State Responsibility for Environmental Protection during International Armed Conflict

environmental damage;armed conflict;state responsibility;wartime environmental protection

Afriansyah, Arie ; Wheen, Nicola ; Warnock, Ceri ; Smith, Stephen

University of Otago

关键词: environmental damage;    armed conflict;    state responsibility;    wartime environmental protection;   

Others  :  https://ourarchive.otago.ac.nz/bitstream/10523/4046/3/AfriansyahArie2013PhD.pdf

美国|英语

来源: Otago University Research Archive

【 摘 要 】

This thesis is a legal and historical examination of the implementation of international responsibility for environmental protection in times of war. It focuses on inter-state armed conflicts in the last two centuries. Based on the analysis of existing international rules and state practice in the aftermath of armed conflicts, it concludes that the implementation of belligerent states’ responsibility for making reparation for environmental damage has been severely limited. It is argued that the main problem is neither an inadequacy of the law for protecting the environment during times of war, nor the absence of the law on state responsibility for reparations of violations of established rules. On the contrary, it is proposed that the existence of such laws does not deter belligerents from causing severe damage to the environment. It is arguable that such situation is greatly influenced by the fact that the international community, represented by the United Nations Security Council (UNSC), has failed to consistently and effectively enforce the applicable international rules – particularly those which hold the offending states responsible for making reparation. In this context, this thesis examines all relevant legal protection for the environment during armed conflict. It argues that international rules are adequate for protecting the environment during armed conflict. Such rules are not only sourced from the law of war, but also from a number of relevant peacetime international rules which remain valid among belligerents during times of conflict. This thesis also examines the laws of international responsibility. These laws regulate how three possible types of actors (states, international organisations, and individuals) may be held responsible for any unlawful damage (including to the environment) caused during armed conflict. Accordingly, to achieve maximum reparation for wartime environmental damage, holding a state responsible is preferable to allocating responsibility to international organisations or individuals. Unfortunately, despite the existence of rules protecting the environment, it is found that in the last two centuries, belligerents have continued to engage in unlawful conduct causing severe environmental damage during numerous notable armed conflicts including World War I, World War II, the Vietnam War, the Iran-Iraq War, the Gulf War, the Kosovo War, the Iraq War, and the Israel-Lebanon War. Further, there has been limited enforcement of state responsibility for environmental damage in the aftermath of these wars. Most of the existing post-conflict settlements fit squarely within a paradigm of victor’s justice. It is argued that such a situation has incentivised (or at least not dis-incentivised) belligerents to continue causing severe environmental damage. This is because a belligerent state seems to be able to avoid responsibility for environmental reparation if it can secure a victory in an armed conflict or manage to preserve its political power in international relations. In order to improve current and future conditions for protecting the environment during armed conflict, it is argued that relevant international rules need to have a deterrent effect to discourage future belligerent states from causing severe environmental damage. This effect could be realized by allocating state international responsibility effectively with a transparent and fair mechanism. To achieve this goal, the reporting process of the UNSC, a forum where violations of international law and allocations of responsibility will be addressed, need to be modified. Such modification aims to make the UNSC’s reporting process more transparent and to afford due process by involving fact-finding missions conducted both by an independent mission established by the UNSC and by belligerent parties. With this more robust reporting procedure, it is expected that the UNSC will be able to allocate responsibility to the appropriate belligerent(s) in accordance to the extent of real damage that they have caused.