| J THE ENVIRONMENTAL CONSEQUENCES OF WAR Legal, Economic, and Scientific Perspectives EDITED BY JAY E. AUSTIN AND CARL E. BRUCHPUBLISHED BY THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE ‘The Pitt Building, Trumpington Street, Cambridge, United Kingdom CAMBRIDGE UNIVERSITY PRESS ‘The Edinburgh Building, Cambridge cn22Ru,UK _www.cup.cam.ac.uk ‘40 West 20th Street, New York, NY 10011-4211, USA _ www.cup.org 10 Stamford Road, Oakleigh, Melbourne 3166, Australia Ruiz de Alarcén 13, 28014 Madrid, Spain @ Environmental Law Institute 2000 ‘This bookiis in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, ‘no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2000 Printed in the United Kingdom at the University Press, Cambridge — Typeface 10.5/13.5ptMinion [cc] A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication data ‘The environmental consequences of war: legal, economic, and scientific perspectives! Jay E. Austin & Carl E, Bruch, editors. p.m ISBN 0 521 78020 9 (hb) 1. War (International law) 2. Environmental law, International. I. Austin, Jay. Tl. Bruch, Carl (Carl E.), 1967- KZ6385.E58 2000 341.6—de21 99-087919 ISBN 0521780209 hardback “fetnen K2 C38S 6 S8 2000 CONTENTS List of illustrations List of tables List of contributors Acknowledgements Foreword by Klaus Toepfer Introduction JAY E, AUSTIN AND CARL E. BRUCH PartI - General principles Introduction CARL E. BRUCH ‘The environment in wartime: an overview CHRISTOPHER D. STONE Part II - The legal framework A + Existing and emerging wartime standards Introduction CARL E. BRUCH ‘The law of war and environmental damage ADAM ROBERTS War and the environment: fault lines in the prescriptive landscape MICHAEL N. SCHMITT 13 16 39 47 87CARL E. BRUCH poses the possibility that the UN General Assembly could adopt a resolu- tion generalizing the principles under which Iraq was held liable for its actions in Kuwait (particularly those causing environmental damage), thus removing the taint of victor’s justice. Reflecting his long-standing criticism over the usefulness of such an initiative, Roberts articulates many problems with the call for a broad new convention, among them that existing law is not as lacking as many commentators assert and that such a convention could distract attention and resources from the need to address specific issues. Still, Falk maintains that members of the international community should consider “that which seems necessary rather than content themselves with what they deem possible, especially if the possible shows little sign of adequacy.” Taking the chapters in this section together, a picture emerges of a patchwork of law-of-war, humanitarian, and environmental norms that have developed in response to particular crises: the transition to modern warfare that shocked the public conscience, poison gas in World War I, indiscriminate targeting of civilian areas in World War II, and defoliation and alleged weather manipulation in the Vietnam War. Although the 1990-91 Gulf War has yet to yield new norms, the wholesale environ- mental destruction in Kuwait has caused the international community to reconsider the old norms, forced national militaries to take the topic seriously, and may yet lead to practical norms through the remedia- tion and compensation mechanism of the United Nations Compensation Commission. In most cases, environmental protection has been incidental to human- itarian concerns, and the present attempts to elicit environmental norms from general principles of humanity rest on uncertain ground, Those who contend that the existing norms are sufficient focus their attention on implementation, such as the ongoing incorporation of environmental norms into military handbooks. On the other hand, reformers call for clarification and crystallization of the norms through initiatives to build international consensus. In the end, both informal and formal efforts face the political challenge of convincing nations to accept further limitations on the way they conduct war, as well as the increasingly important chal- lenge of limiting how nations conduct military actions within their own borders and during peacetime. 2 THE LAW OF WAR AND ENVIRONMENTAL DAMA‘ ADAM ROBERTS The central question addressed here is simple. Are international provisions that could restrict environmental damage from military o tions adequate? The focus is mainly on the law of war, otherwise knov “international humanitarian law” — a body of law that is applicable i first place to international wars between states. However, the chapter touches briefly on: (1) international legal restraints on environm damage in other situations, including civil wars and UN-authorized 0} tions; and (2) some other international legal restraints on environm damage in war, especially those embodied in arms control agreement This chapter argues that existing legal restraints affecting the imp war on the environment are far more extensive than may at first ap They encompass many provisions that — while having as their pri purpose safeguarding people from injury and property from wa destruction — do in fact also provide a basis for preserving the env ment. Extensive as such legal restraints are, there is no claim that the complete. In particular, this chapter is a plea to abandon the assumption, ma. some lawyers and others, that those very few provisions in the law o that actually use the word “environment” can be viewed as the center of legal protection of the environment in war. As will become appa such an approach is deficient, because the provisions in question apply in very exceptional circumstances, and in any case they are in tre by which fewer states are bound than are bound by certain other rek treaties, especially the 1949 Geneva Conventions. Every cause needs to be protected against its own zealots. It may bea take to try to prioritize protection of the environment over other i 47