Chris Jenks of SMU Dedman School of Law was invited to discuss “Protection of the Environment: An Operational Perspective” at the United Nations in New York City Oct. 24. This is his second of two blogs; for his first one, go here.
I was at the United Nations in New York City to participate in a seminar on protecting the environment during armed conflict. The seminar’s sponsors included the permanent missions to the United Nations of Sweden, Denmark, Finland, Iceland and Norway, as well as Rutgers University’s International Union for Conversation of Nature World Commission on Environmental Law.
The Nordic countries are very interested in a host of environmental issues, depending on what you mean by “environment.” As I learned, defining what seems like a basic term is not so easy. (While the Nordic countries are very progressive in a number of environmental areas, in others, notably whaling, several of them are decidedly less so.)
In addition to the Nordic countries’ general interest in the environment, the International Law Commission included protection of the environment in relation to armed conflict in its program of work in 2013. As I mentioned in the first blog, the ILC is an offshoot of the General Assembly’s Sixth Committee, which deals with legal matters.
The ILC appointed Dr. Marie Jacobsson, the principal legal adviser on international law at the Swedish Ministry of Foreign Affairs, to facilitate the ILC’s work. Dr. Jacobsson hosted the seminar, designed to discuss the relevant laws and gaps, and how they should be addressed.
The United Nations headquarters is in midtown Manhattan. Solidifying that I don’t know New York City well, I elected to stay at Fort Hamilton, a U.S. Army post in the southern part of Brooklyn (literally under the Verrazano Bridge). It’s less than 12 miles away, but that’s 12 New York City miles, so that means an hour and a half or more on a series of subways, or an expensive cab ride.
Finding the right entrance at the U.N. was a challenge, but fortunately the Swedish mission had positioned someone outside, holding a mini Swedish flag, to help.
Security-wise, actually entering the U.N. is similar to entering a U.S. airport, with the same take-out-your-laptop, limited-liquids approach.
I found my way to the conference room where our seminar would take place. The U.N. General Assembly was, and is, in session, so our seminar was one of any number of meetings on a wide range of topics happening at the same time. For example, here is this week’s schedule of General Assembly meetings.
The U.N. is, of course, international. What that means is that some signs and almost all U.N. documents are in all of the official U.N. languages (Arabic, Chinese, English, French, Russian and Spanish). It also creates challenges for the restaurants and snack bars there. On a early morning coffee break, I was able to chose from a bagel — or sushi.
The seminar’s attendees included representatives from governments, the U.N., the International Committee of the Red Cross, scientists, environmentalists, and of course, most important of all, university professors.
The seminar operated under the Chatham House Rule. Named after a policy institute in London, the rule means that participants are free to use the information they receive at the meeting but may not link what was said to who specifically said it. It’s a rule designed to encourage openness and candor in sharing information.
The seminar included a host of presentations on numerous topics related to protecting the environment during armed conflict, including one focused on Iraq’s marshlands, how the Eritrea-Ethiopian Claims Commission handled issues, protecting the environment in the 21st century and how militaries determine if it’s legal to use a certain type of weapon.
I came away from the seminar with a lot more questions than I had when I started it. This is a very challenging area of the law.
• How do you define the environment? Most international groups cannot agree on a definition. I think if we all tried to define the environment with family or friends, the same outcome would result. Does the definition include cultural property? You can probably guess what came next — how do we define cultural property?
• Why do we want to protect the environment? Is it protection of the environment as such or only as the environment impacts people? Imagine the dropping of a 2,000-pound bomb in the middle of barren desert. If you’re protecting the environment as such, you probably have concerns about the bomb. If your concerns are about impacts on people, and none are here, you probably don’t have concerns about the bomb.
One of the main challenges in my view is that the law of armed conflict only regulates a small percentage of environmental harm — direct harm — and only in a small percentage of armed conflicts.
The Additional Protocols to the Geneva Conventions state that “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage.”
The first problem is the lack of agreed-upon meanings of “widespread,” “long-term” and “severe.” The second problem is that the prohibition only applies to international armed conflict (IAC), one or more countries fighting one or more countries. It does not apply in non-international armed conflict (NIAC), where one country is fighting a civil war or insurgency. The law not applying to NIAC is particularly unfortunate as the vast majority of the armed conflicts that have occurred in the last 50 years have been NIAC. Most estimates are that about 90% of conflicts are internal or NIAC, and 10% or less are interstate or international.
On the issue of direct harm, the law restricts people from literally targeting the environment: Blowing up a dam, drying up a marsh to drive out people living there or dropping dangerous chemicals like agent orange to defoliate forests and destroy crops. This obviously can and does happen; “60 Minutes” has done a couple of stories about what Saddam Hussein did to Iraq’s marshlands and the people who live there.
But the limited law we have doesn’t regulate passive harm to the environment. Passive harm is not intentional, it’s the incidental effects of military operations; for example, think tens of thousands of military armored vehicles driving up and down roads. Over time, that’s bound to have some effects on the environment. Those effects aren’t intentional, but they nonetheless exist.
Also consider when the U.S. military operated burn pits in Iraq and Afghanistan; service members often burned pretty much everything, including things that were toxic. So again, no one was intending to harm the environment, but that was an outcome, as was thousands of U.S. veterans who now have serious skin, eye and respiratory issues.
Passive or incidental harm likely constitutes the vast majority of the harm to the environment during armed conflict. But the international community hasn’t been able to do much with prohibiting (and punishing) those who directly and intentionally harm the environment during armed conflict, so the more serious problem of confronting passive harm seems a ways off.
I left the seminar glad to have participated, but as I mentioned earlier, with more questions than when I arrived. My sense is there is a huge gap between the rhetoric of people and governments talking about protecting the environment during armed conflict versus agreeing on even what the terms mean.
Perhaps protecting the environment during armed conflict is now on the global radar screen, similar to land mines and cluster munitions 20 years ago.
For many years the focus was on raising awareness and educating people about the problems land mines and cluster munitions pose. Eventually the international community established several conventions that regulate and in some cases prohibit their use. If that’s the case with the environment, there’s a long road ahead — and I’m not sure when we will meaningfully start the trip. — C.J.