Armed conflict and the military in international environmental law 

This article will be published in the first issue of the forthcoming publication series The Conservation & Livelihoods Digest at the end of March 2022. But due to the actuality of events, this pre-publication is now made available.

The article is also available as an automated podcast.

Introduction

The recent Russian invasion of the Ukraine has sparked fears of a new, Europe-wide war. Russia’s President Vladimir Putin has shown that he is determined to expand his hegemonial influence even by military intervention. While Germany, the United States and France, amongst others, have sought to use all diplomatic options, at the time of writing in late February 2022, these attempts have failed. 

While not going into the reasons for this conflict it is nevertheless necessary to reconsider the costs of war: apart from the human toll of every armed conflict, there are socio-cultural and political repercussions that come as a result. But what is often much less considered are the environmental costs of military action and armed conflict. For instance, a study from 2018 has found that from 1946—2010, armed conflict was raging in 71% of protected areas in Africa, contributing to severe declines in animal populations (Daskin & Pringle, 2018). 

Impacts of the military or armed conflict on the environment

There are numerous examples of the way the military or any armed conflict has impacted the environment and human beings either directly or in the aftermath. The nuclear bombs on Hiroshima and Nagasaki towards the end of World War II, the use of Agent Orange, a defoliator, by the USA in Viet Nam, or the burning of the oil wells by the Iraqi government during the first Gulf War are but a few examples of deliberate damage to the environment for military purposes.

While armed conflict has immeasurable negative impacts on people, animals and the environment, there are essentially three types of manipulations to the environment which are relevant both in peace time as well as during times of armed conflict (see Westing, 2009):

  1. Unintentional manipulations are manipulations to the environment that occur because of the mere existence of the military. For instance, tank tracks that destroy natural habitats, emissions from warships, improperly cleared munitions after manoeuvres or the construction of base camps or other fortifications may negatively impact the natural environment. Extremely harmful to both humans and the environment are furthermore abandoned land or sea mines, chemicals from which contaminate soil, sea- and ground water, or remains of chemical weapons (e.g. Neimanis, 2020).
  2. Intentional manipulations are planned manipulations of the environment in order to harm the enemy. The use of Agent Orange to expose the Ho-Chi-Minh-Trail, the poisoning of rivers or the intentional setting afire of oil wells are examples in this regard. The goal is to weaken the enemy through precise alterations of the natural environment. 
  3. Intentional manipulations to release dangerous forces are manipulations that aim to destroy facilities with a high destructive potential, such dams or nuclear facilities. While these may not aim directly at environmental features, their environmental effects can be catastrophic. 

While these manipulations embody the entire purpose of the military — arguably to destroy — both armed conflict and military areas may even contribute to environmental protection, albeit temporary. For instance, during times of armed conflict, certain animal species may not be hunted. During the First and Second World Wars, for example, sealing and whaling respectively declined and seal and whale numbers increased again due to hunting vessels having been called into service or because of the danger at sea. In other words, fewer seals or whales were killed, allowing the populations to rebound. But additionally, military areas that have been set aside or buffer zones between active duty sites and other land or sea areas can serve as de facto protection areas of biodiversity — while not designated as such, due to their limited use, biodiversity may be blooming. These sites, along with other de facto conservation sites have been recognised by the Convention on Biological Diversity as ‘other effective area-based conservation measures’ (OECMs) (Jonas, Barbuto, Jonas, Kothari & Nelson, 2014). This means that even though military impacts on the environment are, generally speaking, negative, there are examples of positive outcomes as well. 

Environmental protection against national security?

In the 20th century, it is estimated that around 50 cents of every dollar was spent on the military (Gould, 2007). The Stockholm International Peace Research Institute (SIPRI) furthermore concludes that in the United States alone in the year 2020 alone 789 billion US dollars were spent on the military compared to 378 billion dollars for the whole of Europe (SIPRI, 2021). What this means is that military expenditures eat up tax monies which are direly needed elsewhere, for instance in the health or educational sectors. But what this also means is that it is that sector which acts relatively unimpeded by national and international environmental legislation. While, for example, in the United States strict environmental legislation exists that are relevant and legally binding for all sectors of US society, the military has time and again challenged these regulatory regimes based on the argument that they impede on the military’s combat abilities and thus on national security. 

In the US, several regulations exist that could potentially prevent the military to carry out its activities in the name of environmental protection. Most importantly, the National Environmental Policy Act (NEPA) whose intention is that all government actions and federal decision-making are to be based on environmental awareness; the Marine Mammal Protection Act (MMPA), which aims to put strict protection for marine mammals in place; the Endangered Species Act (EPA), aiming to protect species that have been identified as vulnerable or endangered; or the Coastal Zone Management Act (CZMA) which has established a framework for states to manage their coastal resources. 

In 2008, NEPA, EPA and CZMA were therefore used by several environmental groups, but first and foremost the Nation Resources Defense Council (NRDC) as the main plaintiff, as the legal basis to challenge the US Navy’s mid-range sonar exercises off the coast of California, arguing that these exercises would harm marine mammals. The Navy, however, published its own environmental impact assessment one year before and noted in a press release that while there are impacts on marine mammals, it had put 29 mitigation measures in place that would prevent marine mammals from experiencing harm (Noel, 2007). 

Given that the Navy had found that there has been harm done to marine mammals, the District Court of Central California ruled that it had acted in violation of NEPA and CZMA and halted the exercises. In its appear before the Ninth Circuit Court of Appeals, the Navy achieved that the injunction was put aside, but not yet fully rejected. A few months later, in November 2007, the Ninth Court supported the ruling by the District Court and the Navy was once again prohibited from carrying out its exercises unless certain mitigation measures were to be taken.

The case was finally brought before the US Supreme Court in Winter v. National Resources Defence Council in 2008.In its ruling the Supreme Court supported the Navy in so far as it considered the ability of the Navy to conduct measures against enemy submarines to be of higher value for the public interest than potential harm to an unknown number of marine mammals. In other words, environmental harm had to subdue to national security (Alexander, 2009). 

International environmental law’s consideration of the military

The ruling by the Supreme Court appears to be rather surprising given the documented harm of mid-frequency sonar exercises on marine mammals, as even the Navy itself found. But when looking into international environmental agreements, the ruling does fit rather well, even though international environmental regimes have never properly spelled out the exemptions they grant for the military and other matters of national security. 

The 1971 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat is an interesting case in that regard. While the convention itself aims to establish wetlands along with their ‘wise use’ and with certain obligations for its now 172 parties, already in article 2.5. any obligations, i.e. any designated wetlands in a party’s territory may be deleted “because of its urgent national interests”. This means in practice that it is up to the party to determine whether other interests prevail over those of environmental protection. The designation of military bases or exercising areas could therefore fall into this category. 

Also the Convention on Conservation of Migratory Species of Wild Animals (Bonn Convention) uses a similar way of granting states the right not to stick to a convention’s obligations. Functioning with two Appendices under which species either experience full protection (Appendix I) or for which separate Agreements are to be concluded (Appendix II), article III.5 lists four exceptions to the full protection of an Appendix I-listed species. One of these, stipulated in article III.5. (d) is when “extraordinary circumstances so require.” It is nowhere defined what these ‘extraordinary circumstances’ are.  

Probably the most outspoken regime in regard to environmental protection and the military is the UN Convention on the Law of the Sea (UNCLOS) of 1982. Also regarded as the ‘Constitution of the Oceans’ (e.g. Pollock, 1977) the UNCLOS is one of the most comprehensive legal regime ever concluded under the umbrella of the United Nations. Whilst touching upon countless issues pertaining to ocean governance and use, it also includes several provisions on the protection of the marine environment, and in particular marine mammals (see e.g. Churchill & Lowe, 1999). However, UNCLOS article 236 clearly states: 

The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service. However, each State shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a a manner consistent, so far as is reasonable and practicable, with this Convention. (own emphasis).   

Photo by Joseph Fuller on Pexels.com

With this in mind one might argue that UNCLOS has taken up the zeitgeist of the 1970s when excluding military vessels, but has also paved the way for their future exclusion from measures to protect the marine environment. While that may be so, however, some states have voluntarily agreed to make conventions that exclude military facilities or vessels applicable anyway (Birnie, Boyle & Redgwell, 2009, p. 207). Despite the fact that there are numerous conventions dealing with the protection of the marine environment, e.g. related to oil pollution, dumping or salvage, UNCLOS manifests the fact that neither of these conventions is applicable to military vessels. At the same time, most international environmental agreements contain clauses such as ‘as appropriate’ or ‘as practicable’. Even though an agreement might be legally binding, such as the Convention on Biological Diversity, such additions weaken its application significantly as any state could argue that the measures prescribed by the convention in question are indeed ‘not appropriate’ (Gillespie, 2011, pp. 260—262). For military purposes, this leaves states significant leeway.

While international environmental agreements that aim at the conservation of the natural environment contain these clauses, in 1976 the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques was adopted as a means of global disarmament. The Convention has a membership of 78 parties, including countries such as China, the Russian Federation and the United States. As stipulated in article I.1, 

“Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.”

While here the protection of the environment is not the key purpose, but rather the protection of the environment in order to safeguard human welfare, it is nevertheless of importance when taking into account the three main factors of military environmental impact, as stipulated above. Especially intentional destruction of elements of the natural environment are to be avoided by this treaty.

Similarly, the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction aims to steer its 164 parties never to use, produce or disseminate land and other mines. While, again, the main aim of the convention is the protection of human wellbeing, it nevertheless briefly touches upon environmental dimensions of mined areas when states are forced to postpone clean-up activities (see article 5.4. (c)). However, just because this treaty has human wellbeing at its core, successful implementation would inevitably have positive side effects for the environment. Unfortunately, neither China, the Russian Federation nor the United States are parties to the treaty. In fact, while the Clinton administration has called for an end of the use of land mines and the Obama administration has largely banned their use, the United States have never ratified the treaty. In January 2020, then-President Trump lifted the Obama-imposed ban on their use for the sake of national security (Dwyer, 2020).  

This step, however, stands in stark contrast to the 1977 Additional Protocol I to the 1949 Geneva Conventions. In this Additional Protocol I, some reference is made to the natural environment. Article 35.3 thus stipulates that “[i]t is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” Article 54.2 addresses intentional manipulations to the environment, also in order to release dangerous forces. The article thus reads:

It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.” 

And lastly, article 55 addresses the ‘Protection of the Natural Environment’ en gros:

” 1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited.

Additional Protocol I to the Geneva Conventions therefore constitutes a crucial and legally-binding instruments that can serve as a reference when environmentally destructive acts are being carried out during warfare. While the Additional Protocol I currently has 173 parties, the United States and the Russian Federation are not party to it: while the US has never joined, in 2019 the Russian Federation formally withdrew from the Protocol by nullifying the declaration made by the Soviet Union in 1977. Putin is cited to give this reason for the withdrawal from the Protocol: “In the current international environment, the risks of the commission’s power abuse by the states, which are acting in bad faith, are increasing significantly” (Nikolsky, 2019).

Conclusion

The above shows that the legal framework for the military in peace times as well as during armed conflict as regards environmental protection is sketchy at best. While there are some instruments and provisions that would allow for legal action against a government, the domestic example from the United States has shown that even though there might be good legal cause, matters of national security may easily prevail over matter of environmental concern. The fact that those countries with the largest armies in the world, the US, China and Russia, are not party to some of the key agreements tells a specific story. Also the fact that under international environmental law states have the possibility to act along lines of ‘appropriateness’ leaves important gaps in the actual implementation of provisions for environmental protection. 

In how far Russia’s withdrawal from the Additional Protocol I of the Geneva Conventions may have been part and parcel of the long-term strategy concerning Ukraine cannot be ascertained. But apart from the human suffering that will come with military action, animals, plants and entire ecosystems suffer greatly during and after armed conflict — oftentimes for years and decades to come. 

References

Alexander, K. (2009). Whales and sonar: environmental exemptions for the Navy’s mid-frequency active sonar training. Congressional Research Service. https://sgp.fas.org/crs/weapons/RL34403.pdf 

Birnie, P., A. Boyle & C. Redgwell. (2009). International law and the environment. Third edition. Oxford: Oxford University Press. 

Churchill, R.R. & A.V. Lowe. (1999). The law of the sea. Third edition. Manchester: Manchester University Press. 

Daskin, J.H. & R.M. Pringle. (2018). Warfare and wildlife declines in Africa’s protected areas. Nature 553, pp. 328—332. 

Dwyer, C. (31 January 2020). Trump Administration Loosens Obama-Era Restrictions On Land Mine Use. NPR. https://www.npr.org/2020/01/31/801632498/trump-administration-loosens-obama-era-restrictions-on-land-mine-use?t=1645598452295.  

Gillespie, A. (2011). Conservation, biodiversity and international law. Cheltenham: Edward Elgar. 

Gould, K.A. (2007). The ecological costs of militarization. Peace Review: A Journal of Social Justice 19(3), pp. 331—334. 

Jonas, H.D., V. Barbuto, H.C. Jonas, A. Kothari & F. Nelson. (2014). New steps of change: Looking beyond protected areas to consider other effective area-based conservation measures. Parks 20(2), pp. 111—128.  

Neimanis, A. (2020). Held in suspense. Mustard gas legalities in the Gotland Deep. In I. Braverman & E.R. Johnson (Eds.). Blue legalities. The life and laws of the sea (pp. 45—62). Durham & London: Duke University Press.

Nikolsky, A. (17 October 2019). Putin revokes additional protocol to Geneva Conventions related to protection of war crimes victims. The Globe and Mail. https://www.theglobeandmail.com/world/article-putin-revokes-additional-protocol-to-geneva-conventions-related-to/

Noel, K. (19 December 2007). Navy Invests in Protecting Marine Mammals. Defense Visual Information Distribution Service. https://www.dvidshub.net/news/14848/navy-invests-protecting-marine-mammals

Pollock, H.W. (1977). The law of the sea conference: Drafting a constitutions for the oceans of the world. Geophysics 42(4), pp. 890—896.

SIPRI. (2021). Military expenditure by region. https://sipri.org/sites/default/files/Data%20for%20world%20regions%20from%201988–2020%20%28pdf%29.pdf

Westing, A.H. (2009). Environmental and ecological consequences of war. In K.W. Hipel (Ed.). Encyclopedia of Life Support Systems. Vol. II — Conflict Resolution (pp. 312—324). Geneva: UNESCO.

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