Jus Post Bellum Symposium: The Norm of Environmental Integrity in Post-Conflict Legal Regimes

[Cymie R. Payne is Assistant Professor in the Department of Human Ecology at Rutgers University and the School of Law – Camden.]

In my contribution to Jus Post Bellum: Mapping the Normative Foundations, I claim that:

• Existing treaty law prohibits some infliction of environmental damage, but only if it is “widespread, long-term and/or severe.”
• There is evidence of state practice recognizing the importance of environmental integrity through rules of engagement and both formal and informal reparations.
• There is also evidence of a normative belief in the right to environmental integrity and the obligation to respect that right during armed conflict.
• Current scientific knowledge about the interactions of human and natural systems indicates that, even from a utilitarian and anthropocentric perspective, environmental impacts—even those of limited scope—can have serious consequences.
• Consequently, the doctrinal law of armed conflict needs to be reviewed and modernized in light of scientific information about coupled human-environment systems, state practice, and widely held normative views regarding the environment.
• Theories of jus post bellum that prioritize peacebuilding are more consistent with environmental integrity than retributive approaches.
• Jus post bellum theory raises important questions about interventions in a defeated state in the name of environmental integrity, such as the restoration of Iraq’s marshlands or de-mining and safe disposal of the ordnance and other remnants of war.
• Jus post bellum includes obligations and rights of the international community, as some aspects of the affected environment are the concern of humankind, not just the belligerents.

Carsten Stahn proposes jus post bellum as a body of legal rules and principles applicable after conflict to guide decisions in a transitional period. In this light, theories that prioritize peacebuilding over retribution accord best with environmental integrity. Indeed, the environment has been a source of innovation where it has been addressed seriously as a matter of jus post bellum, notably in the work of the UNCC and the UN Environment Programme (UNEP), discussed in the chapter. For example, formal environmental reparations have provided means for reconstruction, created a record of what happened, and may provide disincentive for repetition of unlawful acts. Other post-conflict practices that scholars of the jus post bellum could profitably study are environmental reconstruction and restoration efforts and ex gratia compensation payments, analyzing to what extent donors are motivated by legal norms of obligation, environmental solidarity, or the environment as a common concern of humankind.

The principle of environmental integrity that is at the heart of my argument is both easily understood and deeply ambiguous. I choose the term “environmental integrity” to characterize the principle because it, along with “ecological integrity,” is widely used in natural and social sciences where it generally refers to complete and intact natural system processes. It is also intuitively meaningful. In my proposed definition, it represents an obligation owed to the international community by states and individuals, belligerents, civilians, and peacekeepers. Its legal roots are in principles of human rights, public trust and just war. The International Court of Justice has recognized the environment as an “essential interest” of states in its Gabčíkovo-Nagymaros case, and in the Nuclear Weapons Advisory Opinion it described it as the “living space of[ … ] human beings.” The “no harm” principle accepted as customary international law implies environmental integrity as a complementary principle.

Ambiguity arises as to exactly what “environmental integrity” means. I argue that it should be understood primarily with reference to ecosystem function where that is in tension with cultural, political or economic definitions. Nonetheless, in the “Anthropocene era” it is difficult to identify a natural state since humans have affected almost every planetary system. In the post-conflict period, reparations programs have the problem of applying the Factory at Chorzów rule to “reestablish the situation which would, in all probability, have existed if that act had not been committed,” because it is often impossible to restore the pre-existing ecosystem functions even if it is possible to restore different ones. The resulting ambiguity is a subject for my current research.

The environmental integrity principle is needed because the scope of the environmental concern expressed in treaties is too restricted, incomplete, inadequately integrated into military activities, and too rarely enforced. Although both the NATO bombing of the Former Yugoslavia and Iraq’s invasion, occupation and retreat from Kuwait caused acknowledged environmental damage, legal experts have advised that neither reached the threshold of Additional Protocol I to the 1949 Geneva Conventions, Convention on Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), and the Rome Statute for the International Criminal Court, which all use “widespread, long-term and/or severe” as the threshold condition for prohibited environmental harm.

Though ultimately adopted in the treaty, this phrase was widely criticized during the ENMOD negotiations, one delegation stating that “[i]t was alarming that the use of such monstrous techniques could be legitimized provided their effects were not ‘widespread’, which was defined by the co-sponsors as covering several hundred square kilometres, or ‘long-lasting’, defined as having a duration of several months or about a season, especially since in the assessment of such effects there would always be a large subjective element.” The UN Environment Programme (UNEP) has criticized it as both too stringent and too imprecise; the ICRC would also apply a different standard. The UN Compensation Commission, operating under Security Council Resolution 687 and in a context where the respondent was not a party to the treaties, declined to apply “widespread, long-term and/or severe” as a threshold in its claims review and eventual award of over US$5 billion for environmental reparations.

The environment is often seen as the background to the fighting and its human tragedies—we see little in the news about toxic effects of chemical weapons on soil and water, killing of wildlife (including gorillas and elephants), oil spills, destroyed landscapes or felled forests in Syria, Afghanistan, Iraq or the Democratic Republic of the Congo. Yet environmental integrity is an essential part of breaking cycles of conflict, restoring societies and reestablishing the rule of law.