong (China, Laos, Thailand, Cambodia, Vietnam); and theYangtze (China). Over 45,000 glaciers seasonally drain into these rivers, butexperts warn that due to global warming they are shrinking at twice the rate ofother glaciers worldwide. This factor, combined with increasing waterconsumption, desertification, rapid industrialisation and pollution, mean thatdemand for the pristine and previously plentiful water of the Tibetan Plateau isincreasing. Yet, it is also drying up. Trans-boundary water supply is developinginto a major, if largely unremarked upon as yet, politico-security issue for Asia’stwo giants. The Chinese Ministry of Water Resources’ 2005 report, “Tibet’s WaterWill Save China,” underscores the strategic importance of Tibet vis-à-vis water.It discusses the controversial South-North Water Transfer Project, which entailsthree man-made rivers channelling water from the Plateau to China’s arid north.This scheme will divert water from the Yarlung Tsangpo, Dadu and Jinsha rivers,which rise in the Plateau, and carry it to the Yellow River (Huang He) to providewater for human consumption, farming and industry. Three diversion routes areinvolved in the project but it is the diversion of the Yarlung Tsangpo that is themost controversial and technologically challenging of the three routes. The riverflows eastwards through southern Tibet before making a spectacular U-turn atits easternmost point, called the Shuomatan Point or the “Great Bend”, just priorto entering India. Here it is joined by two other major rivers and from this pointof confluence it is known as the Brahmaputra. It is also here that China plans todivert water. This diversion will mean that the amount of water in theBrahmaputra will fall significantly, affecting India’s northeast and Bangladesh.It will also severely affect agriculture and fishing due to an increase in watersalinity and silting downstream. India and China have no water-sharing treatyand although they had agreed to set up a joint expert-level mechanism on interstateriver waters.

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Major InternationalEnvironmental Laws-I Self Assessment Question

1) What is South-North Water transfer project?

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3.4.2 India-Pakistan Water Conflict

South Asia is a region with heavy dependence on its rivers to meet its need forfresh water. The primary issue that could trigger a regional crisis could be overthe Indus River that flows into Pakistan from India. Both countries havesystematically brought up the dispute regarding the flow of the Indus River andits tributaries in their bilateral relations. The Indus River water dispute originatesfrom the provision of the Indus Water Treaty (IWT), which came into force in1960. The purpose of the IWT is to end issues regarding the Indus River withina framework of an institutional mechanism. Pakistan further claims that India isdiverting its waters and the construction of hydroelectric dams by India is reducingthe flow of water to Pakistan. Pakistan has been objecting to India’s Kishengangapower project; it claims that this project will divert the waters of the Ganga andwill also lead to a 27 per cent shortage in water in Pakistan.

3.4.3 India-Bangladesh Water Conflict

Similarly India and Bangladesh have disputes over the sharing of the GangesRiver and Bangladesh argues that it does not get a fair share of the Ganga watersor its territory gets flooded during the monsoons because of the release of theexcess waters by India. The Tipaimukh Multipurpose Hydroelectric Dam Projectwhich was commissioned by India in the year 2006, has been in the news recentlyas concerns have been raised by the Bangladesh government as well as civilsociety and environmental groups both in India and Bangladesh, over the impactof the dam on the region. The dam project had been on the drawing board for along time until the project was awarded to North Eastern Electric PowerCorporation (NEEPCO) in 2003, only to be replaced by the state-owned NationalHydro-electric Power Corporation (NHPC) in July 2009 due to the concerns ofthe Manipur state government over NEEPCO. The Tipaimukh Dam is locatednear the confluence of the Barak and the Tuivai rivers in the Tipaimukh sub-division of the Churachandpur district of Manipur. This area is close to theManipur-Mizoram-Assam border, and therefore the project involves the threestates in Northeast India. The Barak river which flows downstream to meet theSurma river system in Bangladesh, is considered to be the lifeline of the Sylhetregion in Bangladesh. There have been intense debates in Bangladesh amongcivil society groups, environmental groups, human rights organisations and mediaover the implications of the Tipaimukh Dam on the share of water coming fromupper-riparian India. The water sharing of trans-boundary rivers between Indiaand Bangladesh had an unpleasant past with the Farakka dispute over sharing ofwaters of the Ganges which is still under negotiation. The Water ResourcesMinister of Bangladesh in 2009 emphasised the need to have negotiations on the

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Environment and ConflictManagement

concerns and issues raised between both countries. Bangladesh has urged Indiato conduct a joint study of the implications that the Tipaimukh Dam would haveon the region and the future flow of water in the concerned river system, whichdirectly affects Bangladesh, being the lower-riparian country.


2) Discuss about Indo-Bangladesh River Conflict?

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3.4.4 India-Nepal Water Conflict

India and Nepal disagree over the agreements on the Mahakali and the KosiRivers. Nepal complains that these are unjust and do not perpetrate an equalsharing of waters between the countries. One of the major problems relating tosharing of waters among the South Asian countries has been the construction oflarge hydro-electric projects which divert shared river waters between countries.In this regard for resolving or managing these conflicts, it has been suggestedthat South Asian Association for Regional Cooperation (SAARC) shouldencourage joint water management solutions like for example hydro-electricprojects and energy exchanges between the countries.

Let me briefly mention the other cases of environmental and resource conflicts.

3.4.5 Antarctica

Systematic exploration and territorial claims on Antarctica extend back to theturn of the century.After World War II these claims expanded and threatened tomilitarise the continent. Meteorology, oceanography, glaciology, and other kindsof environmental research in or near Antarctica figured prominently in the 1957-58. The 1959 Antarctic Treaty, negotiated with U.S. and USSR leadership, callsfor the continued absence of military activities and the suspension of all territorialclaims. For Antarctica, scientific cooperation appears to have eased the way forpolitical cooperation.

3.4.6 Atmospheric Testing

Atmospheric testing of nuclear weapons was a highly visible form of threatbehaviour during the Cold War. Many reinforcing events in the mid-1950s led toconcern about radioactive fallout from the testing. The public most feared thehealth effects of fallout; radioactive elements were, for example, measurable inmilk. The test ban soon became a cause of the nuclear disarmament movement.The succession of large nuclear yield tests that began in the late 1940s and ended,for the most part, in the early 1960s injected much NO

2 into the stratosphere.

The oxides of nitrogen are mainly produced in the fireball, with heating andcooling of the captured air. The largest annual yield of nuclear tests occurred in

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1962, 108 megatons, including two explosions of 30 megatons. The largest yieldwas an explosion in 1961 of 58 megatons. About three-fourths of total yield inthe peak years around 1960 exploded in the atmosphere. The bulk of thesedetonations was in the upper troposphere and stratosphere, but Starfish detonateda yield of 1.4 megatons in the thermosphere at an altitude of 400 km. Altitudematters greatly for NO

2 production calculations. NO

2 absorbs solar radiation,

and its enhanced presence in the stratosphere for a period of two decades couldhave reduced the sunlight reaching the surface by a few percent. Climatologists,in fact, observed a temporary cooling trend in the Northern hemisphere, wherenearly all atomic tests occurred.

Part of the task of making nuclear bombs is performing the calculations ofatmospheric effects, so several environmental scientists worrying about theclimatic and other effects on both sides had ample access to high-level officialsin government and the military. This access, and related trust, probably helpedexpedite the 1963 Limited Test Ban.

3.4.7 Acid Deposition

From the late 1960s, the Scandinavian countries began claiming that the acidityof their rain was increasing and that it was caused by European, especially English,emissions upwind. The acidity allegedly damaged Scandinavian lakes and woods.Beginning in 1972, the Organisation for Economic Cooperation and Development(OECD) conducted a study of long-range transport of air pollutants to assesssuch claims. Similar conflicts and joint study efforts arose between the UnitedStates and Canada in the late 1970s, and peaked, with harsh words but no violence,in the early 1980s.

3.4.8 Climate Change

Global warming induced by greenhouse gases emitted by human activities couldcause conflicts in at least two ways. Erratic, unfavourable weather and climatecould raise pressures for migration, certainly an irritant for some receiving states.In recent years such environmental migrants, have numbered around 10 millionannually. The bulk have been concentrated in a few countries, such as Afghanistan,Ethiopia, and Burundi. Political threats to well-being, violence, and economicsuffering as well as droughts and floods produce refugees. Studies attribute ratherfew refugees directly and solely to environmental disasters and shortages ofresources.

The second way climatic change could cause conflict is through inequitable orapparently inequitable means to reduce carbon emissions, especially from coaland oil. Conflict might arise between the rich, developed countries of the so-called North and those of the poorer South. The South wants to increase its useof carbon and continue exporting it, while the North is ambivalent about curbingits appetite. The idea of “joint implementation”, basically financial transfers fromthe North to the South (and the former Soviet Union) for emission reduction inthe South that might also lower globally the cost of emission restraints, developedunder the auspices of the Intergovernmental Panel on Climatic Change (IPCC),a body of several thousand technical experts. The idea has now moved into thepolitical and diplomatic arena.

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The IPCC originated in volunteer efforts under the auspices of the scientist-controlled Scientific Committee on Problems of the Environment (SCOPE) ofthe non- governmental International Council of Scientific Unions (ICSU) toprovide international equivalents of U.S. National Research Council studies onglobal warming.

3.5 PURPOSE OF ENVIRONMENTAL CONFLICTRESOLUTION

Population explosion and technological advancement led to exploitation ofprecious natural resources. It created preconditions for mass extinction and globalcatastrophe. Environmental problems have no longer remained domestic buthaving become transnational in nature. These problems now demand the collectiveattention of everyone and of all Nations. So in order to facilitate collective actionto mitigate global environmental problems, it is important to overcome religious,cultural disparities or barriers, so as to work together to solve common problems.To do so, we need to create better ways of communicating across borders andimproved techniques for collaboratively negotiating our differences, engagingin open and honest dialogue, and resolving environmental disputes equitablywithout warfare or propaganda. In this genre mediation and alternative disputeresolution (ADR) techniques encourage fair, respectful, participatory, anddemocratic ways of communicating, solving problems, negotiating collaboratively,engaging in constructive dialogues, and resolving conflicts internationally basedon consensus. Without these methods we will be unable to sustainably solve ourproblems or survive, and for these reasons, it is critical that the world’s nationsadopt mediation, ADR and any other techniques for resolving environmentalconflicts.

3.6 ENVIRONMENTAL CONFLICTS:ADJUDICATORY MECHANSIMS

3.6.1 Permanent Court of Arbitration

Established in 1899, the Permanent Court of Arbitration (PCA) resolves disputesamong States, private parties, and intergovernmental organisations througharbitration, conciliation, and fact finding. It claims to be “the first globalmechanism for the settlement of inter-state disputes”. Each Party to the PCA canappoint up to four arbitrators (“Members of the Court”) from the list of arbitratorswith the Court’s roster. When there is a dispute for the PCA to resolve, eachParty appoints two arbitrators from this roster, and the four arbitrators (two fromeach Party) select an umpire. The International Bureau is the PCA’s Secretariat.It assists parties in selecting arbitrators, and performs other legal andadministrative functions.

The PCA has adopted guidelines and model clauses for traditional disputesettlement in environmental treaties. These generally rely upon and build uponprevious case judjments. In 2001, the PCA Administrative Council adoptedOptional Rules for Arbitration of Disputes Relating to the Environment and/orNatural Resources. The Environmental Conciliation Rules, adopted in 2002,complement the earlier rules on arbitration. These Rules were developed by theInternational Bureau and a working group and drafting committee of experts in

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environmental law and arbitration. The PCA also provides guidance on draftingenvironment-related dispute settlement clauses. The Permanent Court ofArbitration has also collaborated with the Convention on Biological Diversity,the Biosafety Protocol, and United Nations Framework Convention on ClimateChange Conference of Parties.

Key features of the Environmental Arbitration Rules are:

• availability for use by any combination and number of parties: States,intergovernmental organisations, non-governmental organisations,multinational corporations, and other private entities where all parties canagree to use them. This was seen as necessary because disputes concerningthe environment often involve multiple parties of mixed origin(governmental/non-governmental, and even commercial). Special attentionwas given to ensuring harmony with existing environmentally relatedagreements so that references to these procedures could be inserted in suchagreements seeking to adopt arbitration rules;

• provisional measures of protection and security focused on mitigating orpreventing serious harm to the environment.

• a roster of government nominated arbitrators, experienced in naturalresources and environmental law, who can make themselves immediatelyavailable to the parties. That panel is nominated by the Member States andthe Secretary-General as the case may be.

• a roster of government nominated experts in environmental science availableto assist either the parties or the tribunal. That panel would be nominated byMember States and the Secretary-General so that parties would haveimmediate access to expert advice.

• confidentiality procedures designed to protect information impacting nationalsecurity, and for commercial parties, intellectual property, trade secrets, andother proprietary information, and where the parties so agree, allowing fora “confidentiality advisor” to view information and report on it, but notreveal it in detail to the party from whom it did not originate nor to thetribunal.

• reduced time-periods as compared to intended to permit a speedy anddynamic response to the issues presented to the tribunal.

Taken together then, the Environmental Arbitration and Conciliation Rules are aconcrete response to the calls issued in Rio Principle 26, asking States to findmeans to “…resolve all their environmental disputes peacefully…”, and RioPrinciple 10 by providing access to justice to “all concerned citizens”. It is nowhoped that States will consider adoption of references to these Rules in multilateralenvironmental agreements as the procedures for arbitration. Indeed, the PCAhas been involved in the negotiations of multilateral environmental agreementswhich foresee, but have not yet adopted such arbitration or conciliationprocedures, such as the United Nations Framework Convention on ClimateChange. Further, these Rules will prove useful in future liability regimes, suchas the one being contemplated under the United Nations Cartagena Protocol onBiosafety. The United Nations Economic Commission for Europe has conveneda working group to draft a Civil Liability Protocol to the 1992 Watercourses and

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1997 Transboundary Effects of Industrial Accidents Conventions, and thatworking group has adopted a reference for private-private arbitration of claimsarising under that Protocol using the PCA Environmental Rules. Partiesnegotiating Bilateral Investment Treaties, Production Sharing Contracts,Emissions Trading Contracts, Bilateral and Regional Environmental Agreements,Liability Conventions, and any agreement relating to natural resources andenvironment should consider a reference to these Rules.


3) What is permanent court of arbitration?

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3.6.2 International Court of Justice (ICJ)

The ICJ is the primary judicial organ of the United Nations. Pursuant to provisionsin various international agreements (including the Statute of the ICJ, the organicdocument establishing the ICJ), the ICJ is charged with resolving various disputesbetween States. States can recognise compulsory jurisdiction of the Court; indoing so, many States exempt certain classes of cases from compulsoryjurisdiction. This partial exemption is controversial but has been upheld. TheICJ can also issue non-binding Advisory Opinions at the request of UN bodies.

There are 15 Members of the Court, who are elected by the UN Member Statesand other States Parties to the Statute of the ICJ. In some instances, Judges Adhoc may sit on an ICJ panel to hear and decide a case. Pursuant to Article 38 ofthe ICJ Statute, the Court may consider a variety of legal sources in decidingcases:

• international conventions, whether general or particular, establishing rulesexpressly recognised by the contesting states;

• international custom, as evidence of a general practice accepted as law;

• the general principles of law recognised by civilized nations;

• subject to the provisions of Article 59, judicial decisions and the teachingsof the most highly qualified publicists of the various nations, as subsidiarymeans for the determination of rules of law.

Recognising the rapid growth of international environmental law and the growingnumber of international cases that touched on environmental matters, the ICJestablished a specialised Chamber for Environmental Matters in July 1993. TheChamber consists of a panel of seven ICJ judges. The Chamber is empowered tohear environmental cases only with the consent of the parties to the case. As apractical matter, though, the ICJ’s environmental cases generally proceed throughthe standard ICJ process, and have yet to take advantage of the specialisedChamber.

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3.6.3 International Court of Environmental Arbitration andConciliation (ICEAC)

The International Court of Environmental Arbitration and Conciliation (ICEAC)facilitates the settlement of environmental disputes submitted by States, naturalpersons, or legal persons through conciliation and arbitration. It was establishedin 1994 in Mexico by 28 lawyers from 22 different States.

Upon request, the Court may give Consultative Opinions relating to disputesand other issues of environmental law. Consultative Opinions may be:

• Preventive, to ascertain whether a proposed action is compatible withenvironmental law;

• Confirmatory, to confirm that an action has been carried out in compliancewith environmental law; or

• Denunciatory, to enquire whether an action by another person complies withenvironmental law, and if not to make that information available to theinternational community.

For example, in 2003, the Court issued a Consultative Opinion on theCompatibility between Certain Provisions of the Convention on BiologicalDiversity and the Agreement on Trade Related Aspects of Intellectual PropertyRights as to the Protection of Traditional Knowledge. Other Consultative Opinionsrelate to “Regulation of Fishing Methods and Gear”, “Protection of the MeridianFrog”, and the transportation and disposal of waste and dangerous substances inSonora, Mexico.

In resolving disputes and in issuing Consultative Opinions, the Court invokesand applies a range of bodies of law, including:

• international treaties and applicable private contracts;

• general rules and principles of international environmental law;

• relevant national law, in accordance with generally accepted rules of privateinternational law; and

• any other principles, rules, or standards that the Court deems relevant,including equity.

3.7 SUMMARY

• With human population increasing and natural resources dwindling, conflictsover environmental issues continue to rise in frequency and intensity. Withgrowing emphasis on environmental issues of international concern, thereis need for building consensus among competing stakeholders and interests.Political commitment to tenets of democracy and good governance are crucialfor sustainable management of natural resources. A conflict impactassessment in exploration of natural resources is important is often animportant starting point. Countries should include the basic developmentcooperation policy for achieving coherence and to de-escalate the violenceover natural resources. Crisis prevention and conflict management arerelevant not only to government bodies but also to private actors. Groups incivil society originating from conflict areas are of prime importance because

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they are very familiar with regional conditions, they are often well acceptedand they are able to ensure long-term involvement. Non-governmentalorganisations (NGOs) operating at international level are also importantactors. Growing attention is being paid to the importance of local andinternational private enterprises for conflict situations.

3.8 TERMINAL QUESTIONS1) Explain the nature of environmental around the world?

2) Discuss transboundary water disputes in India and South Asia.

3) Explain the importance for settlement of environmental disputes.

4) Discuss the available adjudicatory mechanisms available for settlement ofsuch disputes with specific reference to the Permanent Court of Arbitration.

3.9 ANSWERS AND HINTS

Self Assessment Questions

1) Refer to Section 3.4



Terminal Questions

1) We are living in an era of industrialisation and rampant urbanisation. Oneof the pitfalls of this process is exploitation of natural resources leading toresource scarcity and environmental degradation. These events in turncontribute to environmental conflicts that may turn violent on someoccasions. Such environmental conflicts could be categorised as conflictsover water and mineral resources, including oil and diamonds and strugglefor land and territorial rights. Most importantly, during the second half ofthe 20th century, focus on depleted and unsustainable uses of naturalresources gained momentum with changing socio economic and politicaldevelopments. These involve issues associated with the natural environmentand how humans will or will not be allowed to interact with it. Thereforeit is important to understand and explore the values of interrelationshipbetween humans, their habitats and natural environment. Axiomatic to thisrelationship is the debate concerns the extent to which environmentalabundance or scarcity contributes to underlying causes of conflict.Throughout history, countries have battled over natural resources. Between1950 and 1976, fishing rights contributed to disputes between Englandand Iceland in three Cod Wars, although the disputes were ultimately settledthrough diplomatic means. One natural resource that will be a likely sourceof major conflict is water as many of the world’s major rivers andunderground aquifers cross national boundaries. So far, even in politicallytense areas of the world such as the Middle East, neighbouring countrieshave generally succeeded in maintaining agreements for the sharing watersupplies. However, a number of violent conflicts have erupted, in part,

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over the abundance of resources. In several African nations, lucrativemineral resources – oil, diamonds, and other strategically importantminerals – have fueled ongoing conflict. Sierra Leone, Congo, Liberia,and Angola have all experienced horrific civil wars in recent decades, anda major factor in those wars has been over diamonds. All four countrieshave been devastated by warfare due primarily to predatory governingelites using their control over the resources to enrich themselves and outfitarmies used to maintain their command.

2) It is estimated that by 2025, over half of the world’s inhabitants will bedirectly affected by water scarcity. Most of them will live in either Chinaor India. Conflict over water can be considered at two levels. First, there isthe possibility of internal political conflict due to the inability ofgovernments to provide sufficient water to various dependants. Second,there is the possibility of international or inter-regional conflict over trans-boundary water supplies. The implicit understanding is that countries orregions that already face internal unrest are particularly vulnerable toresource conflicts. The 2006 UN report, “From water wars to bridges ofcooperation: Exploring the peace-building potential of a shared resource,”details just a small number of these instances.

Further Explain the following:India-China Water ConflictIndia-Pakistan Water ConflictIndia-Bangladesh Water ConflictIndia-Nepal Water Conflict

3) Population explosion and technological advancement led to exploitationof precious natural resources. It created preconditions for mass extinctionand global catastrophe. Environmental problems have no longer remaineddomestic but having become transnational in nature. These problems nowdemand the collective attention of everyone and of all Nations. So in orderto facilitate collective action to mitigate global environmental problems, itis important to overcome religious, cultural disparities or barriers, so as towork together to solve common problems. To do so, we need to createbetter ways of communicating across borders and improved techniquesfor collaboratively negotiating our differences, engaging in open and honestdialogue, and resolving environmental disputes equitably without warfareor propaganda. In this genre mediation and alternative dispute resolution(ADR) techniques encourage fair, respectful, participatory, and democraticways of communicating, solving problems, negotiating collaboratively,engaging in constructive dialogues, and resolving conflicts internationallybased on consensus. Without these methods we will be unable to sustainablysolve our problems or survive, and for these reasons, it is critical that theworld’s nations adopt mediation, ADR and any other techniques forresolving environmental conflicts.

4) Explain the ad judicatory mechanisms in detailPermanent Court of ArbitrationInternational Court of JusticeICEAC

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Environment and ConflictManagement3.10 REFERENCES AND SUGGESTED READINGS

1) Adler, Peter. “Science, Politics, and Problem Solving: Principles andPractices for the Resolution of Environmental Disputes in the Midst ofAdvancing Technology, Uncertain and Changing Science, and Volatile PublicPerceptions.” Penn State Environmental Law Review 10(2) (Spring, 2002):323-342.

2) Dukes, E. Franklin. “What We Know about Environmental ConflictResolution: An Analysis Based on Research.” Conflict Resolution Quarterly22(1-2) (Fall-Winter 2004): 191-220.

mle-023 international environmental law and policy

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