International Environmental Law and Naval War
Naval War College

Newport, Rhode Island

Center for Naval Warfare Studies

Newport Paper Number Fifteen

December 2000

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President, Naval War College

Vice Admiral Arthur K. Cebrowski, U.S. Navy

Provost, Naval War College

Rear Admiral Barbara E. McGann, U.S. Navy

Dean of Naval Warfare Studies

Professor Alberto R. Coll

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International Environmental Law and Naval War

The Effect of Marine Safety and Pollution Conventions

During International Armed Conflict

Sonja Ann Jozef Boelaert-Suominen

§

Printed in the United States of America

Contents

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Part One

International Environmental Law and Armed Conflict

Chapter I

Modern International Environmental Law and the Principal

Environmental Rights and Duties of States . . . . . . . . . . . . . . . . . . . . . 3

1.1. The Development and Milestones of Modern

International Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.1.1. The Impact of UNCHE and UNCED . . . . . . . . . . . . . . . . . . . . . 3

1.1.2. The Environment as a Concept . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1.2. The Principal Environmental Rights and Duties of States . . . . . . . 10

1.2.1. Principal Multilateral Environmental Agreements . . . . . . . . . 10

A. Marine Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. Freshwater Resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. Biodiversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D. Air Quality, the Atmosphere and Climate Change . . . . . . . . . . . . . . . . 19

E. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1.2.2. General Principles and Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Principle 21 of UNCHE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

B. Corollary Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. Contribution of the Rio Declaration. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

D. The Prohibition of Transfrontier Pollution in State Practice . . . . . . . 30

1.3. The Territorial Scope of the Prohibition of Transfrontier Pollution . 33

1.3.1. Bilateralism—at the Root of IEL . . . . . . . . . . . . . . . . . . . . . . . . 33

1.3.2. International Areas and Principle 21. . . . . . . . . . . . . . . . . . . . . 33

1.3.3. Damage to a State’s Own Environment. . . . . . . . . . . . . . . . . . . 39

1.4. Conclusions to Chapter I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Chapter II

Protection of the Environment in the Laws of Armed Conflict . . . . . . . . . 45

2.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

2.2. Jus in Bello and Environmental Protection. . . . . . . . . . . . . . . . . . . . . 48

2.2.1. Underlying Principles of the Law of Armed Conflict . . . . . . . 49

2.2.2. The Martens Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

2.2.3. Treaty Provisions until 1977. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

A. Treatment of Private, Semi-public and Public Property . . . . . . . . . . . . 54

B. Provisions of Naval Warfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

2.2.4. The 1977 ENMOD Convention . . . . . . . . . . . . . . . . . . . . . . . . . 58

2.2.5. Additional Protocol I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

A. Articles 53, 54 and 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

B. Articles 35(3) and 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

2.2.6. Responsibility and Liability for Violations of

Environmental Jus in Bello . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

2.2.7. Conclusions on Jus in Bello . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

2.3. Modern Jus ad Bellum and Environmental Protection. . . . . . . . . . . 71

2.3.1. Limitation of the Resort to Armed Force . . . . . . . . . . . . . . . . . 73

2.3.2. Rules on the Continuation of Armed Force . . . . . . . . . . . . . . . 74

2.3.3. Liability for Environmental Damage as a Result

of Lawful Use of Armed Force . . . . . . . . . . . . . . . . . . . . . . . . . 75

2.3.4. Liability for Environmental Damage Based on

Breaches of Jus ad Bellum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

2.3.5. Final Observations on Environmental

Implications of Jus ad Bellum . . . . . . . . . . . . . . . . . . . . . . . . . . 77

2.4. Environmental Implications of the Law of Neutrality . . . . . . . . . . . 78

2.4.1. Pre-Charter Neutrality Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

A. Neutral Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

B. Protection to Neutrals offered by Pre-Charter Law. . . . . . . . . . . . . . . . 79

C. Introduction to Contemporary Environmental Significance . . . . . . . . . 82

2.4.2. Post-Charter Neutrality Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

A. Influence of the UN Charter and Decline of the State of War . . . . . . . . 83

B. Current Significance of Neutrality Law . . . . . . . . . . . . . . . . . . . . . . . . 85

C. Environmental Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

2.4.3. Conclusions on Neutrality Law . . . . . . . . . . . . . . . . . . . . . . . . . 89

vi
Chapter III

The Operation of General International Environmental Law

during International Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

3.1. State Practice Regarding IEL in Armed Conflict. . . . . . . . . . . . . . . . 91

3.1.1. The Tanker War and the Law of the Sea. . . . . . . . . . . . . . . . . . 91

3.1.2. The 1983 Nowruz Oil Spill, the 1978 Kuwait

Regional Convention and 1982 UNCLOS . . . . . . . . . . . . . . . . . 93

3.1.3. Operation “Praying Mantis,” Customary Law

and the Kuwait Regional Convention . . . . . . . . . . . . . . . . . . . 96

3.1.4. The 1991 Gulf War Oil Spill and the

1990 OPRC Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

3.1.5. State Submissions in the Advisory Opinions

on Nuclear Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

3.2. The Relationship between Peacetime Law and

the Law of Armed Conflict in General . . . . . . . . . . . . . . . . . . . . . . . . 99

3.3. The Relationship between Principle 21 and

International Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

3.3.1. Armed Conflict, UNCHE and UNCED . . . . . . . . . . . . . . . . . 103

3.3.2. Hostile Military Activities Compared to

Peacetime Military Activities . . . . . . . . . . . . . . . . . . . . . . . . . 106

3.3.3. Neutrality and Principle 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

3.4. The Relationship between Multilateral Environmental

Agreements and International Armed Conflict . . . . . . . . . . . . . . . . 109

3.4.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

3.4.2. The Relationship between International Armed

Conflict and Treaties in General . . . . . . . . . . . . . . . . . . . . . . 111

A. State Practice and Opinio Juris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

B. Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

C. Development of Legal Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

D. The Codification Efforts of the Institut de Droit International

between 1974–1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

3.4.3. Contributions Made by the ILC Codifications . . . . . . . . . . . . 131

3.4.4. Methodology Suggested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

3.5 Conclusions and Introduction to Part Two.. . . . . . . . . . . . . . . . . . . . 136

3.5.1 Conclusions to Chapter III . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

3.5.2 Introduction to Part Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

vii
Part Two

Maritime Conventions and Naval War

Chapter IV

The Exclusion of War Damage from the Scope of Maritime

Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

4.1. General Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

4.2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

4.2.1. Nuclear Industry as Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

4.2.2. Maritime Carriage of Oil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

4.2.3. Maritime Carriage of Nuclear Material . . . . . . . . . . . . . . . . . . 148

4.2.4. Maritime Carriage of Hazardous and Noxious Substances . . 149

4.2.5. Draft Convention on Wreck Removal . . . . . . . . . . . . . . . . . . . 151

4.3. Conclusions to Chapter IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

Chapter V

Contingency Clauses for Armed Conflict in Maritime Treaties . . . . . . . 155

5.1. General Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

5.2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

5.2.1. The Salvage Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

A. The 1910 Salvage Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

B. The 1989 Salvage Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

5.2.2. The Load Lines Conventions. . . . . . . . . . . . . . . . . . . . . . . . . . 159

A. The 1930 Load Lines Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

B. The 1966 Load Lines Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

5.2.3. The Safety Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

A. The 1914 Safety Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

B. The 1929 Safety Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

C. The 1948 Safety Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

D. The 1960 Safety Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

E. The 1974 SOLAS Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

5.2.4. The Pollution Prevention Conventions. . . . . . . . . . . . . . . . . . 174

A. The 1954 OILPOL Convention and the 1962 OP Conference. . . . . . . 174

B. MARPOL 73/78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

C. The 1972 London Dumping Convention . . . . . . . . . . . . . . . . . . . . . . 176

5.3. Conclusions to Chapter V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Chapter VI

Sovereign Immunity and the Exemption of Public Vessels from

Maritime Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

6.1. General Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

6.2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

6.2.1. Load Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

6.2.2. Safety Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

6.2.3. COLREGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

6.2.4. Prevention of Oil Pollution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

6.2.5. Prevention of other forms of Marine Pollution . . . . . . . . . . . 192

A. The 1972 Oslo and London Dumping Conventions . . . . . . . . . . . . . . 192

B. MARPOL 73/78 and 1982 UNCLOS . . . . . . . . . . . . . . . . . . . . . . . . . 193

C. Environmental Implications in General . . . . . . . . . . . . . . . . . . . . . . . 197

D. Environmental Implications during Armed Conflict . . . . . . . . . . . . . 200

6.2.6. (Civil) Liability Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . 203

A. The 1960 Paris Convention and the 1963 Vienna Conventions. . . . . . 204

B. The 1962 Nuclear Ships Convention . . . . . . . . . . . . . . . . . . . . . . . . . 205

C. The 1969 Civil Liability Convention . . . . . . . . . . . . . . . . . . . . . . . . . 207

D. The 1971 IOPC Fund Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

E. The 1971 Convention on Maritime Carriage of Nuclear Material . . . . 209

F. The 1996 HNS Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

6.2.7. Intervention Series. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

A. The 1969 Intervention Convention . . . . . . . . . . . . . . . . . . . . . . . . . . 211

B. The 1973 Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

C. Conclusions Regarding the Intervention Series . . . . . . . . . . . . . . . . . 214

6.2.8. Salvage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

A. The 1910 Salvage Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

B. The 1967 Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

C. The 1989 Salvage Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

D. Evaluation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

6.2.9. The 1990 OPRC Convention . . . . . . . . . . . . . . . . . . . . . . . . . . 224

6.2.10. Wreck Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

6.3. Conclusions to Chapter VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

ix
Chapter VII

Conclusions on the Relationship between Maritime Treaties and

Naval War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

7.1. Conventions Dealing with Safety Aspects and Navigation . . . . . . 231

7.1.1. The 1966 Load Lines Convention . . . . . . . . . . . . . . . . . . . . . . 231

7.1.2. The 1972 International Collision Regulations . . . . . . . . . . . . 232

7.1.3. The 1974 Safety of Life at Sea Convention (SOLAS) . . . . . . . . 232

7.2. Maritime (Civil) Liability Conventions . . . . . . . . . . . . . . . . . . . . . . . 234

7.3. Prevention of Oil Pollution and other Forms of Marine Pollution. . . 234

7.4. Conventions Dealing with Maritime Emergencies . . . . . . . . . . . . . 235

7.4.1. The 1969 Intervention Convention and the 1989

Salvage Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235

7.4.2. The 1990 OPRC Convention . . . . . . . . . . . . . . . . . . . . . . . . . . 238

7.4.3. The 1978 Kuwait Regional Convention . . . . . . . . . . . . . . . . . 241

Chapter VIII

General Conclusions on the Legal Effect of Multilateral

Environmental Agreements during International Armed Conflict. . . . 247

Table of International Case Law Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

Table of Treaties Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

Abbreviations and Acronyms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323

About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365

x
Foreword

THE CORNERSTONE OF MODERN INTERNATIONAL ENVIRONMENTAL LAW is

the prohibition of transfrontier pollution: states have the responsibility to

ensure that activities within their jurisdiction or control do not cause damage to

the environment of other states or of areas beyond national jurisdiction. In addition, there is now a substantial body of international treaties laying down detailed

régimes for various environmental sectors. Relatedly, recent international conflicts have raised fundamental questions about the relationship between

international law and armed conflict. The notion that the rules of general international environmental law continue to apply during armed conflict is now well

accepted, but the principles that are usually cited remain at a very high level of

abstraction.

Dr. Sonja Ann Jozef Boelaert-Suominen, legal adviser in the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia, in the

Hague, the Netherlands, examines the extent to which international law has developed more detailed rules to protect the environment in international armed

conflict. After a discussion of the main legal issues, the author focuses on the marine environment, examining the relationship between naval warfare, on one

hand, and multilateral environmental treaties on marine safety and the prevention of marine pollution, on the other.

Dr. Boelaert-Suominen argues that the majority of these treaties do not apply

during armed conflict, either because war damage is expressly excluded or because the treaties do not apply to warships. As for the treaties that are in principle

applicable during armed conflict, her analysis shows that, under international

law, belligerent and neutral states have the legal right to suspend those treaties,

wholly or in part. The author concludes that very few of the treaties considered

take the new law of armed conflict into account and that there remains a need for

more detailed rules on environmental standards for military operations.

In 1996, the Naval War College International Law Studies published volume

69 in its “Blue Book” series—Protection of the Environment during Armed Conflict.

This compilation of papers was written for and presented at the Law of Naval
Warfare Symposium on the Protection of the Environment during Armed Conflict and other Military Operations, held at the Naval War College in 1995.

Contributors to this conference suggested the necessity for a thorough study of

the relationship between environmental treaties and the laws of war. It is my pleasure, therefore, to publish and commend to our readers Dr. Boelaert-Suominen’s

International Environmental Law and Naval War: The Effect of Marine Safety and

Pollution Conventions during International Armed Conflict.

ARTHUR K. CEBROWSKI

Vice Admiral, U.S. Navy

President, Naval War College

xii
Acknowledgments

THIS WORK WOULD NOT HAVE BEEN POSSIBLE without the help and encouragement that I received from many people and institutions. I am particularly

indebted to Christopher Greenwood, Professor of International Law at LSE, for

his stimulating advice, critical comments, and unrelenting support. In his busy

schedule, he found the time to read through several versions of each my chapters,

make pertinent observations, and give precious strategic advice.

I am also grateful to Dr. Glen Plant, who introduced me to the subject, and to

Dr. Peter Muchlinski and Professor Hugh Collins from the LSE Law Department for their invaluable institutional and emotional support.

The bulk of the research for this work was made possible through a grant that I

received from the European Commission, more specifically from the Directorate

General for Science, Research and Development, Joint Research Center

(DG-XII/D). It enabled me to hold the position of EC Environment Fellow at LSE

from 1994 to 1996. In this regard, I wish to thank also the staff of the LSE Research and Contracts Division.

I am further indebted to the following institutions for the superb library facilities they provided: the IMO Library, the British Library of Political and

Economic Science (BPLES), the Institute of Advanced Legal Studies (IALS), and

several other libraries of the University of London.

On a personal level, my family, and especially my parents, deserve thanks for

helping out at short notice with childcare. But my warmest gratitude goes to my

husband, Jyrki Suominen, for his emotional support and patience during the

years I worked on this thesis.

Finally, the responsibility for the views expressed in this study and for any

mistakes either in substance or language is, of course, mine alone.

Sonja A. J. Boelaert-Suominen

Introduction

HISTORICAL EVIDENCE OF GENUINE CONCERN about the impact of war on the

human environment can be found since the earliest civilisations. Yet, the

history of war is replete with examples of serious devastation of the enemy’s land

and property.

The relationship between peacetime human activities and the environment is in

the stage of advanced public debate and scholarly attention, and much progress has

been made in recent years regarding the development of appropriate instruments

and institutions pertaining to the protection of the environment in peacetime.

The cornerstone of modern International Environmental Law is the prohibition of transfrontier pollution, according to which, States have the responsibility

to ensure that activities within their jurisdiction or control do not cause damage

to the environment of other States or to areas beyond national jurisdiction. In addition, there is now a substantial body of international treaties laying down

detailed rgimes for various environmental sectors.

Recent international conflicts, such as the 1980–1988 Iran-Iraq and the

1990–1991 Gulf wars, have raised fundamental questions about the relationship

between modern International Environmental Law and armed conflict. The notion that rules of general International Environmental Law continue to apply

during armed conflict is now well accepted.

In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear

Weapons, the International Court of Justice stressed that “the obligations of States

to respect and protect the natural environment,” applied equally “to the actual use

of nuclear weapons in armed conflict.”1

However, the international legal principles for the protection of the environment in armed conflict which are usually cited, remain at a very high level of

abstraction. In the above advisory opinion, the Court offered the following broad

statement:

. . . States must take environmental considerations into account when assessing what

is necessary and proportionate in the pursuit of legitimate military objectives.
Respect for the environment is one of the elements that go to assessing whether an

action is in conformity with the principles of necessity and proportionality.2

Similarly, whilst environmental considerations are increasingly included in

military manuals, the ensuing principles remain vague. Thus, the Commander’s

Handbook on the Law of Naval Operations for the U.S. Navy provides that:

. . . the commander has an affirmative obligation to avoid unnecessary damage to the

environment to the extent that it is practicable to do so consistent with mission

accomplishment. To that end, and so far as military requirements permit, methods

or means of warfare should be employed with due regard to the protection and

preservation of the natural environment. Destruction of the natural environment

not necessitated by mission accomplishment and carried out wantonly is

prohibited.3

This thesis examines the extent to which international law has developed

more detailed standards to protect the environment in international armed conflict, by concentrating on the law of naval warfare on the one hand and

multilateral treaties regarding protection of the marine environment on the

other. The reasons why this study concentrates on the marine environment are

as follows.

First, it will be seen that the bulk of the existing multilateral environmental

agreements relate to the marine environment. They contain among the most detailed norms of current International Environmental Law. This contrasts sharply

with the law of naval warfare, which consists primarily of customary rules of international law. Although there have been unofficial initiatives leading to the

1913 Oxford Manual of Naval War,4 and more recently, to the 1994 San Remo Manual on International Law Applicable to Armed Conflict at Sea,

5 much of the law of

naval warfare is uncodified and in need of update.

Secondly, of all types of armed conflict, naval conflicts are the most likely to affect not only the contending States but also States not directly involved in the

hostilities. Therefore, conflicts with an important naval component may reveal

State practice and opinio juris regarding the legal effect of maritime treaties for

contending and non-contending States.

Thirdly, many of the maritime treaties that will be considered in this study

have antecedents that go back to the beginning of the twentieth century. This

means that they may have been affected by several large inter-State conflicts and

may point to rules of international law on the operation of maritime environmental law during international armed conflict.

xvi
Finally, many of the modern descendants of the early maritime treaties were

concluded under the auspices of the International Maritime Organisation or its

predecessor. Institutional memory greatly increases the likelihood of consistency

in the interpretation of certain treaty clauses.

This study is divided into two main parts. In the first part, the author examines

the main legal questions involved. Chapter I discusses the origins and development of modern International Environmental Law; Chapter II deals with the lex

specialis and examines the protection of the environment in the law of armed conflict, discussing jus in bello, jus ad bellum and the law of neutrality; Chapter III

examines the operation of general International Environmental Law during

armed conflict.

In the second part, the author examines the legal relationship between naval

warfare on the one hand and multilateral environmental treaties on marine safety

and prevention of marine pollution on the other. Chapter IV deals with the exclusion of war damage from the scope of maritime conventions; Chapter V discusses

the contingency clauses which appear in some of the treaties and which specifically address the possibility of war or armed conflict; Chapter VI deals with the

exemption of warships from the application of some of the maritime conventions.

In Chapter VII, the author formulates conclusions on the relationship between

naval warfare and the maritime treaties discussed, whilst Chapter VIII contains

general conclusions on the legal effect of environmental treaties during international armed conflict.

xvii

Part One

International Environmental Law

and Armed Conflict

Chapter I

Modern International Environmental Law and the

Principal Environmental Rights and Duties of States

THE MAIN OBJECTIVE OF THIS FIRST CHAPTER is to review the salient features ofmodern (peacetime) International Environmental Law. After a discussion of the

origins and development of the discipline, the author will consider whether it is possible and useful to define the environment. Section two is devoted to an examination

of the principal rights and duties of States in relation to their use of the environment. In

section three, the territorial scope of the identified environmental rights and duties will

be analysed. The conclusions to this chapter are contained in the fourth section.

1.1. The Development and Milestones of Modern International

Environmental Law

1.1.1. The Impact of UNCHE and UNCED

The term “International Environmental Law” (hereinafter IEL) will be used

throughout this study as a shorthand for the corpus of international law relevant

to environmental issues. The definition by Dr. Birnie and Professor Boyle offers a

good starting point to describe the field of international law that this study will be

concerned with:

. . . the aggregate of all rules and principles aimed at protecting the global

environment and controlling activities within national jurisdiction that may affect

another State’s environment or areas beyond national jurisdiction.1

There is some divergence of opinion in the literature about the historic antecedents of modern IEL. Professor Caldwell dates the earliest international
co-operative efforts inspired by environmental concerns back to 1872, when the

Swiss Government proposed an international regulatory commission to protect

migratory birds in Europe. He discusses the growth of environmental concern

since the Second World War and argues that a first “wave of environmentalism”

in the 1960s reached its apex in 1972.2 Dr. Hohmann distinguishes two main periods in the development of IEL: traditional environmental law, based on economic

considerations, from the beginning of this century to 1972, and modern international environmental law, dominated by ecological concerns, from 1972

onwards.3 Professors Kiss and Shelton regard 1968 as a turning point, for it was

then that several international organisations began placing environmental protection on their agendas.4

A common denominator in the literature is that modern IEL was formed at the

end of the 1960s or in the beginning of the 1970s. It was indeed in the early 1960s

that a number of scientific studies raised the alarm regarding the effects of unchecked economic development on the human environment. The works of U.S.

marine biologist Rachel Carson (1907–1964) are widely credited with raising public awareness, particularly her book, Silent Spring (1962), in which she questioned

the widespread use of chemical pesticides. In addition, a series of environmental

catastrophes in the 1960s underlined the gravity of the increased threats to the environment and to human health. In Japan, the Chisso Corporation, which for

more than 30 years discharged mercury into the Minimata Bay and River, was finally forced into court in 1969. By then the full consequences of the Minimata

disease—an extreme form of mercury poisoning which caused serious birth defects and ruined the local fishing industry—had come to light. In Europe, the

“black tides” off the coasts of France and England caused by the 1967 Torrey Canyon disaster were a catalyst in the development of a totally new convention

apparatus for marine catastrophes.5 In 1968 a diverse group of private and public

sector experts, worried about environmental decline, formed the Club of Rome.

Their 1972 report—entitled “Limits to Growth”6

—quickly became an international best-seller. Grassroots movements of concerned citizens succeeded in

mobilising their governments7 and various international organisations to take on

environmental problems. By 1972, a wide variety of intergovernmental organisations, both within and outside the UN system, and several unofficial bodies had

included specific environmental concerns on their agendas.8

An early milestone for IEL was the Conference on the Human Environment

(UNCHE) convened in Stockholm by the UN General Assembly in 1972. This high

profile meeting produced a large number of texts, best known of which are the

Stockholm Declaration of Principles for the Preservation and Enhancement of

the Human Environment (adopted by acclamation) and the ambitious Action

4

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Plan for the Human Environment, which contains 109 Recommendations.9 The

Stockholm Declaration, which consists of a Preamble and 26 “Principles,” contains provisions not only addressed to the traditional subjects of international

law—States—but also deals with environmental rights and duties of individuals,

organisations, local and national governments, and international institutions. It

has been said of the UNCHE that:

In environmentally conscious circles, the calendar starts in 1972, the year of the

Stockholm conference.10

Since 1972, the International Law Commission (ILC) and unofficial bodies

such as the Institut de Droit International (hereinafter Institut) and the International Law Association (ILA) have made significant contributions to the

codification and progressive development of aspects of IEL, mainly in the areas of

water resource law and transboundary air pollution.11 UNCHE is further credited

with giving impetus to important regional initiatives, such as the development of

environmental protection rules by the EEC.12 Other regional intergovernmental

organisations that have advanced the development of modernIEL are the UN Economic Commission for Europe (UN/ECE), the Council of Europe, and to a lesser

extent, the Organisation for Economic Co-operation and Development (OECD).13

Apart from the official recognition of the environment as a subject of general

international concern, another major outcome of UNCHE was the establishment of

the United Nations Environment Programme (UNEP).

14 From rather modest beginnings, UNEP has played an increasingly important role in the promotion and

development of IEL. For instance, it initiated a successful regional seas programme and sponsored the conclusion of agreements on the protection of the

ozone layer and hazardous waste.15

A further important institution for the development of IEL is the International Maritime Organisation (IMO), established initially in 1948 as the

International Maritime Consultative Organisation (IMCO). A specialised UN

agency concerned with both maritime safety and marine pollution, it promotes

important environmental treaties for which it often provides secretariat

functions.

In celebration of the 10th anniversary of the Stockholm Conference, the UN

General Assembly adopted in 1982 the “World Charter for Nature” with overwhelming support.16 The Charter is aimed at setting forth “the principles of

conservation by which all human conduct affecting nature is to be guided and

judged.” However, it uses mainly aspirational language and is generally regarded

as laying down standards of ethical but not legal conduct.17

5

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The 1992 Rio Conference on Environment and Development (UNCED) was

timed to coincide with the 20th anniversary of the Stockholm Conference. Delegates from 178 States and 650 non-governmental organisations participated.18 In

terms of international instruments, the Rio Conference adopted two treaties and a

set of principles on specific environmental problems19 in addition to a general

Declaration on Environment and Development consisting of 27 Principles aimed

at reaffirming and developing the Stockholm Declaration. UNCED also led to a voluminous blueprint for action in the 21st century and beyond, entitled Agenda

21.20 It comprises 40 chapters and hundreds of programme areas, the implementation of which is the responsibility of governments, with key roles for the UN

system, other official and non-official, regional and sub-regional organisations,

and with particular attention to broad public participation.21

Post-UNCED institutions include the UN Commission on Sustainable Development, a UN Department for Policy Coordination and Sustainable Development, a

High-Level Advisory Board of experts on sustainable development, a Global Environmental Facility and an independent, non-governmental Earth Council.22

In 1997 the UN General Assembly convened a special session for the purpose

of an overall review and appraisal of the implementation of Agenda 21.23 Apart

from a programme for the further implementation of Agenda 21, a “statement of

commitment”24 was adopted in which a number of positive results were acknowledged, but deep concern was expressed that the overall trends for sustainable

development25 were worse in 1997 than they were in 1992. Participants hence

committed themselves to ensure greater measurable progress in achieving sustainable development by 2002.

1.1.2. The Environment as a Concept

There is no commonly agreed definition of the concept “environment” in international law. It is a term, as Professor Caldwell writes, which everyone understands but no one is able to define.26 The International Court of Justice (ICJ) expressed the same sentiment when it stressed in its 1996 Advisory Opinion on the

Legality of the Threat or Use of Nuclear Weapons that:

. . . the environment is not an abstraction but represents the living space, the quality

of life and the very health of human beings, including generations unborn.27

Many writers tend to shun the task of developing an all-purpose definition of

the environment or borrow heavily from the natural sciences.28 Professors Kiss

and Shelton for instance, use the term “biosphere,” and define the environment as:

6

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. . . any point on a continuum between the entire biosphere and the immediate

physical surroundings of a person or a group.29

The biosphere is a concept that originated in geological circles at the end of the

last century and was adopted by UNESCO in 1966.30 It refers to the relatively thin

zone of air, soil and water that is capable of supporting life, comprising the earth

itself, a sector of several hundred meters above the earth, and a sector beneath the

earth and the oceans.

There are several important lessons to be drawn from an excursion into the

natural sciences. In the first place, natural scientists view the term “environment”

as an essentially relative and potentially infinite concept, pointing to objects,

chemical processes or lifeforms surrounding another object or lifeform and which

stand in relation to it.31 To ecologists, there are no limits as to size or complexity

of the terms “environment” or “ecosystem.”32

Moreover, the “natural environment” is probably an outdated concept, for it

disregards the unique and significant role which humans play in the biosphere.33

A UNEP Working Group of Experts on environmental damage arising from military activities suggested that the definition of the environment should include

natural elements as well as human elements, i.e., not only “abiotic and biotic components, including air, water, soil, flora, fauna, and the ecosystem formed by their

interaction,” but also “cultural heritage, features of the landscape and environmental amenity.”34

In the decades since UNCHE, scholars from various disciplines have advocated

divergent philosophies as a basis for environmental policy. In an influential article that was published in 1972 and quickly popularised as a book, Professor Stone

proposed:

. . . that we give legal rights to forests, oceans, rivers and other so-called “natural

objects” in the environment—indeed to the natural environment as a whole.35

These so-called ecorights are radically nature-centred. Their moral ground is

the intrinsic good or worth of nature.36 In legal terms, a thorough nature-centred

morality implies that the environment would need to be protected for its own sake

in the absence of identifiable human values, rights, or interests.37 Ecocentrist

ideas have been invoked mainly in U.S. courts, with ambiguous results.38 Some

legal scholars have expressed sympathy for according rights to certain sentient

species, such as elephants39 and whales.40

Ecocentrist theory holds that no part of the environment can be rationally said

to be more important than another.41 However, it leaves a few serious questions

7

International Environmental Law and Naval War
unanswered. Should free nature be allowed to reign? What about natural objects

such as pests and viruses or natural phenomena such as flooding?42 The theory of

interspecies equity is probably an over-reaction to the serious mismanagement of

the environment by humans. Recognising that humans are part of a biotic community may be a step in the good direction, but it does not in itself point to

guidelines for human behaviour.43

The debate between anthropocentrist and ecocentrist positions is reflected in

many (peacetime) environmental instruments. The 1972 Stockholm Declaration

seems anthropocentric because of its focus on the protection of nature for the benefit of mankind.44 By contrast, the 1982 World Charter for Nature is seen as

ecocentric, for it emphasises the protection of nature as an end in itself:

Every form of life is unique, warranting respect regardless of its worth to man....45

However, there is great ambivalence within the environmental community

about the ultimate reasons for protecting the environment. Many recent environmental campaigns continue to appeal to traditional human-centred instincts.46

Furthermore, it can be argued that the newly developed concepts of inter-generational equity and sustainable development47 are in essence anthropocentric: they

refer, inter alia, to interests, entitlements or rights of (future generations) of people.48 This prevailing ambivalence was not resolved by UNCED. On the contrary, it

is possible to regard the Rio Declaration as a step back in the direction of pure

anthropocentrism, for the first principle strikingly propounds that:

Human beings are at the centre of concerns for sustainable development.

The Biodiversity Convention that was adopted at the same conference, by contrast, attempts to combine both anthropocentric and ecocentric values.49

While the views of animal rights activists and other inter-species equity theorists have drawn much attention in recent years, most international legal

instruments, apart from a few adopted by the Council of Europe,50 have tended to

endorse what has been termed an “environmentalist” view. Instead of claiming

that all species should be protected, however adverse their effect on humans or

other species, this theory stresses that species need to be protected for ecological

reasons, as part an ecosystem.51

The better view seems to be that all concern for the environment shows anthropocentric attributes. Many people value protection of the environment,

irrespective of its economic worth to mankind. Moreover, the scarcer natural resources become, the more value will be placed on preserving what is left.52

8

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Human beings have in the last decades become increasingly aware of the possible

long-term effects of environmental degradation on the human population.53 The

growing awareness of the interrelatedness of all life processes on Earth is another

reason for extending protection to previously underrated environmental components. Such moderate anthropocentrism should not be viewed as necessarily

negative. Non-human components will benefit from the “reflex-function” of

norms created by and for humans.54

It is nevertheless legitimate to question if it matters in a legal sense that all Nature is subordinated to human considerations. Authors such as Professor Stone

claim that it does, particularly with regard to compensation for environmental

damage.55Furthermore, the subordination of Nature to human claims is more apparent in the law of armed conflict, as will be seen later.56

In sum, a scientifically sound, comprehensive, and all-purpose legal definition

of the environment would have to stress the relative and potentially infinite character of the concept, the interrelatedness of all environmental components, the

primordial role played by mankind in the environment, and possibly also balance

anthropocentrist and ecocentrist notions.

Apart from the difficulty to define and restrict the scope of the concept from a

legal perspective, there are other reasons why there are few all-purpose legal definitions of the environment. The first one is historic. IEL started from a sectoral

approach, dealing with environmental concerns as they arose in relation to specific media and resources, thus obviating the need for a wide definition of the

environment. At first, international law-making in this area was also purely reactive—typically in response to a major industrial accident revealing the

inadequacy of existing regulations. By contrast, some recent treaties allow for preventive actions to be taken in response to emerging scientific evidence. At the

same time, integrated approaches are being developed for transsectoral environmental problems.57

There are an impressive number of bilateral and multilateral treaties on the environment.58 However, the discipline of IEL is hardly codified. Repeated attempts

in the 1980s and the 1990s at formulating a comprehensive and binding treaty on

the environmental rights and duties of States ended in failure.59 There is as yet no

uniform conceptual approach to environmental regulation.60 It is safe to state

therefore, that the actual content of the environmental rights and duties of States

depends significantly on the context and objectives of the treaty instrument at issue, and that it varies according to the sector, media, and type of activity under

consideration.61 It is therefore neither possible nor advisable to search for an

all-purpose definition of terms such as environment, pollution, or harm, at least

as far as general (peacetime) IEL is concerned.62

9

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1.2. The Principal Environmental Rights and Duties of States

Whilst IEL is predominantly treaty-based law,63 many writers continue to attach great importance to customary international law as an instrument for

environmental lawmaking.64 In the light of the subject of this work, it is important to determine the content of general or customary IEL.

65 In the first part of this

section, the most important multilateral environmental agreements will be examined; in the second part, general principles and rules.

1.2.1. Principal Multilateral Environmental Agreements

A great number of multilateral environmental agreements have been adopted

at the global and regional level establishing specific obligations in relation to various environmental sectors. As one commentator observes, it seems that for each

new environmental problem, a new treaty is negotiated.66 Some of these receive

widespread support and may reflect rules of general or customary international

law. Given the subject of this work, the following review will focus mainly on the

marine environment.

A. Marine Environment. The majority of environmental treaties deal with

protection of the marine environment, containing among the most highly developed norms in the field of IEL. Although the causes of marine pollution are

diverse, most treaties deal with the following types of pollution: operational and

accidental discharges from ships, pollution arising from the exploration and exploitation of the seabed, land-based pollution, and deliberate dumping of

industrial wastes.67

Marine pollution is a relatively long-standing concern. In 1926 a draft convention on pollution from ships, limiting discharges of oil and gas into the sea, was

drawn up at an international conference convened by the United States. It failed

to gain acceptance as did a second draft prepared under the auspices of the League

of Nations in 1935 to reduce pollution resulting from tanker-cleaning operations.68 It was only after the Second World War that agreement was reached on

concerted international action. As a result, the 1954 International Convention for

the Prevention of Pollution of the Sea by Oil was adopted to prohibit deliberate

discharges of oil in specified zones.69 Shortly thereafter, prohibitions related to

pollution of the sea by oil or pipelines, as well as by radioactive wastes, were included in the 1958 UN Convention on the High Seas.70 A prohibition on

pollution by wastes resulting from oil drilling on the continental shelf was incorporated into the 1958 UN Convention on the Continental Shelf.71

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Following the Torrey Canyon accident, IMCO sponsored the adoption in 1969 of

two conventions, one concerning civil liability for oil pollution damage and the

other related to intervention on the high seas in cases of oil pollution casualties.72

These were later supplemented by a 1971 Convention creating an additional fund

for compensation for oil pollution damage and a 1973 Intervention Protocol for

pollution casualties caused by substances other than oil.

Although it was still an ad hoc approach for specific environmental problems,

several instruments for the protection of the marine environment were adopted as

a result of Principle 7 of the Declaration73 and of the Action plan74 adopted at the

1972 UNCHE.In its wake a new global treaty was adopted at an intergovernmental

conference in London: the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, dealing primarily with ocean

dumping. One year later, the International Convention for the Prevention of Pollution by Ships was concluded at IMCO headquarters. It has as its ambitious

objective the complete elimination of all intentional vessel-source pollution and

the minimisation of accidental discharges; it lays down detailed rules in six annexes dealing with oil, noxious liquid in bulk, harmful substances in packaged

form, garbage, sewage, and most recently, air pollution.75 It was intended to replace the 1954 Oil Pollution Prevention Convention and was substantially

amended and replaced by a 1978 Protocol. Usually referred to as MARPOL 73/78, it

has been widely ratified,76 although the Annexes have received less support.77

In 1973, negotiations for the third UN Conference on the Law of the Sea commenced. This resulted nine years later in the adoption of an umbrella convention

comprising more than 400 articles, spread over 17 chapters and 9 annexes that

form an integral part of the convention. The Montego Bay Convention on the

Law of the Sea (1982 UNCLOS) is regarded as the most comprehensive environmental treaty thus far, recording customary law, introducing many innovative

provisions, in addition to striking compromises on perennial and newly emerged

problems. Intended as a comprehensive restatement of almost all aspects of the

law of the sea,78 it sets a global framework for, inter alia, the exploitation and conservation of marine resources and for the protection of the marine environment.79

It obligates States “to protect and preserve the marine environment” (Article 192)

and enacts a framework envisaging all types of pollution of the marine environment, whatever the cause: vessel-source, land-based sources, dumping,

exploitation of the seabed, and air pollution (Part XII, Art. 192-237). The convention introduces new provisions aimed at preventing pollution from the

exploration and exploitation of the seabed and its subsoil.80 It also attempts to

strike a new balance between the powers of flag States and coastal States, the former extending primarily to freedom of navigation and fishing, the latter to

11

International Environmental Law and Naval War
effective regulation and control. It recognises the competence of coastal States to

combat pollution in the territorial sea and in the new jurisdictional area of the Exclusive Economic Zone (EEZ).

81

As is well-known, the convention entered into force only on 16 November

1994, one year after it had obtained the necessary 60 ratifications82 and after substantial amendments had been agreed in July 1994 regarding Part XI on deep

seabed mining.83 Many more Western States, including the European Community (EC), have since consented to be bound by the UNCLOS Convention and the

1994 Agreement.84 As of 12 March 1998, 124 States have ratified the main convention, and 85 the 1994 Agreement.85 However, most commentators seem to agree

that 1982 UNCLOS did not introduce any substantially new provisions on the marine environment of the high seas.86 Its provisions are seen as the culmination of a

number of changes in the international law of the sea that took place earlier. One

of these is the fundamental principle that pollution can no longer be regarded as

an implicit freedom of the seas.87 In addition, Part XII of 1982 UNCLOS is largely

composed of so-called umbrella provisions88 that have received widespread and

consistent support in State practice, most notably, pursuant to many treaties and

international rules that implement or complement Part XII.89 Agenda 21 endorsed the view that this part of UNCLOS reflects customary international law.90

At the same time, a substantial body of regional conventions developed.91 One

series of regional treaties concerns industrial pollution and land-based activities

in the North Sea and the North-East Atlantic area. The first of these was the 1969

Bonn Agreement for Co-operation in Dealing with Pollution of the North Sea by

Oil, concluded in the wake of the Torrey Canyon incident.

Other agreements covering the northern hemisphere are the 1972 Oslo

Dumping Convention which applies to the North-East Atlantic, the North Sea,

and the adjacent Arctic seas, and the 1974 Paris Convention which deals with

land-based pollution in the same area. They were replaced in 1992 by a single

comprehensive agreement: the Convention for the Protection of the Marine Environment of the North-East Atlantic (1992 OSPAR Convention).92The area is also

increasingly covered by measures adopted at a series of International North Sea

Conferences and by the growing body of EC law.93

Secondly, there are the treaties concluded under UNEP’s Regional Seas/Oceans

and Coastal Affairs Programme. The programme was inspired by the 1974 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea

Area in which the littoral States agreed to address all forms of marine pollution.

The 1974 Convention sets stringent standards for dumping at sea, adopts rules inspired by MARPOL 1973 for vessel-source pollution, and covers airborne and

land-based sources of pollution.94 The UNEP programme was launched in 1978

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and focuses primarily on developing countries of the Southern Hemisphere. By

1995, it included 13 regional areas, 8 of which were covered by binding international instruments;95 the Mediterranean, Persian/Arabian Gulf, Gulf of Guinea,

South-East Pacific, Red Sea and Gulf of Aden, Caribbean, Indian Ocean and East

Africa, and South Pacific. For each regional sea, a similar flexible and dynamic

pattern is followed, which often includes the adoption of an Action Plan for the

region and a framework convention applicable to the territorial sea and the EEZ of

the State parties. In the framework convention, Parties agree to take appropriate

measures to prevent, abate, and combat pollution and protect and enhance the

marine environment, and to formulate and adopt protocols on agreed measures,

procedures, and standards.96 This is followed by a series of integrated protocols in

which specific problems are tackled. Many of these cover combating oil pollution

and other forms of marine pollution in cases of emergency, as well as dumping

from ships and aircraft; a few include pollution from exploration and exploitation

of the continental shelf, land-based sources of marine pollution, transboundary

movement of hazardous wastes, and specially protected areas. In 1992 UNEP assisted the six Black Sea States with the adoption of a similar framework

convention and a number of protocols. However, many of the regional sea

programmes lack the detailed regulations applying to the Northern Hemisphere,

suffer from weak participation by States in some regions, and have a poor record

of ratification and implementation.97

The legal relationship between all these international instruments may appear

complex. As for the relationship between 1982 UNCLOS and other treaties,

Article 237 states that Part XII is without prejudice to more specific obligations

assumed under earlier or later conventions, provided that these are carried out in

a manner consistent with the general principles and objectives of 1982 UNCLOS. It

follows that rights and obligations derived from the 1978 Kuwait Regional Convention, and even from specialised maritime conventions such as MARPOL 73/78,

“trump” UNCLOS provisions provided that they are consistent with the general

rules of the latter.98Moreover, many of the regional seas conventions contain provisions on their relationship with other international conventions and rules.99

Furthermore, in its provisions on vessel-source pollution, dumping, and seabed operations, 1982 UNCLOS stipulates that States must give effect to

international rules and standards as well as recommended practices and procedures, and that they must act through competent international organisations or

conferences to establish international global and regional rules.100 This phraseology may imply that 1982 UNCLOS aims at incorporating conventions such as the

1972 London Dumping Convention, MARPOL 73/78 and possibly other specialised treaties.101

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The International Maritime Organisation is regarded as the competent international organisation referred to in many of the UNCLOS provisions regarding the

regulation of vessel-source pollution.102 It sponsors internationally recognised

common standards for the regulation of shipping safety and environmental protection by coastal and flag States. The resulting treaties are regarded as an

essential albeit indirect means of reducing marine pollution.103 Apart from the

IMCO Conventions mentioned earlier, this study will discuss the 1966 International Convention on Load Lines, the 1972 Convention on the International

Regulations for Preventing Collisions at Sea, the 1974 Safety of Life at Sea Convention, the 1989 International Salvage Convention, the 1990 Oil Pollution

Preparedness, Response and Cooperation Convention concluded in the wake of

the Exxon Valdez disaster, and the 1996 International Convention on Liability

and Compensation for Damage in Connection with Hazardous and Noxious Substances by Sea.

B. Freshwater Resources. The body of international conventional rules on

watercourses and other freshwater resources is extensive.104 However, many are

contained in treaties with a more general purpose, such as those regulating

boundary matters between States.105 There are very few agreements devoted exclusively to the protection of waters against pollution. In addition, although there

are many examples of regional co-operation, there are no specific regional régimes, apart from the area covered by EC law.

Any discussion of global rules on the protection of freshwater resources will

have to include the Convention on the Law of the Non-Navigational Uses of International Watercourses, adopted in 1997 by the UN General Assembly,106 on

the basis of a draft prepared by the ILC over a period of more than 20 years.107 Its

objective is to ensure the utilization, development, conservation, management

and protection of international watercourses and the promotion of sustainable

utilisation thereof for present and future generations.

As is the case for many recent international instruments, the 1997 Watercourse

Convention is a framework agreement. It contains various general principles for

the utilisation of international watercourses: equitable and reasonable utilisation

and participation, the obligation not to cause significant harm, a general obligation to co-operate and to regularly exchange data and information, and the

principle that in the absence of agreement or custom to the contrary, no use of an

international watercourse enjoys inherent priority over other uses.108 The convention also lays down detailed obligations for States to exchange information

and consult each other, and if necessary, to negotiate on the possible effects of

planned measures regarding the watercourse.109 It has several specific

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environmental protection provisions. Accordingly, watercourse States need to

“protect and preserve the ecosystems of international watercourses,”110 prevent,

reduce, and control the pollution of international watercourses,111 prevent introduction of alien or new species, and take all measures with respect to an

international watercourse that are necessary to protect and preserve the marine

environment, taking into account generally accepted international rules and standards.112 Finally, there are provisions on emergency situations,113 an article on

armed conflict,114 and an annex on arbitration.

A detailed examination of the extent to which this convention codifies customary international law, and which provisions should be regarded as innovative, is

beyond the scope of this work. In the literature, the following principles and rules

are generally regarded as reflecting customary international law: the principle of

common, equitable, and reasonable utilisation of shared water resources,115 endorsed by the ICJ in the Gabcíkovo-Nagymaros Project case,116 the obligation to

prevent (serious) harm to other States, and several principles of transboundary

environmental co-operation.117 Furthermore, there is important international

case law relating to international watercourses, some of which will be examined

below.118

It is noteworthy that there is little support for the view that pollution of international watercourses would be unlawful per se. Instead, the modern trend is to

require States to regulate and control river pollution, whilst prohibiting only certain discharges and distinguishing between old and new sources.119 Pollution is

only unlawful if it causes (serious) harm to other (riparian) States. For instance,

Article 7 of the 1997 International Watercourse Convention stipulates firstly that

watercourse States need to take all appropriate measures to prevent the causing of

significant harm to other watercourse States; and secondly, should significant

harm nevertheless occur, that they need to take all appropriate measures in consultation with the affected State to eliminate or mitigate harm and, where

appropriate, discuss compensation.120 The ILC does not view the causing of significant harm as necessarily unlawful per se, but regards equitable utilisation as

the overriding guiding principle.121 This includes cases of pollution, pursuant to

Article 21(2) of the convention and the ILC’s commentary thereon.122 As a result,

even significant harm may have to be tolerated by a watercourse State.123

Nevertheless, the 1997 Convention also contains environmental protection

provisions which are not concerned with other riparian States: Article 20 on the

obligation to protect and preserve the ecosystems of international watercourses;

Article 22 on the introduction of alien or new species, and Article 23 on the protection and preservation of the marine environment. Although the threshold of harm

in Articles 20 and 23 is not specified, 124 none of these provisions set absolute

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standards, for they are subject to the general principle of equitable utilisation.125

Whatever their current legal status,126 it is clear that the benefits of these provisions will extend beyond the interests of riparian States.127 The inclusion of

measures aimed at protecting environmental resources per se is an emerging trend

in IEL, which, as will be seen below, is developing rules transcending the traditional question of transfrontier pollution.128

C. Biodiversity. The body of international rules concerning biological diversity is formed by rules adopted at the local, national, bilateral, sub-regional,

regional, and global level. Biodiversity is a recently developed term and is usually

understood as comprising three notions: genetic diversity, species diversity, and

ecosystem diversity.129 It covers the older terminology “wildlife” or “living” natural resources, which were distinguished from non-living natural resources by

the fact that they are renewable if conserved and destructible if not.130

There are important differences between marine and terrestrial régimes. Marine biodiversity is often considered common property or shared resources and

particularly vulnerable to over-exploitation. In response, international law tends

to stress obligations of conservation and equitable utilisation. Important provisions on marine life can be found in conventions which deal with fisheries

conservation such as the 1946 International Whaling Convention,131 or with an

even broader purpose, such as 1982 UNCLOS.

132 International regulation of terrestrial biodiversity is generally more difficult because it requires limiting the

principle of States’ permanent sovereignty over their natural resources. To justify

such interference, international treaties resort sometimes to concepts as “common concern,” “common heritage” and even “animal rights.”133

Until recently, wildlife conservation implied a very partial ad hoc approach

consisting of targeting wildlife species identified as threatened with extinction.

Proper conservation of biodiversity, which implies maintaining viable populations of species is now generally thought of as requiring complex sustainable and

flexible strategies, which include plants, animals, micro-organisms, and the

non-living elements of the environment on which they depend.134

The most important multilateral treaties aimed at habitat preservation are the

1971 Convention on Wetlands of International Importance (Ramsar Convention)

and the 1972 Convention for the Protection of the World Cultural and Natural

Heritage (World Heritage Convention). Important treaties which focus on species

protection are the 1973 Convention on International Trade in Endangered Species (CITES) and the 1979 Conservation of Migratory Species of Wild Animals

(Bonn Convention). Finally, the 1992 Biodiversity Convention aims at setting an

overall framework for this area of the law.

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The purpose of the 1971 Ramsar Convention is the conservation and the enhancement of a particular type of habitat important for waterfowl.135 Without

prejudice to their sovereign rights, State parties must designate at least one wetland of international significance in terms of ecology, botany, zoology, limnology,

and hydrology for inclusion in a List of Wetlands of International Importance.136

The deletion or restriction of listed wetlands is permitted on grounds of “urgent

national interest,” but must take into consideration the “international responsibilities for the conservation, management and wise use of migratory stocks of

waterfowl,”137 and Parties need to compensate, as far as possible, for any loss of

wetland resources, e.g., by creating additional nature reserves.138 Parties are also

under a number of general obligations: to promote the conservation of listed

wetlands, and as far as possible, the “wise use of wetlands on their territory,” to establish nature reserves, to endeavour to increase waterfowl populations, and to

exchange information at the earliest possible time on changes in the ecological

character of listed wetlands.139 Because of their general nature, the provisions of

the Ramsar Convention are considered weak and have given rise to problems of

interpretation.140 Nevertheless, by 29 March 1998, the convention had 106

Parties and protected 903 wetland sites.141

The World Heritage Convention—adopted in 1972 under UNESCO auspices—also works on the basis of recording sites. Although its provisions are

more stringent than the Ramsar Convention, it has more Parties.142 The convention’s guidelines for the identification of natural heritage are based on physical

characteristics of outstanding universal value.143 Each State party needs to identify cultural and natural heritage sites on its territory,144 but listing is subject to a

decision by the World Heritage Committee, which may also consider financial

implications.145 Apart from the main inventories of national and cultural heritage,146 a list of special “World Heritage in Danger” is maintained for sites

threatened by serious and specific dangers, such as the outbreak or threat of

armed conflict.147 As a result of the latter type of threat, the Old City of

Dubrovnik in Croatia, the Virunga Natural Park, and the Okapi Wildlife Reserve

in the Democratic Republic of the Congo were included in this special list.148

Each State party needs to adopt a national programme for the protection of its

natural and cultural heritage.149 In addition, State parties “recognise that such

heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate and to lend their assistance

thereto.”150 Importantly, State parties undertake “not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage

situated on the territory of other parties to the convention.”151 The convention

further establishes an Intergovernmental Committee and a fund for the

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protection of the heritage in question, and procedures under which State parties

can request international assistance.152

By 1 June 1997, a total of 169 States had become Parties to the 1992 Convention

on Biological Diversity.153 Under this agreement, which applies expressly both

within the limits of national jurisdiction and beyond,154 Parties undertake a

number of general obligations. In accordance with their particular conditions and

capabilities, they need to develop national strategies, plans or programmes for the

conservation and sustainable use of biodiversity, and integrate, “as far as possible

and as appropriate,” these strategies into other relevant sectoral and cross-sectoral

plans.155 Furthermore, each Party shall, “as far as possible and as appropriate,”

engage in identification of biodiversity and in monitoring,156 adopt in situ and ex

situ conservation measures,157 use components of biological diversity in a sustainable manner,158 adopt incentive measures,159 establish programmes for research

and training,160 engage in public education and awareness,161 introduce environmental impact assessment procedures for proposed projects, and take measures to

minimise adverse impacts.162 In respect of areas beyond national jurisdiction and

on other matters of general interest, Parties undertake to co-operate “as far as possible and as appropriate” either directly or through international organisations.163

The convention also contains a number of other provisions that have led some

States, most notably the United States, to decide initially against signing the convention:164 Article 19 on the handling of biotechnology and the distribution of its

benefits and Articles 20 and 21 on financial resources.165 Furthermore, Article 22

(1) stipulates that the convention shall not affect rights and obligations of any

Contracting Party deriving from any existing international agreement, “except

where the exercise of those rights and obligations would cause a serious damage or

threat to biological diversity.”166 In the Gabcíkovo-Nagymaros Project case, Hungary relied, inter alia, on this provision to justify suspension and termination of a

bilateral treaty concluded in 1977.167 Whilst Hungary called this a jus cogens type

of c1aim,168 the ICJ has rejected this argument implicitly.169 Moreover, it should

be noted that Article 22 (2) gives preeminence to the law of the sea with respect to

marine biodiversity, thus casting doubt on the alleged peremptory character of

the entire provision.170

Of particular note are a series of conventions adopted through the Council of Europe, and certain EC regulations. They constitute to date the only international

instruments that protect animals from suffering and are inspired—though not exclusively—by ecocentrist and even animal-rights theories. These include the

1968 Convention for the Protection of Animals during International Transport,

the 1979 Convention for the Protection of Animals for Slaughter, and the 1987

Convention for the Protection of Pet Animals.

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In conclusion, there is an overwhelming number of treaties on wildlife protection, ranging from the local to the global level, addressing a great variety of

situations and methods. They have attracted wide differences in international

support and are not always implemented and enforced in satisfactory ways.171

Some authors claim that most States accept the need to co-operate in the protection of living resources, to act in good faith as good neighbours, and that they have

to arrange some form of equitable use of shared living resources. There is also considerable agreement on certain conservation strategies and principles. Beyond

that, it remains controversial whether general international law requires States to

take appropriate steps to protect endangered land-based species.172 As for marine

biodiversity, it has been argued that the consensus underlying the relevant provisions of 1982 UNCLOS and subsequent practice173 show that States have accepted

the general obligation to conserve marine species, but some authors question the

effectiveness of the régime.174

D. Air Quality, the Atmosphere and Climate Change. The treaty régime

in regard to air quality, the atmosphere, and climate change is of recent origin and

consists of one specific regional and two global framework agreements. There are

mainly three problems that have inhibited the development of a proper legal

régime. First, the degradation of the atmosphere and the likelihood of ensuing

climate change, as well as its causes, have long remained a subject of debate among

scientists.175 Secondly, the legal status of the atmosphere in international law is

unsettled,176 for it is a fluctuating and dynamic air mass that partly overlaps with

the airspace above States territory and which lies partly beyond national airspace,

without forming part of Outer Space.177 Thirdly, control of transboundary air

pollution requires both developing and developed States to make difficult choices

and sacrifices in terms of economic and industrial policy. It is for the latter reason

that until the mid-1980s many States refused to agree to firm measures unless

there was clear scientific evidence of harm. Despite these problems, by 1997 the

great majority of States had ratified the two global framework agreements, including the attached protocols.

Over thirty countries in the Northern Hemisphere, from both Western and

Eastern Europe as well as Canada and the United States, are parties to the Geneva

Convention on Long-Range Transboundary Air Pollution (LRTAP), concluded in

1979 under UN/ECE auspices in response to the growing problem of acid rain. The

convention provides a framework for co-operation and development of pollution

control measures, although the language of many of its commitments is weak.178

Parties undertake to protect Man and his environment against air pollution and,

as far as possible, endeavour to limit, gradually reduce and prevent air

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pollution.179 They agree to exchange information and to review their policies, scientific activities, and technical measures aimed at combating pollution,180 to

engage in consultations at an early stage in cases of actual or significant risk of

long-range transboundary air pollution,181 and to notify of major changes in policy

or industrial development likely to cause significant changes in long-range air pollution.182 The convention is supplemented by four protocols.183 Despite its many

weaknesses, the LRATP Convention is considered a qualified success.184

The Vienna Convention for the Protection of the Ozone Layer was concluded

in 1985 under UNEP auspices. The convention primarily requests that Parties take

appropriate measures to protect human health and the environment against adverse effects resulting or likely to result from human activities that modify or are

likely to modify the ozone layer.185 To this end, and in accordance with the means

at their disposal and their capabilities, Parties agree to co-operate in harmonising

policies and in formulating agreed measures, procedures, and standards for the

implementation of the convention.186 Like the LRTAP Convention, the Vienna

Convention is a compromise between demands by some States for firm commitments and requests by others for further study of the problem.187 Its significance

lies in the fact that it is concerned with the global environment, that it recognises

the impact of ozone depletion on climate change,188 and the importance of ecosystems independent of their utility to Man.189 It also alludes to the need for

precautionary measures, i.e., for preventive action even in the absence of firm

proof of harm.190

The Montreal Protocol on Substances that Deplete the Ozone Layer—agreed

in 1987 following new and alarming scientific evidence—is considered more important than the convention itself: it sets firm targets for reducing and

eliminating consumption and production of a number of ozone-depleting substances and has the elimination of (all) ozone-depleting substances as its final

objective.191

Amendments and adjustments adopted in 1990 and 1992 brought the timetables forward and added new controlled substances. As a result, production and

consumption of ozone-depleting substances such as chlorofluorocarbons (CFCs)

and halons were to be totally phased out by 1 January 1996. While the Montreal

Protocol initially allowed for delayed compliance by developing States, the latter

were subsequently given financial and technical incentives to accelerate their

compliance.192 Furthermore, the protocol controversially bans trade in controlled

substances with non-parties193 and contains innovative flexible institutional provisions.194 It entered into force on 1 January 1989, when 29 countries and the EEC

representing approximately 82 percent of world consumption ratified it. By 25 February 1997, 161 States ratified the convention and the protoco1.195

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The 1992 UN Framework Convention on Climate Change acknowledges in its

preamble that climate change and its adverse effects are a “common concern of

humankind.” By 28 February 1998, it counted 174 State parties.196 While the convention recognises that climate change occurs naturally, its objective is to prevent

dangerous anthropogenic interference with the climate system.197 Guiding principles are set out in Article 3. These are: (1) the protection of the climate system

for the benefit of present and future generations of humankind, on the basis of equity and in accordance with the common but differentiated responsibilities and

respective capabilities of developed and developing States; (2) the specific needs

of developing country Parties; (3) the need to take precautionary measures; (4)

the need for sustainable development; and (5) the different socio-economic

contexts.

The convention contains a number of general commitments comparable to the

Vienna Convention: inter alia, development of national programmes, environmental impact assessment, international co-operation, consultation, information

exchange and reporting.198 Although the stringency of the relevant provisions

has been a matter of debate,199 specific commitments were agreed to stabalise

greenhouse gases in the atmosphere at a safe level and to limit emissions of these

by developing countries in accordance with soft targets and timetables.200 In December 1997, the Conference of the Parties adopted a first (Kyoto) protocol,

containing 1egalIy binding emissions targets for developed countries for the

post-2000 period.201

E. Conclusions. The newest treaty régimes on marine pollution, freshwater

resources, biodiversity, and protection of the atmosphere show that IEL is moving

away from the sectoral and ad hoc approaches of the 1960s and 1970s. Increasingly,

more complex environmental challenges are addressed in which difficult scientific, economic, and political questions are intertwined. In response, innovative

legal and institutional devices have been developed: e.g., the framework approach

whereby the regulation for a specific environmental sector is specified in a dynamic sequence of protocols to the base treaty; or a commitment by the Parties to

make use of the “best available technology,” or to accept standards and thresholds

negotiated internationally at expert level, or to accept lists of toxic or hazardous

substances according to variable criteria of acceptability of harm.202

For reasons of space, the above overview has primarily been concerned with

the regulation of specific environmental media and resources, concentrating on

the marine environment. It has not dealt with the special treaty régimes of certain

international areas as Outer Space and Antarctica nor with the emerging body of

treaties on specific products or particular activities, such as hazardous substances,

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nuclear energy, biotechnology, environmental impact assessment, and accident

preparedness and response.203 Nevertheless, many of the latter treaties will be addressed throughout this work.

1.2.2. General Principles and Rules

What I propose to examine in this section are the general environmental rights

and obligations of States that flow from principles and rules purportedly common

to all environmental sectors.

A. Principle 21 of UNCHE. There is widespread agreement that the cornerstone of modem IEL is formed by two important rules addressed to States,

enunciated by Principle 21 of the Stockholm Declaration:

States have, in accordance with the Charter of the United Nations and the principles

of international law, the sovereign right to exploit their own resources pursuant to

their own environmental policies, and the responsibility to ensure that the activities

within their jurisdiction or control do not cause damage to the environment of other

States or of areas beyond the limits of national jurisdiction.

The first part of this provision captures one of the basic tenets of international

law and applies it to the environment: it is the sovereign right of States to control

and regulate the exploitation of resources within their territory. This proclamation finds its origin in numerous General Assembly resolutions and international

instruments dealing with the right to self-determination of States. In accordance

with these, self-determination includes, of necessity, “permanent sovereignty

over their natural wealth and resources.”204 The second element of the principle

places an important limit on the seemingly broad interpretation of State sovereignty over their resources. It balances States’ rights over their own environment

with the responsibility towards the environment of other States and areas beyond

national jurisdiction.

The Stockholm Declaration is a non-binding text, but Principle 21 is regarded

as customary international law. In fact, many believe that it reflected existing international law at the time of its formulation, in 1972.205 Indeed, the second

(limiting) element of Principle 21, which prohibits transfrontier pollution, is generally regarded as descending from general concepts of the rights and duties of

States. It derives in the first place from the general principle of international

law—applied by Huber in the 1928 Island of Palmas case—206that every State

must respect the sovereignty and territorial integrity of other States.

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The prohibition of transfrontier pollution is also based on the doctrine which

prohibits abuse of rights207 and the general principle of law of good neighbourliness: sic utere tuo ut alienum non laedas (“so use your own property that you do not

injure the property of another”).208

In addition, the prohibition of transfrontier pollution is generally regarded as

firmly rooted in the conclusions or obiter dicta of certain long-standing and

well-known judicial precedents. First and foremost among these is the Trail

Smelter award rendered on 16 April 1938 by the U.S.-Canada International Joint

Commission. One of the first judicial decisions to deal with transboundary air

pollution, it concerned a long-running dispute over damage to crops, pasture,

land, trees, and agriculture on U.S. territory caused by sulphur dioxide emissions

from a smelting plant in Canada. Relying on the Palmas case award, the tribunal

held in an oft-quoted passage that:

. . . no State has the right to use or permit the use of its territory in such a manner as

to cause injury by fumes in or to the territory of another or the properties or persons

therein, when the case is of serious consequence and the injury is established by clear

and convincing evidence. . . .209

It should be noted though, that the precedential value of this statement was

somewhat diminished since Canada had previously acknowledged responsibility

for the damage in the arbitral compromis. The main task of the tribunal was to assess and measure the damage and to determine a means of redress, but not to

determine legal responsibility.

Other legal antecedents for Principle 21 can arguably be found in the Corfu

Channel case, the Lac Lanoux arbitration and the Gut Dam Claims arbitration. In

the first of these, the ICJ was requested to consider, inter alia, an incident in which

war vessels belonging to the UK were struck by mines while passing through the

Corfu Channel, a strait in Albanian waters used for international navigation. Albania knew that the strait was mined but failed to prevent or remedy the situation

and did not notify other States of the danger. In a famous obiter dictum, the ICJ held

that every State is under the obligation:

. . . not to allow knowingly its territory to be used for acts contrary to the rights of

other States.210

The Lac Lanoux arbitration (1957) concerned a dispute between France and

Spain over a proposal by the former to permit the construction of a barrage on an

international waterway on its territory. Spain claimed infringement of her rights

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as a downstream State because the project would involve diversion of upstream

waters, and argued that France should obtain Spain’s prior authorisation. The tribunal, while holding that the proposed works did not infringe Spanish rights,

stated nevertheless that:

. . . there is a principle which prohibits the upstream State from altering the waters

of a river in such a fashion as seriously to prejudice the downstream State. . . .211

Much the same principles were at issue in the Gut Dam claims arbitration.

With U.S. permission, Canada had embarked in 1903 on the ill-fated construction

of a dam on the St. Lawrence Seaway. Over the years the dam would cause extensive erosion and flooding on both Canadian and U.S. territory. The resulting

claims for damages by the United States would fester until 1965, when the Lake

Ontario Claims Tribunal was established to resolve the matter. The tribunal relied heavily on the prior authorisation of the project by the United States, but also

on the acknowledgement of responsibility by Canada. It declared Canada liable,

inter alia, for the injuries sustained by U.S. citizens without, however, finding

fault or negligence on its part.212

The principles identified in the “Trail Smelter” case also received support

from the practice of States before 1972. In 1966 Austria lodged a strongly worded

diplomatic protest over damage caused by mines laid close to the Austrian border,

accusing Hungary of:

. . . violating the uncontested international legal principle according to which

measures taken in the territory of one State must not endanger the lives, health and

property of citizens of another State.213

In another incident prior to 1972 UNCHE, Canadian beaches were polluted by

an accidental oil spill of 12,000 gallons of crude oil into the sea at Cherry Point in

the State of Washington. Turning the tables on the United States, the Canadian

government pointed to the “principle established in the Trail Smelter arbitration,” claiming that it had been accepted by a considerable number of States and

expressing hope that it would be accepted at UNCHE as “a fundamental rule of

international environmental law.”214

The formula of Principle 21 has, since UNCHE, been repeated—often verbatim—in numerous binding215 and non-binding international instruments.216

Therefore, unlike for some of the other principles which will be discussed below,

the majority of the current specialist doctrine has little difficulty with the customary law status of Principle 21.217

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In connection with the requests by the World Health Organisation and the UN

General Assembly for an advisory opinion regarding the Legality of Nuclear

Weapons, several States had sought to minimise the importance of Principle 21 by

stressing that it formed part of a non-binding text.218 Their opponents maintained that the Principle formed part of customary international law.219 In reply

to these submissions, the ICJ held that:

The existence of the general obligation of States to ensure that activities within their

jurisdiction and control respect the environment of other States or of areas beyond

national control is now part of the corpus of international law relating to the

environment.220

Whilst the Court had already recognised in an earlier case that States are under

the obligation to “respect and protect the natural environment,”221 the above

statement is significant for it was made by the Court in a legal opinion on armed

conflict and the use of nuclear weapons. The ICJ believes that even in these extreme circumstances the environmental obligations in question continue to be

binding upon States. Nevertheless, the Court’s formulation does not correspond

verbatim to the wording of Principle 21. While the latter deals with the obligation

to avoid damage to the environment of other States or of areas beyond national

control, the Court uses a more general formula stressing the obligation to ensure

respect for these environments. Whether this distinction will be perceived as significant remains to be assessed. In any event, the Court repeated its view on the

matter in its decision on the Gabcíkovo-Nagymaros Project case.222

B. Corollary Principles. The “acquis” of customary IEL, as laid down in the

second part of Principle 21, entails several corollary duties for States. In the first

place there exists a duty, variously described as the “no-harm principle” or the

“principle of harm prevention,”223 or the “principle of preventive action,”224 according to which States are obliged to prevent environmental harm before it

occurs, and reduce and control pollution and environmental harm when it occurs.

While the prior customary rule obligated States to make reparation for actual

transboundary harm, the harm prevention principle demands that States first and

foremost, take suitable preventive measures, e.g., through national legislation, to

protect the environment.225

Secondly, there is the “principle of co-operation,”226 sometimes referred to as

the “principle of transboundary cooperation in cases of environmental risk,”227

or more generally as the “principle of good neighbourliness” and “international

co-operation.”228 The duty of international cooperation can be said to underlie all

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international (environmental) law. Pursuant to this requirement, States need to

co-operate in mitigating environmental risks and emergencies. This is now understood as entailing several procedural duties such as the requirement to notify

other States and to consult with other States in cases of transboundary risk of environmental damage, and particularly in the case of accidents and emergencies

likely to cause transboundary harm.229 It may also entail specific commitments

such as the duty to conduct an environmental impact assessment (EIA), and the

duty to exchange information.230 The principle of co-operation and its corollary

principles of prior consultation based on adequate information are particularly

firmly established in the law of international watercourses.231

However, it should be noted that the universality and the scope of these procedural requirements is not beyond controversy.232 The purported duty to

conduct an EIA has been invoked before the ICJ in two recent cases. In 1995, New

Zealand filed a request for an Examination of the Situation in Accordance with

Paragraph 63 of the Court’s 1974 Judgement in the Nuclear Tests case, accompanied

by a request for provisional measures. The basis of New Zealand’s petition was

that a series of nuclear tests planned by France would lead to the same sort of radioactive contamination that had been brought before the Court in 1973. New

Zealand claimed, inter alia, that it was unlawful for France to conduct further

underground nuclear tests before undertaking an EIA “according to accepted international standards,” and that unless such an assessment established that the

tests would not give rise, directly or indirectly, to radioactive contamination of

the marine environment, the rights under international law of New Zealand, as

well as the rights of other States, would be violated. The Court was also requested to order France to conduct such an EIA and, unless this process

established that the tests would not give rise to radioactive contamination of the

marine environment, to order France to refrain from conducting the disputed

tests.233

In its order of September 22, 1995, the Court dismissed New Zealand’s action

without entering into the merits of these claims. It held that whilst the 1974 case

dealt with atmospheric nuclear tests, the case at hand concerned underground nuclear tests and that it followed that the latter could not be linked to the former.234

Nevertheless, in his dissenting opinion, Judge Weeramantry argued that the

“principle of continuing environmental impact assessment” was gathering

strength and international acceptance and that it had reached “the level of general

recognition at which the ICJ should take notice of it.”235 Likewise, in his dissenting opinion, Judge Palmer claimed that EIA was a process to comply with the

international legal duty to establish that a planned activity does not involve unacceptable environmental risks.236

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In the 1997 Gabcíkovo-Nagymaros Project case, Slovakia claimed that the purpose of an EIA was merely to provide decision makers with information on

potential environmental impacts, and that it was still in the process of development—even in Europe.237 Hungary, by contrast, called it a procedural norm that

by 1989 had become “an accepted means” for ensuring that projects of the disputed type did not cause “untoward environmental damage.”238 In its judgement,

the Court did not dwell on the issue of EIA directly. But having observed that the

disputed project’s impact upon, and its implications for the environment were a

key issue, the Court held that in order to evaluate its environmental risks, “current standards must be taken into consideration.”239

C. Contribution of the Rio Declaration. The Rio Declaration reaffirmed

and developed—albeit in qualified terms—Principle 21 of the Stockholm Declaration. Principle 2 of the 1992 Declaration reads:

States have, in accordance with the Charter of the United Nations and the principles of

international law, the sovereign right to exploit their own resources pursuant to their

own environmental and developmental policies, and the responsibility to ensure that

activities within their jurisdiction or control do not cause damage to the environment of

other States or of areas beyond the limits of national jurisdiction.

The difference between Principle 21 and Principle 2 is that, while according to

the former, States have the sovereign right to exploit their own resources according to their own environmental policies, the Rio Declaration adds the phrase

“pursuant to their own developmental policies.”240 Whether this addition

strengthened or weakened the earlier formulation is unsettled.241 Several international instruments adopted at the Rio Conference and others thereafter have kept

to the earlier formula of Principle 21,242 thereby casting doubt on the general acceptance and therefore on the legal status of its Rio update.

Although the Stockholm Declaration also addressed development issues,243 the

Rio Declaration will be remembered for elevating, amongst others, the principle of

sustainable development to a fundamental concept of environmental policy. The

need for “sustainable development” was one of the centrepieces of the 1987 report

produced by the World Commission on Environment and Development (WCED),

also known as the “Brundtland Commission.”244 In this report, entitled Our Common Future, WCED synthesised and defined sustainable development as:

. . . development that meets the needs of the present wtihout compromising the

ability of future generations to meet their own needs.”245

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In the Gabcíkovo-Nagymaros Project case, both Hungary and Slovakia claimed

to be concerned with ensuring sustainable development. The former called it a

concept that only emerged as a legal term in 1987, following the WCED report, and

given formal and widespread legal recognition by the 1992 Rio Declaration.246

Slovakia suggested that the principle was devoid of legal status247 and that all it

entailed was a new approach to reconciling economic development with environmental protection.248 In its judgement, the Court gave no more than a moral

boost to the concept of sustainable development when commenting on mankind’s

constant interference with nature. It explained that the need:

. . . to reconcile economic development with protection of the environment is aptly

expressed in the concept of sustainable development. . . .249

There are other important principles of public policy which have been put in

relief on a global level with respect to all environmental sectors in the Rio Declaration, among which: inter-generational equity,250 public participation at the

relevant level,251 the precautionary approach,252 a qualified version of, the polluter pays principle,253 and the principle of common but differentiated

responsibility of developed and developing States.254 All of these principles had

previously received recognition to varying degrees through adoption in declarations of principles, programmes of action, and even in some international treaties.

On this basis, the “polluter pays” principle is regarded as regional custom, because of the strong support it has received in most OECD and EC countries.255

Furthermore, a case is sometimes made that the precautionary principle constitutes (emerging) customary law.256 However, it is doubtful whether the

principle forms part of present international 1aw.257 First, there seems to be no

uniform understanding of its meaning beyond the basic premise that it reflects a

“better safe than sorry approach” to counter the belief that States are not bound to

act until there is clear and convincing scientific proof of actual or threatened

harm to the environment.258 Three possible interpretations of the precautionary

principle are advocated. At its most restricted, it represents a more developed

form of the preventive principle: States are to act carefully and with foresight in

taking decisions concerning activities that may have adverse environmental consequences.259 A wider interpretation is that it lowers the threshold of proof,

requiring State action in the face of foreseeable harm, even if there is no 100 percent scientific certainty.260 The most radical construction implies a complete

reversal of the burden of proof: it would become impermissible for a State to carry

out an activity unless it can be shown that this will not lead to unacceptable harm

to the environment.261

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Secondly, it is significant that after much debate, the UNCED delegates decided

to settle for the term precautionary approach instead of principle, thereby casting

doubt on its legal status. They nevertheless agreed on a formulation in line with

the above view regarding the lowering of the burden of proof. Principle 15 of the

Rio Declaration reads:

In order to protect the environment, the precautionary approach shall be widely

applied by States according to their capabilities. Where there are threats of serious

irreversible damage, lack of full scientific certainty shall not be used as reason for

postponing cost-effective measures to prevent environmental degradation.

The precautionary principle has been relied on in two recent cases brought before the ICJ. In her 1995 request for an Examination of the Situation, New Zealand

invoked the most radical interpretation of the principle, arguing that it required

France to carry out an EIA as a precondition for undertaking nuclear tests and to

demonstrate that there was no risk associated with them.262 The Court did not enter into the merits of this assertion, but in their dissenting opinions, Judges

Weeramantry and Palmer maintained that the principle constituted emerging

customary law.263

In the 1997 Gabcíkovo-Nagymaros Project case, Hungary claimed that the precautionary principle formed part of customary international law and that it had

evolved into an erga omnes obligation of prevention of damage, precluding her

from performing a treaty concluded in 1977 with Czechoslovakia.264 Given the

“scientific uncertainty,” but “with credible risks and damages,” and with “valid

concerns over vital interests,” Hungary maintained that in the light of “the preventive and precautionary approach,” her fears for future damage constituted the

“grave and imminent peril” required for the state of necessity under international

1aw.265 Slovakia urged more caution with respect to the legal status of the principle, emphasising that it was never intended to disrupt treaty relations, and

entailed at most a lowering of the threshold of proof in the face of foreseeable serious or irreversible damage.266

In its judgement, the Court noted first that neither Party claimed that new peremptory norms of environmental law had emerged since 1977.267 The Court may

thus have accepted Slovakia’s argument that the precautionary approach/principle, even if it reflects customary international law, does not prevail over treaty

obligations. Furthermore, it rejected Hungary’s assertion that the many uncertainties regarding the ecological impact of putting in place the disputed barrage

system, however serious they might have been, fulfilled the objective requirements of a “state of (ecological) necessity” under international 1aw.268 The Court

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did not accept that in environmental matters the standard of proof in international law regarding the foreseeability of harm or damage should be lowered.

In conclusion, it should be noted that the majority of the specialist doctrine is

cautious about the legal status of the principles (apart perhaps from Principle 2 insofar as it affirms Principle 21) enunciated in the Rio Declaration. They are

neither general principles of law nor are they considered to be universal principles of customary international environmental law. Some may be no more than

expressions of desirable public policy, others may be binding only as a matter of

treaty law while still others may constitute emerging international law. On the

whole, whether they give rise to actionable obligations of a general nature is open

to question.269 The uncertain legal status of the principles of the Rio Declaration

was confirmed in a document prepared for the 1997 UN General Assembly Special Session.270

It was seen earlier that the international community has repeatedly failed to

agree on a uniform set of legal principles of environmental protection.271 It may

therefore not come as a surprise that the above review shows that there are very

few general principles and rules that cover all environmental sectors. The only

undisputed set of rules that may be said to have achieved such a status are the obligations reflected in Principle 21 of the Stockholm Declaration, and in particular,

the prohibition of transfrontier pollution.

D. The Prohibition of Transfrontier Pollution in State Practice. The next

step is to look at the implementation of the prohibition of transfrontier pollution

in State practice. A traditional indicator of the extent to which States implement

international law is to examine what happens when the law is violated.272 According to the law of State responsibility,

Every internationally wrongful act of a State entails the international responsibility

of that State.273

Furthermore, in accordance with the well-known holding of the Chorzow Factory (Indemnity) case, the consequence of State responsibility is State liability,

meaning the duty to make reparation:

It is a principle of international law, and even a general conception of law, that any

breach of an engagement involves an obligation to make reparation. . . .274

Although the body of multilateral environmental agreements is growing, it is

clear that not every instance of environmental harm will be covered by a

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specialised treaty.275 In addition, even if there is a relevant treaty, it is often the

case that the author State is not a party to it, or that the treaty places no binding

obligation on the State to prevent such damage.276 In such instances, the customary principles of IEL should provide a safety net. The law of State responsibility

covers both hypotheses: States must make reparation, including the payment of

compensation, for damage caused by any wrongful act, regardless of the source of

the obligation (treaty or custom).277

In application of the above, State practice should indicate that breach of any of

the identified “environmental” obligations entails the responsibility of the author State, as well as its duty to make reparation. Yet it seems that States are

extremely reluctant to recognise responsibility for transbounary harm on the basis of the above rules of customary international environmental 1aw.278 States

have even been surprisingly reticent about pursuing claims inter se for particular

grievous instances of transfrontier damage.279

Following the April 1986 accident at the Chernobyl nuclear power station in

the Ukraine, radioactive air pollution was caused over the territory of some

twenty countries, with noticeable impacts across the whole of Europe from southern Italy to northern Scotland and Scandinavia. Although several European

States—including the UK and the FRG—reserved their right to do so, none has

presented a claim to the former USSR for the serious transboundary nuclear contamination caused by the accident.280

The implementation of the above principles of customary international law is

equally hesitant in treaty practice. The 1979 LRTAP Convention famously contains a footnote stating that it “does not contain a rule on state liability as to

damage.” Traditionally, States have been willing to consider environmental damage liability régimes only on a case-by-case basis, and only when it proved

indispensable for the economic viability of a specific risk-creating activity, such

as the nuclear industry and maritime transport of oil.281 This ad hoc approach was

set aside only recently in a regional instrument, the 1993 Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the

Environment (Lugano Convention). Significantly though, this treaty proves remarkably unsuccessful. Although it requires only three ratifications for its entry

into force, by April 1998 not a single State had done so.282

Furthermore, State intervention in the area of environmental damage has

rarely resulted in the establishment of a compensation régime based on State liability. There is only one treaty that establishes clear rules of State liability in case

of environmental damage: the 1972 Convention on International Liability for

Damages Caused by Space Objects (Space Objects Liability Convention), which

stipulates unlimited or “absolute” international State liability for damage caused

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on the surface of the earth or to aircraft in flight.283 This is, however, a unique

treaty that deals with highly sensitive political and military matters. Its conclusion should not be taken as proof that States are generally willing to accept

liability for environmental damage.284

In the overwhelming majority of cases, State intervention has resulted in the

setting up of a régime of “civil liability.” A “civil liability” régime is one in which

liability for environmental damage is channelled to private operators or other sections of the industry, leaving the issue of State liability frequently unanswered,

except when States themselves act as private operators. Good examples of this are

the conventions concluded in the aftermath of the Torrey Canyon disaster. In accordance with the 1969 Civil Liability Convention and the 1971 Fund

Convention, liability for maritime transport of oil is currently borne entirely by

the profit gaining industry.285 The most ambitious example of a pure civil liability régime, in terms of scope of activities, is the above-mentioned 1993 Lugano

Convention.

International negotiations have less frequently led to mixed State/civil liability

régimes.286 This is the case of the nuclear industry, where States have agreed to

complement private operator liability in response to industry demands.287 It is

noteworthy though that many of these conventional mixed régimes have either

not entered into force or have, at best, a marginal relevance in practice because of

the limited number of contracting Parties.288

It is safe to state that there are still many difficulties in translating States’ environmental obligations—i.e., State responsibility—into principles and standards of

liability.289 This is due partly to many fundamental legal and technical problems

that remain unresolved.290 Thus, it is still a matter of serious controversy whether

State liability arises only upon breach of a “primary obligation” of States or whether

liability is contingent upon the causing of damage, irrespective of breach of a primary obligation.291 Another unresolved issue relates to the nature of this primary

obligation: is it a standard of due diligencethat should be required from States or, instead, an absolute duty to prevent damage? If possible defences are allowed, the

options for standards of care with respect to State environmental obligations include: (a) a fault-based standard covering both intention or negligence; (b) strict

liability, which is a prima facie responsibility allowing for various qualifications and

defences and (c) absolute liability, which does not allow for any exculpation.292

Finally, a large volume of literature is devoted to the threshold question.293 As

recognised by the above-mentioned Working Group on environmental damage

arising from military activities, defining “environmental damage” remains a

complex issue and requires a two-State approach: defining the environment, and

then determining what constitutes compensable damage.294

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A recent EC Commission Green Paper on Environmental Liability has identified a whole range of possibilities for the determination of the level at which

environmental damage triggers liability.295 Treaty practice,296 case law,297 and

doctrine298 have suggested that environmental damage must be “significant,”

“substantial,” or possibly “appreciable.” Even if there are no agreed international

standards, State practice seems to indicate that the threshold for liability involves

a relatively high level of environmental damage.299

1.3. The Territorial Scope of the Prohibition of Transfrontier

Pollution

1.3.1. Bilateralism—at the Root of IEL

Traditionally, international law was a separate legal system with special rules

aimed only at relations between States.300 Similarly, early IEL was premised on an

inter-State bilateral focus and concerned primarily with transfrontier pollution

caused by activities in the territory or under the jurisdiction of one State, affecting

an area under the jurisdiction of another State.301 The origins of this cross-border

approach seem to lie with the customary principle of “good neighbourliness,”

which is in turn based on the above-mentioned general legal principle “sic utere

tuo ut alienum non laedas.” Gradually the requirement of “neighbourliness” was

widened to include a criterion of adjacency or at least of geographical proximity.

However, seen against the background of the development of international law as

a whole,302 it is no surprise that IEL continues to contain the firmest rules when

dealing with concerns of environmental harm between two States or with shared

national resources, such as international watercourses.303

Still, understanding of the laws and mechanisms of nature and of the effects of

pollution have grown considerably in the last decades. As already noted earlier,304

rules dealing with the environment in general, irrespective of where natural resources are located, are emerging.

1.3.2. International Areas and Principle 21

Currently, the high seas and the seabed as well as the maritime subsoil beyond

national jurisdiction (or the “Area” according to 1982 UNCLOS), the air column

above all these, in addition to Outer Space, and Antarctica and even the ozone

layer are areas variously designated in the literature as: “the commons” or “global

commons,”305 “common space areas,”306 “common spaces,”307 “international

commons,”308 “international areas,”309 “internationalised spaces,”310 “res

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communis,” (or common amenities.)311 One can only agree with Professor

Brownlie that not too much importance should be attached to terminology, for

none of these concepts is capable of conveying precisely what the legal status of a

particular area is.312 In the present study the general term “international areas”

will be used as a shorthand for all areas that are considered to be beyond national

jurisdiction, in addition to Antarctica.313

Taking the locus of damage as criterion, three hypotheses should be discussed in

relation to international areas; first, damage may be caused to the environment of

other States by activities of one or more States conducted in areas beyond national

jurisdiction; second, activities of one or more States in areas beyond national jurisdiction may cause damage to rights or interests of other States in these areas; third,

damage may be caused to the environment of areas lying beyond national jurisdiction through activities of one or more States—conducted within or outside their

jurisdiction—without any immediate noticeable effects for third States.

As mentioned above, the “harm prevention” component of Principle 21 does

not merely include “the environment of other States,” but also “areas beyond the

limits of national jurisdiction”: there is no suggestion of a territorial or any other

spatial limitation to the conduct to which this obligation applies. Furthermore,

by focusing not only on activities within a State’s jurisdiction, but also to activities

within State control, the Principle covers activities by persons or ships under State

control, wherever they may act.314

Under present international law therefore, a State’s obligation to prevent environmental harm (to other States)315 applies in any locus over which it possesses a

measure of legal authority, including in international areas.316 It follows that

States are no longer free to pollute or degrade international areas and that they are

obliged to take suitable preventive measures to protect these environments.317

However, the above deduction contains two important qualifications: the requirement of “harm” on the one hand and the rights or interests of “other States”

on the other hand. This means that only two of the above hypotheses are covered

by the international areas provision of Principle 21: extraterritorial activities by a

State (or its nationals) causing damage to the environment or territory of another

state (or its nationals), and damage to interests or rights that other States (or their

nationals) have in international areas caused by extraterritorial activities under

the jurisdiction or control of another State.

Indeed, while damage or injury is not considered a constitutive element in the

general law of State responsibility,318 State practice indicates that with respect to

extra-territorial activities, proof of material injury to States’ rights or interests is

required. This is especially the case when the pollution-generating conduct is not

governed by a specific rule of international law.319

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The above qualifications have important consequences, for environmental

harm that cannot be construed as direct material damage to States’ rights or interests is rarely remedied. In the Nuclear Tests cases, neither Australia nor New

Zealand sought reparation for proven damage, but they asked the Court to order

France to stop atmospheric and other tests in the Pacific. There was evidence of

radioactive fallout but no proof of harm. Australia argued, inter alia, that the nuclear fallout on its territory constituted a violation of its sovereignty, that it could

be potentially dangerous for the country and its citizens, and that the interference

with ships and aircraft on the high seas by radio-active fallout constituted infringements of the freedom of the high seas.320 New Zealand’s claim was more

broadly cast: she also invoked “the rights of all members of the international community” to be free from nuclear tests giving rise to radioactive fallout and the

right to be preserved from “unjustified artificial radioactive contamination of the

terrestrial, maritime and aerial environment.”321 Although the merits of these

claims were never addressed by the Court, there is scepticism in the literature

about whether such claims can succeed in the absence of proof of direct material

damage to State’s territories.322

The scarce international case law that exists on environmental damage in international areas deals almost exclusively with the transboundary effects to the

environment “belonging” to States, or with damage which, though arguably sustained by the environment as such, has been invariably reduced to damage to

property or economic rights of States or their nationals.323 In addition, this sort of

inter-State claim tends to be resolved “out of court” via diplomatic channels. All

too frequently this involves protracted and secretive bargaining in which legal

principles play only a minor role. There are a few instances where States have

made ex-gratia payments or taken remedial measures without, however, recognising liability for damage sustained within and arguably also by resources of

international areas: e.g., the 1954 Diago Fukuru Maru324 and the 1966

Palomares325 incidents.

As seen above, the Space Objects Liability Convention is the only treaty to

contain a clear régime of State liability for damage sustained, inter alia, “on the

surface of the earth.”326 But while the latter expression conceivably covers international areas as well, the definition of damage retained by the treaty does not seem

to cover damage to the environment as such.327 Thus far the Space Objects Liability Convention has been invoked in one case. When in 1979 the Soviet Cosmos

954 satellite crashed in a remote area of Canada, the latter presented a claim for

more than $6 million dollars to the USSR. While expressly invoking the principles

of the aforementioned convention, Canada did not claim compensation for physical, environmental, or property damage, but only for part of the cost of locating,

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removing, and testing the debris and for subsequent cleanup efforts.328 In a diplomatic settlement reached in 1981, the USSR agreed to pay a lump sum of only $3

million, and never expressly recognised liability.329

Significantly, in 1991 several ILC members raised the issue of whether damage

to the “global commons” should be addressed by the commission in its work on

international liability. But a decision on this was deferred and the ILC’s 1994 report proclaims firm adherence to the strict bilateral transboundary conception of

the study.330

Yet, the duty to protect the environment as such, irrespective of locus, appears

to be addressed by a growing number of multilateral international instruments,

which phrase States’ environmental rights and duties in general terms without

territorial or spatial references.331 What these instruments show, at a minimum,

is that the balance between State sovereignty and the environment is probably

changing in favour of the latter. This expanding international interest in environmental resources, wherever situated, is supported by the growing scientific

evidence of the integrity and the unity of the environment.332 The growing evidence of the interrelatedness of all life processes is legally significant. For if the

earth’s biosphere represents a single indivisible system characterised by the interrelation of its various functional and ecological subsystems, the disruption of any

one of these subsystems promotes the breakdown and destabilization of another.333

In the present international legal constellation in which States continue to remain prime actors, the key to protecting the environment beyond the limits of

national jurisdiction lies in giving “third States” legal standing to enforce protection and preservation of this environment. In this context, the concepts of erga

omnes obligations and the actio popularis need to be discussed. In the 1966 South

West Africa case, the World Court rejected the notion of actio popularis, thereby

dismissing the claim that any member of a community had a right to take legal action in vindication of a public interest.334 This judgement was widely criticised in

the literature, and a few years on, the ICJ acknowledged in the Barcelona Traction

case that there existed:

. . . obligations of a State towards the international community as a whole, which by

their very nature . . . are the concern of all States. In view of the importance of the

rights involved, all States can be held to have a legal interest in their protection; they

are obligations erga omnes.

335

While this oft-quoted passage is only an obiter dictum, it was hailed as a clear

progression from the uncompromising stance expressed in the South West Africa

case. The types of obligations mentioned by the Court in the Barcelona Traction

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case were the outlawing of acts of aggression in international law and human

rights.

In the 1973/74 Nuclear Tests cases it was argued by both Australia and New Zealand that such obligations erga omnes exist in addition with regard to the

preservation of the high seas marine environment.336 As seen above, their petition was not only based on the alleged violation of their States’ sovereignty but on

the infringements of the principle of the freedom of the high seas and on the violation of “the rights of all members of the international community” to be free from

nuclear tests.337 Unfortunately, the merits of these claims were never addressed

by the Court,338 although several justices supported an examination of these

claims suggesting that the notions of erga omnes obligations and actio popularis are

closely linked.339

As seen earlier, in 1995 New Zealand filed a request with the ICJ based on paragraph 63 of the Court’s 1974 judgement in its case against France. Here again New

Zealand asserted that it had legal standing to enforce not only its own but also

other States’ rights in the marine environment.340 Although New Zealand’s application found favour with three judges,341 the majority of the Court held that

the 1974 and 1995 cases were substantially different.342

In his treatise on State Responsibility and the Marine Environment, Dr. Smith suggests an interesting way out of the actio popularis impasse.343 He argues that

international law need not go as far as recognising an actio popularis; it would suffice to better identify the legal rights and interests of all States in the preservation

of the marine environment. The author proposes a distinction between multilateral and bilateral erga omnes obligations. He asserts that while no individual State

has a right or interest in human rights cases other than as a member of the international community, the high seas marine environment presents a different case:

the legal interest of each State in the obligation to prevent injury to this area

would lie within the “subset of duties owed to each state and not just to the personified community.”

But even if the need for an actio popularis could be avoided through recognition

of “bilateral” erga omnes obligations, enforcement before international tribunals

may remain problematic. This is especially the case when the author State refuses

consent to jurisdiction. In 1995 Portugal brought a case against Australia concerning a 1989 treaty between Australia and Indonesia regarding the exploitation

of the continental shelf of the so-called “Timor Gap.” No case was brought against

Indonesia, since the latter had not consented to the ICJ’s jurisdiction. In its application, Portugal sought to overcome this obstacle by claiming, inter alia, that in

taking measures to apply the Timor Gap Treaty, Australia had violated the rights

of the people of East Timor to self-determination.344 Portugal maintained that

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Australia thus breached rights erga omnes and that accordingly it had jus standi to

require Australia, individually, to respect them regardless of whether or not another State (i.e., Indonesia) had conducted itself in a similarly unlawful

manner.345

In its judgment of 30 June 1995, the ICJ characterised Portugal’s assertion that

the right of peoples to self-determination has an erga omnes as “irreproachable.”346

It found, however, that it could not decide on Australia’s conduct without first deciding why Indonesia could not lawfully have concluded the Timor Gap

Treaty.347 It recalled in this respect that one of the fundamental principles of its

Statute (Article. 36 (2)) was that it cannot decide a dispute between States without

the consent of those States to its jurisdiction348 confirming that this applied even

if the obligations involved had an erga omnes character.349

The effect of this holding is undoubtedly, as Judge Weeramantry wrote, to inhibit the “practical operation of the erga omnes doctrine.”350 Judge Ranjeva

regretted that the Court had avoided the many questions raised by the existence of

positive objective law such as rights opposable erga omnes and jus cogens. He wondered whether the effect of the Court’s judgement was not to limit the domain of

the Court’s jurisdiction ratione materiae solely to disputes involving subjective

rights.351

The same problem was broached by Judge Weeramantry into the

Gabcíkovo-Nagymaros Project case. After having observed that the dispute in question involved only issues inter partes, he speculated that the Court may in the

future be faced with environmental litigation that raises erga omnes issues of sufficient importance. He stressed that the Court’s current inter partes adversarial

procedures may need to be reconsidered “if ever a case should arise of the imminence of serious or catastrophic environmental danger, especially to parties other

than the immediate litigants.”352

A step towards better recognition of the interests of the international community regarding the environment was taken by the ILC when it proposed to include

serious instances of pollution in its list of “international crimes” committed by

States:

...a serious breach of an international obligation of essential importance for the

safeguarding and preservation of the human environment such as those prohibiting

massive pollution of the atmosphere or of the seas.353

The term “massive” denotes a very high threshold, beyond the terms “significant” or “substantial” mentioned above. However, the reaction of States to these

proposals was rather negative. Not only is there much controversy about the

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notion of “State criminality” as such,354 many governments and scholars seem to

regard the ILC proposals on massive pollution at most as a prospect de lege

ferenda.

355 Probably for much the same reasons, the ILC’s proposal to include the

“wilful causing or ordering” of “widespread, long-term and severe damage to the

natural environment” as a separate crime into its draft for a Code of Crimes

against the Peace and Security of Mankind356 encountered resistance and was

eventually dropped.357

It is sometimes claimed that certain environmental norms have achieved the

status of jus cogens. This peremptory character has been attached to the prohibition of “serious damage or threat to biological diversity,” following Article 22 (1)

of the Biodiversity Convention,358 to “the basic principles” of 1982 UNCLOS, following Article 311 (3),359 to the “procedural principles of co-operation” inherent

in Principle 21, and to the prevention of climate change, acid rain, and depletion

of the ozone layer.360 Furthermore, the ILC regards the category of international

crimes of States as much broader than the list of peremptory obligations, viewing

the prohibition against “massive pollution of the atmosphere or the seas” as peremptory.361 Even States that refuse to regard violation of this norm as an

international State crime may not oppose its jus cogens character.

Leaving the other requirements of the concept aside, it should be noted that an

obligation can only be peremptory if no derogation is allowed.362 One of the circumstances that needs to be examined with regard to environmental norms is

armed conflict: if a State may deviate from such a norm on the basis of self-defence or military necessity, the norm would be derogable under certain

circumstances, thus refuting its alleged “peremptory” status.

In conclusion to this subheading, it seems safe to state that the extent to which

international law currently imposes on States an obligation of conservation and

sustainable development with respect to the environment in general, and the

question to whom such a duty would be owed, remain controversial.363

1.3.3. Damage to a State’s Own Environment

Another question that needs to be addressed is whether international legal responsibility attaches to damage caused by a State to its own environment when

there are no immediate deleterious effects for other States, nor for areas beyond

national jurisdiction. Can the preventive obligations implicit in Principle 21 be

held to apply to the environment contained within States? Here the first element

of that Principle poses a serious stumbling block: it holds that State sovereignty,

one of the basic tenets of international law, confers on each State the independent

right to control and regulate its natural resources. A further problem arises upon

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examination of the second element of Principle 21, which mentions only “other

States” and international areas as protected spheres; this phrase cannot be

stretched to include international legal responsibility for environmental resources within a State’s own territory. The ILC made this much clear in 1982 when

it held that State liability does not exist when both the activity causing harm and

the injury itself occur in the territory of the same State.364 Even the most recent

update of Principle 21, i.e., Principle 2 of the 1992 Rio Declaration, reflects the orthodox view regarding responsibility for damage to a State’s own environment.365

Nonetheless, it was seen above that international interest in the preservation of the environment, wherever it may be situated, is growing. International

concern for the environment that lies within a State’s own borders may be justified on scientific grounds. Because of the ecological unity of the global

environment, any act of pollution, even if it does not immediately threaten the

environment of other States or international areas, can have several systemic

consequences: for instance, it may reduce the overall assimilative capacity of

the global environment and may affect migratory species.366 Seen in this way,

any act of pollution or even any failure to take preventive action by a State with

regard to its own natural resources, creates risks for the entire world community and can potentially affect rights and interests of all States in the

environment. It is for those reasons that some have proposed to add a further

element to Principle 21 Stockholm/Principle 2 Rio according to which States

would have the obligation:

. . . to protect and preserve the environment within the limits of their national

jurisdiction.367

A second avenue to justify international interest in the environmental resources contained within a State is a human rights approach. The 1972 Stockholm

Declaration already mentions in its very first preambular paragraph that there is a

link between human rights and environmental protection:

Both aspects of man’s environment, the natural and the man-made, are essential

to his well-being and to the enjoyment of basic human rights—even the right to

life itself.

The first Principle of the Declaration then goes on to state:

Man has the fundamental right to freedom, equality and adequate conditions of life,

in an environment of a quality that permits a life of dignity and well-being.

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However, the travaux préparatoires of the Declaration indicate that the question

of an environmental human right was contentious and that the wording of the

preamble and of Principle 1 was the result of a compromise.368 This explains perhaps the continuing disagreement on the meaning of Principle 1.369 Principle 1 of

the 1992 Rio Declaration can be seen as continuing the doctrinal controversy

about the existence of a human right to environment, for it proclaims that human

beings:

. . . are entitled to a healthy and productive life in harmony with nature.

The literature remains divided on the status of an environmental human

right.370 The fact remains that apart from general proclamations,371 the practical

and procedural implementation of this purported human right to a decent environment in international law has been rather hesitant; for example, despite the

fact that the constitutions of more than 60 nations grant citizens a right to a decent environment, thus far no minimum standard of environmental quality to

which individuals would be entitled has emerged.372

At the far end of the spectrum of this debate stands Judge Weeramantry of the

ICJ. In his separate opinion to the Gabcíkovo-Nagymaros Project case he argued that:

Environmental rights are human rights. Treaties that affect human rights cannot be

applied in such a manner as to constitute a denial of human rights at the time of their

application.

The link between IEL and human rights was also debated in connection with

the requests for an advisory opinion from the ICJ on the Legality of Nuclear

Weapons. Proponents of the illegality of these weapons argued that their threat or

use would violate, inter alia, “the Human Right to Environment.”373 In its Opinion on the General Assembly request, the ICJ may have accepted at least a general

link between human rights and the environment insofar as it observed, as mentioned before, that the environment represents “the living space, the quality of

life and the very health of human beings, including generations unborn.”374

Still, it should be realised that the human rights approach to environmental

protection may have its drawbacks. Environmental protection requires more than

the piecemeal approach that can be offered through the rather individualistic approach of human rights litigation.375 On the other hand, those writers who

believe that a right to a decent environment has already been added to the catalogue of human rights, will more easily accept that the balance between State

sovereignty and environmental integrity is changing in favour of the latter.

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1.4. Conclusions to Chapter I

Public concern about the impact of human activities on the environment rapidly found its way into international fora at the end of the 1960s. The ensuing

discipline of modern international environmental law (IEL) has moved from an

inter-State focus based on transfrontier pollution onto dealing with the environment situated beyond national jurisdiction, and more recently, with the

environment in general, irrespective of locus.

IEL is primarily treaty-based law. An impressive number of agreements establish detailed obligations for States in regard to separate environmental

components such as the marine environment, freshwater resources, and wildlife.

Since the 1980s, several instruments have been concluded to deal with problems

across several environmental sectors in a comprehensive manner. In addition,

new treaty techniques have been developed for tackling complex scientific issues

such as loss of biodiversity, ozone depletion and climate change.

Although there are principles, rules and techniques common to many environmental sectors, there exists as yet no international common law of the

environment. Nevertheless, it was argued in this chapter that Principle 21 of the

Stockholm Declaration can be regarded as the cornerstone of modem IEL. Its first

element holds that States have the sovereign right to exploit their natural resources according to their own environmental policies; its second element that

activities under the jurisdiction or control of States, both within and outside their

own territory, are subject to the prohibition of transfrontier pollution, the implications and limits of which have been discussed above.

Although Principle 21 is regarded as reflecting customary international law, it

was seen that States are generally reluctant to recognise or pursue claims inter se of

State Responsibility based on breach of the Principle. Furthermore, there is controversy on the standard of care required from States as well as uncertainty regarding

the level of prohibited damage, although the latter is probably relatively high.

Two other problems that have been discussed in this chapter relate to environmental damage caused in international areas and within a State’s own

jurisdiction. International interest in these environments can be justified on scientific grounds. However, State practice indicates that environmental damage in

international areas will rarely be remedied or compensated unless there is proof of

damage to other States’ legal rights or interests. In addition, the principle of State

sovereignty inhibits outside interference when environmental damage remains

confined within State borders. Furthermore, it is still a matter of controversy

whether there exists at present a human right to a decent environment and

whether this offers appropriate means of ensuring environmental protection.

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In conclusion, its seems appropriate to quote and slightly amend an observation made by Professor Shearer in 1996:

Probably the only clearly established customary law principle of the natural environment

is that no State may conduct activities, or permit the conduct of activities, on its territory

[or in international areas] that cause harm to the territory of another State, if that harm is

of serious consequence and is established by clear and convincing evidence.376

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Chapter II

Protection of the Environment in the

Laws of Armed Conflict

2.1. Introduction

THIS CHAPTER WILL REVIEW THE ENVIRONMENTAL IMPLICATIONS of the lex

specialis, i.e., the laws of armed conflict, applicable to the marine environment. Space permits only brief comments on many relevant issues. In

particular, only international armed conflict will be addressed, whilst disarmament law and weapons of mass destruction will not be dealt with in detail.

Since the law of neutrality raises issues of general peacetime (including environmental) law, some of the issues raised in this chapter will also arise in the

next.

In contrast to the relatively recent origins of IEL, the laws of armed conflict are

of much older vintage.1 Mankind has long sought to restrain war through law by

prescribing both when war is permissible and what is permissible in war if and

when it has begun.

The contemporary law of armed conflict still encompasses this classical dichotomy. Any use of armed force in international relations is subject to a two-tier

scrutiny of rules regulating the resort to armed force (jus ad bellum) on the one

hand, and rules governing the use of armed force (jus in bello) on the other.2 The

former is aimed at preventing the outbreak of armed conflict while the purpose of

the latter is to moderate or humanise armed conflict. This difference in legal objective leads to a crucial difference: jus ad bellum allows the international

community to pass judgement on the merits of resort to armed force and necessarily distinguishes between victims and aggressors. By contrast, jus in bello applies

equally to all parties to an armed conflict, regardless of the legality of their actions

under jus ad bellum3 However, the theoretical independence of these disciplines
and the equality of all belligerents under jus in bello have recently come under

scrutiny.

While jus ad bellum and jus in bello chiefly regulate relations between

belligerents, relationships between belligerents and third States that do not wish

to become involved in the conflict are governed by the customary law of neutrality. However, since positions of neutrality vis-à-vis unlawful uses of force are

incompatible with the UN Charter, the international law on the relations between

belligerents and third States is unsettled.

Warfare, as Kalshoven observed, cannot fail to damage the natural environment, and it is therefore important to know what damage must be deemed to be

unacceptable.4 Many conflicts this century, in Europe and elsewhere, led to serious and probably long-lasting environmental destruction.5 Even if not all damage

was inflicted intentionally, history shows that belligerents have never shied away

from attempting to secure military advantage by using the forces of nature.6

Therefore, the problem of environmental damage during warfare is hardly new,

and rules aimed at controlling the impact of warfare on the human environment

can be found from the earliest civilisations. Thus, ancient norms prohibited the

wanton destruction of forests, orchards, fruit trees, and vines, or the poisoning of

wells, springs, and rivers.7

If environmental damage during warfare is a perennial problem, the extent and

depth of public concern about it is a relatively recent phenomenon.8

The destructive potential of means of warfare increased dramatically after World

War II through the advent of nuclear weapons. In 1956 the International Committee

of the Red Cross (ICRC) unsuccessfully proposed express humanitarian legal provisions for these weapons.9 Today, even Nuclear Powers do not dispute that their use is

governed by the laws of armed conflict.10 They continue to insist however, that these

and other “weapons of mass destruction” are best dealt with in arms control fora.11

The Second Indochina War (196l-l975), (Vietnam War), coincided with the

surge of environmental awareness in the 1970s. Initially, public criticism focused

primarily on the unprecedented scale of the use of herbicides by the United States

and its South Vietnamese allies.12 Soon however, the finger was pointed at the

combined effect of the vast array of so-called conventional weapons and techniques used by the United States; it was alleged that they had long-term or even

irreversible effects on the environment.13 While most of the environmental damage caused during the two World Wars is said to have been “collateral” in nature,

during the Vietnam War, the environment itself allegedly became a major target

of the U.S. military.14

Towards the end of the 1960s, claims surfaced that the United States had also

experimented with weather modification (rainmaking) for military purposes.15

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Appeals were launched for the outlawing of this new crime of “ecocide” in international law.16 As will be seen later, the 1972 Stockholm Conference dealt only

half-heartedly with the matter of environmental damage during armed conflict.17

By contrast, the Vietnam War was pivotal for the development of the environmental jus in bello.

Aspects of the Vietnam legacy were dealt with by the Geneva Disarmament

Conference, which adopted the 1972 Biological Weapons Convention and the

1977 Convention on the Prohibition of Military or Other Hostile Use of Environmental Modification Techniques. Subsequently, the Geneva Diplomatic Conference, tasked with reviewing and developing humanitarian law (hereinafter

1974–1977 GDC), adopted general principles and a threshold for the protection of

the environment in international armed conflict. Protection of the environment

was also dealt with by the 1980 “Inhumane Weapons Convention,”18 a treaty containing elements of jus in bello and disarmament law. Finally, with the adoption in

1993 of the Chemical Weapons Convention, the use of herbicides in armed conflict has been further circumscribed.19

Recent conflicts have highlighted the role of oil in armed conflict. However, oil

fields, oil installations and oil tankers have always been a prime target for

belligerents.20 During World War I, British and Rumanian Forces destroyed oil

fields in Rumania in order to deny them to the Axis Powers.21 The destruction of the

German oil production capacity was a key factor in the outcome of World War II.22

The systematic destruction of Egyptian oil fields by Israel in the 1967 conflict

prompted Arab nations to propose during the 1974–1977 GDC that attacks upon

such installations be forbidden.23 This initiative failed and oil installations and

oil tankers were again heavily targeted by belligerents in the 1980–1988 Iran-Iraq

war. In spite of the intensity of the “Tanker war,”24 there are no reports of significant pollution resulting from the attacks on tankers.25 By contrast, repeated Iraqi

attacks throughout 1983 on the Iranian Nowruz oil field led to major environmental damage in the Gulf region.26 Unlike the Vietnam War, however, it did not

lead to new treaty provisions aimed at protecting the environment. Nonetheless,

the Nowruz incident did inspire the first academic study on the subject of the operation of IEL during armed conflict.27

Another conflict of major importance for the subject of environmental damage

during warfare is the 1990–1991 Gulf conflict. Two of its more enduring images

were the seemingly apocalyptic effects generated by the burning of some 600 oil

wells on Kuwaiti land28 and the release of millions of barrels of crude oil, which

created one of the largest oil spills in history.29 As a result, massive damage was

caused in that region to coastal marshlands, wildlife, coastal flora, fishing, offshore oil operations, and the tourist industry.30 The Saudi-Arabian coast was

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International Environmental Law and Naval War
affected along a stretch of more than 400 kilometres, and there were impacts on

the Kuwaiti, Iraqi, and Iranian coasts.31 The atmospheric pollution caused by the

burning oil wells did not have the apocalyptic effects predicted at first, although it

was noticeable far beyond the battlefield.32 Whether there are any long-lasting

impacts on human health and the environment of the region as a consequence of

these actions is still a matter of debate.33

There is little doubt that Iraq orchestrated both aforementioned disasters34 for

military purposes which are hitherto unconfirmed, but generally regarded as

highly questionable.35 It transpired later that some 34 oil wells were accidentally

set ablaze by Coalition attacks, while the oil spill was at least partly caused by intentional or unintentional Coalition actions.36

Echoing the charges made during the Vietnam War, the Iraqi actions were

heavily criticised and called a “crime against the environment.”37 Some asserted

that the conflict showed that a new treaty was needed for the protection of the environment.38 In the months following the 1990–1991 Gulf conflict, a number of

international meetings were held at which the adequacy of the environmental aspects of mainly jus in bello were evaluated.39 The relationship between military

activities, including armed conflict, and the environment was also briefly addressed at 1992 UNCED in Rio.40

In addition, the matter was placed on the agenda of the UN General Assembly,

which adopted Resolution 47/37 (1992) on the subject.41 At the request of the Assembly, the ICRC submitted two reports in which it reviewed the existing jus in

bello provisions on the protection of the environment, as well as proposals for

their reform, and suggested a series of outstanding problems for consideration by

the UN Sixth (Legal) Committee. The ICRC also drafted a model set of instructions to the military, entitled Guidelines for Military Manuals and Instructions on the

Protection of the Environment in Time of Armed Conflict.42

2.2. Jus in Bello and Environmental Protection

In sharp contrast to the relative simplicity of jus ad bellum, jus in bello may appear as a daunting list of successive and ever more elaborate treaty instruments

that reflect the many attempts by the international community to restrain the

worst excesses of past armed conflicts.43 Many argue that the overriding majority

of these provisions are peremptory (jus cogens) under international law.44 In its recent Advisory Opinion on the Legality of Nuclear Weapons, the ICJ took note of this

argument but found that there was no need for it to address this issue.45 Nonetheless, the Court observed that the great majority of these provisions had already

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become customary law, that they reflected the most universally recognized humanitarian principles, and that they constituted “intransgressible” norms.46

It should be noted that the overriding majority of jus in bello treaty provisions

deal either with armed conflict on land or with the effects of armed conflict on

land. There are very few treaties in force concluded especially for armed conflict

at sea, and almost none for aerial warfare.47 Thus, there is no naval equivalent for

the 1907 Hague Convention (IV) and Regulations respecting the Laws and Customs of War on Land.48 There have been several unsuccessful attempts at

codification, inter alia, by the Institut, which published the 1913 Oxford Manual of

Naval War.49 The most recent attempt at restatement of relevant law was done under the auspices of the International Institute of Humanitarian Law, which

prepared the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994 San Remo Manual).50

Because the law of armed conflict differs according to the location of the conflict, the protective cover of certain rules may make little sense from an

environmental perspective. On the other hand, precisely because environmental

damage knows no borders, it will be seen below that non-terrestrial environments

and natural resources may be protected through provisions in instruments dealing with armed conflict on land.

2.2.1. Underlying Principles of the Law of Armed Conflict

There seems to be a wide consensus internationally on the identity and content

of a few cardinal customary principles of the law of armed conflict. The most basic

foundation is the principle, expressed in Article 22 of the Regulations attached to

the 1907 Hague Convention (IV) on Land Warfare and elsewhere,51 that:

The right of belligerents to adopt means of injuring the enemy is not unlimited.

Although there are slight variations in expression and content, the current

principles of the law of armed conflict are usually summarised as the principles of

discrimination, proportionality, necessity and humanity.52 The principle of discrimination demands that weapons and tactics clearly distinguish between

military and non-military targets. Proportionality requires that the degree of force

used be proportional to the adversary’s actions or to the anticipated military value

of the belligerent’s own actions. Necessity demands that the degree of force used be

reasonably necessary to the attainment of the military objective and finally, humanity, that no weapon, or tactic, should be employed if it causes unnecessary

suffering to its victims.

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Although they may not carry the same weight in all types of warfare, current

doctrine accepts that these principles are universal.53 In its 1996 Advisory Opinion on the Legality of Nuclear Weapons, the ICJ confirmed that many of these were

among the cardinal principles constituting the fabric of humanitarian law.54

Since they place limitations on the means and methods of warfare, the principles of discrimination, proportionality, necessity and humanity are relevant for

the protection of the environment in armed conflict. This is also the view of the

ICRC, who suggested that they be included into military manuals as guidelines for

environmental protection.55

However, these are general and abstract principles which leave much discretion to

the military commander56 and were formulated with the protection of humans—i.e.,

combatants and/or civilians—in mind. As for the principle of discrimination, although contrary views are sometimes expressed,57 there is no State practice to

support the view that the natural environment may never constitute a military objective. The UK declared in relation to Additional Protocol I of 1977 that:

...a specific area of land may be a military objective if, because of its location or other reasons

specified in the Article, its total or partial destruction... offers a definite military advantage....58

Italy,59 the Netherlands60 and New Zealand61 all filed similar reservations.

Similarly, there is evidence from the travaux préparatoires of Additional Protocol I

that the practice of “interdiction fire,” namely targeting of an area where enemy

troops are about to pass, even when enemy troops are not yet there, is considered

legal.62 For instance, the United States reserves the right to bombard certain geographic targets like mountain passes.63

The customary principle of proportionality was historically a norm developed

to protect combatants, but since World War I, protection of the civilian population from excessive losses has gradually become the dominant concern.64 It is now

generally accepted that the proportionality rule serves to protect the environment

as well.65 The decisive question, however, is what kind of damage can be considered excessive. Unfortunately, the customary rule of proportionality does not

include any concrete guidelines to this effect. Many consider that the definition of

disproportionate collateral damage to the environment is one of the more pressing contemporary questions.66

The customary law principle of humanity is undeniably a norm directed at humans, i.e., primarily combatants, although some scholars consider the civilian

population included.67 The indirect environmental benefits can nevertheless be

important, particularly when the application of the principle leads to the ban of

certain inhumane weapons.

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As for the principle of necessity, it has long been accepted that actions involving punitive or vindictive destruction not serving a useful military purpose are

impermissible. The prohibition of deliberate or wanton destruction of civilian

property and inhabited areas is one of the oldest rules of warfare, and has been recorded in one form or another in many jus in bello instruments.68 A provision to

this effect has been included in the 1907 Hague Regulations and the 1949 Geneva

Conventions.

Article 23 (g) of the 1907 Regulations forbids destruction or seizure of the enemy’s property unless “imperatively demanded by the necessities of war.”

Evidently, the environmental merits are limited because of the terms “enemy”

and “property.”69

The Geneva Conventions of 1949 contain an identically worded provision according to which the “extensive” destruction and appropriation of property, not

justified by military necessity and carried out unlawfully and wantonly qualify as

a grave breach.70 Although the norm forms part of the enforcement measures, its

significance cannot be underestimated. The grave breach provision has a wide

scope, for it is not limited to a specific category of property nor to any particular

period in the course of armed conflict. However, the destruction involved needs

to be extensive for it to be qualified as a grave breach, and malicious intent needs

to be proved.71

The prohibition of wanton devastation has received such wide acceptance

that some regard it as peremptory, at least insofar as international armed conflicts are concerned.72 However, the historical context of the norm indicates

that it is intended to cover those parts of the human environment that can be

considered real and tangible property, such as villages, towns, districts, and

agricultural areas. Parts of the environment which may be affected by armed

conflict but which do not “belong” to any of the parties involved would not

be covered by the norm. This excludes migratory species to which a State does

not retain exclusive property rights as well as natural resources in international

areas.73

Nevertheless, since the 1990–1991 Gulf war, the prohibition of wanton devastation has often been invoked in a broader context in relation to the environment

in general.74 This is the position taken by the UN General Assembly in Res.

47/7375 and by the ICRC guidelines.76 In its 1996 Advisory Opinion on Nuclear

Weapons, the ICJ may have confirmed this position. Citing the above mentioned

resolution the Court affirmed that:

. . . destruction of the environment, not justified by military necessity and carried

out wantonly, is clearly contrary to existing international law.77

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It is unclear, however, what threshold of environmental damage this wider

norm may involve. The ILC has proposed that the use of means and methods of

warfare with the intent to cause environmental damage, when not justified by

military necessity, be classified as a crime against peace and security of mankind.78 However, the suggested threshold has been set at a very high level. The

war crime needs to have been committed “in a systematic manner or on a large

scale.” In addition, the level of environmental damage was taken from Additional

Protocol I of 1977 and should therefore be regarded as extremely high.79 Furthermore, the suggested provision has been cast in openly anthropocentric terms.

By setting close to 600 oil wells alight and by deliberately causing a catastrophic oil spill in the 1990–199l Gulf conflict, Iraq is widely regarded as having

violated at least the customary prohibition on wanton devastation. As mentioned

before, to this day the reasons for these actions remain unclear; they may have

served military purposes, but they were largely unsuccessful. However, State

practice and courts have in the past required a very high standard of proof for the

war crime of devastation beyond military necessity.80 After World War II, several

German generals were charged with the war crime of wanton devastation of villages and cities. In the face of advancing Soviet troops, they had issued orders for

scorched earth policies in Northern Norway and the USSR. General Jodl was found

guilty of such practices by the main Nüremberg Tribunal.81 However, in the trial

of US v. Von Leeb, seven commanders were cleared by the U.S. Military Tribunal.

It held that “a great deal of latitude must be accorded” to military commanders

and that “devastation beyond military necessity” in these situations requires “detailed proof of an operational and tactical nature.”82

In the case of US v. List (hostages case), German General Rendulic was charged

with wanton devastation in the Norwegian Province of Finnmark. Although he

admitted his actions, he argued that they were taken in the belief that Russian

forces were in hot pursuit of his retreating units. The court acquitted the defendant on the grounds that the defendant may have erred in believing that there was

military necessity for this destruction and devastation, but that he was guilty of

no criminal act.83 This judgement was extremely controversial in Norway, for

there was evidence that the general had enough information to decide against the

need for a scorched earth policy.84 Nevertheless, what became known as the

“Rendulic” rule has since been adopted as an important guideline on “hindsight”

by some military forces. It has been invoked in defence of two controversial

air-raids made by the U.S. Air Force during the 1991 Desert Storm to excuse possible reliance on information which, with hindsight, proved insufficient.85

In conclusion, the environmental benefits of the application of the underlying

principles of jus in bello is not unqualified. Nevertheless, as Professor Roberts

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points out, taken together, the underlying principles of the law of armed conflict

strongly point to the conclusion that actions resulting in massive environmental

destruction, especially where they do not serve a clear and important military purpose, would be questionable on many grounds.86

In addition, the principles may provide a safety net in conflicts such as the

1990–1991 Gulf War, where few of the participants were party to jus in bello treaties containing norms specifically directed at the environment.87

2.2.2. The Martens Clause

The Martens Clause finds its origins in a paragraph inserted in the preamble to Hague Conventions (IV) of 1899 and 1907. It has since been inserted in

one form or another as a separate article in many jus in bello conventions after

World War II.88 It states that if a particular rule is not expressly found in treaty

law, belligerents (and recently also civilians) remain under the protection of

customary law, the principles of humanity, and the dictates of public

conscience.

It is generally accepted that the clause serves as a powerful reminder of the role

of customary international law and that it warns that even if an issue is not addressed by a specific treaty provision, it may still be regulated by international

law.89 However, there is disagreement on the significance of the terms “principles

of humanity and dictates of public conscience.” It is debated whether this formula

refers to separate sources of (legal) rules governing belligerent conduct, or

whether it only offers moral guidelines.90

The possible interpretations of the Martens Clause were extensively dealt with

in submissions of States in connection with the WHO and UN General Assembly

requests for an advisory opinion on the legality of nuclear weapons. Among the

proponents of their legality, the Russian Federation argued that the clause was redundant,91 whilst the UK held the view that the clause was a mere reminder of the

existence of customary law.92 States opposing these views argued that, even if not

expressly prohibited by a treaty norm, nuclear weapons were forbidden because

their use violates the principles of humanity and public conscience.93

In its 1996 Advisory Opinion on the General Assembly request, the ICJ refuted

the Russian position and affirmed the importance of the Martens Clause explicitly by holding that its “continuing existence and applicability cannot be

doubted” and that it reflected customary law predating Additional Protocol I.

However, the Court would not be drawn any further on the meaning of this clause

other than observing that it has proved to be an effective means of addressing the

rapid evolution of military technology and that the fact that certain weapons were

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not specifically dealt with by the 1974–1977 GDC does not permit any legal conclusions relating to substantive issues raised by the use of such weapons.94

Although the Martens Clause is undoubtedly anthropocentric, it has been argued that:

The customary laws of war, in reflecting the dictates of public conscience, now include a

requirement to avoid unnecessary damage to the environment.95

Insofar as the underlying principles of the law of armed conflict already

amount to a prohibition of unjustifiable damage to the environment, this interpretation of the Martens Clause adds little new to its protection.96 The statement

may nevertheless serve to emphasise that since environmental degradation is now

undeniably of major public concern, it would be unacceptable for the military to

neglect these values during armed conflict.97

2.2.3. Treaty Provisions until 1977

Until the mid-l 970s, the conventional jus in bello did not mention the environment by name, although it contained a series of norms with environmental

implications. One can distinguish five types of such norms: (1) provisions aimed

at civilians, since these imply protection of the environment on which the civilians depend; (2) provisions prohibiting unnecessary destruction of civilian

property; (3) prohibitions of attacks on certain objectives and areas; (4) prohibitions and restrictions on the use of certain weapons and (5) prohibitions and

restrictions on certain methods of war.98 The analysis below will be restricted to

norms which are most relevant for the rest of this study.

A. Treatment of Private, Semi-public and Public Property. Apart from rules

on wanton devastation of property, which were discussed above, both the 1907

Hague Regulations and the 1949 Geneva Conventions contain rules for the treatment of private, semi-public, and public property during belligerent occupation.

The 1907 Hague Regulations on Land Warfare reflect customary law and constitute the principal source for the status of property during belligerent

occupation.99The four Geneva Conventions are in many respects the most important source of international humanitarian law. They have achieved virtually

universal participation of all States, consistently attracting more adherents than

the UN Charter.100

According to Articles 46 and 56 of the 1907 Hague Rules, private and municipal property as well as holdings of religious, cultural, educational and scientific

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institutions are immune from interference by the occupier. The latter is furthermore obligated by Article 43—unless absolutely prevented—to respect the

national laws in force in the occupied territory. On the basis of Article 46, an occupier would not be allowed to take possession of privately owned natural resources,

such as forests. A case can also be made that officially established nature reserves,

regardless of ownership structure, are given immunity by Articles 43 and 56. This

may apply to habitats listed,e.g., under the 1971 Ramsar Convention on Wetlands

of International Importance and to sites designated under the 1972 UNESCO Convention for the Protection of World Cultural and Natural Heritage.101

Pursuant to Article 55, the occupying State may take possession of government

real estate holdings but is obligated to respect the rules of usufruct when administering these. Article 55 reads:

The occupying State shall be regarded only as administrator and usufructuary of

public buildings, real estate, forests, and agricultural estates belonging to the hostile

State, and situated in the occupied country. It must safeguard the capital of these

properties, and administer them in accordance with the rules of usufruct.

By its very language, Article 55 seems capable of being read as protecting large

portions of the human environment, including in particular, agricultural lands

and forests.102 The old Hague rule can be seen as an early expression of the duty to

use natural resources in sustainable ways. An application of this principle is the

Polish Forests case in which a number of former German civilian administrators

were convicted of war crimes committed during the occupation of Poland. They

were found to have caused:

. . . the wholesale cutting of Polish Timber to an extent far in excess of what was

necessary to preserve the timber resources of the country.103

The status of certain property during belligerent occupation is regulated also

by Article 53 of the fourth Geneva (civilians) Convention, which stipulates that:

Any destruction by the Occupying Power of real or personal property belonging

individually or collectively to private persons, or to the State, or to other public

authorities, or to social or to cooperative organizations, is prohibited, except where

such destruction is rendered absolutely necessary by military operations.

The travaux préparatoires show that the principal goal of this provision was to

protect all private or public property of immediate “domestic” value to citizens,

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but not public property with a general military value such as airfields and bridges.

The difficulty lies in identifying what kinds of state-owned property mainly serve

the needs of the individuals. In the opinion of one commentator, the Kuwaiti Oil

Fields, which were destroyed by Iraq in the closing stages of the 1990–1991 Gulf

Conflict, do not qualify as a such.104 Furthermore, it has been argued that the provision was only intended to apply during uncontested military occupation.105

Unlike Articles 46 and 56 of the Hague Regulations, Article 53 of Geneva Convention (IV) allows destruction when “rendered absolutely necessary by military

operations.” Since forests and nature reserves arguably rarely serve immediate domestic civilian needs, Article 53 does not diminish the protection which private

ecological property and nature reserves derive from the Hague Regulations.

There are several limitations inherent in the above provisions that may adversely affect their relevance for environmental protection. By requiring that

natural resources “belong” to the occupied State, parts of the natural environment

which cannot be considered property of a particular State are excluded.106

It is important to note also that the above provisions do not apply during combat. Since 1907, the status of cultural property during hostilities has been

addressed in several instruments, none of which extend firm protection to natural

sites. Thus, the 1954 Hague Convention on Cultural Property and its protocol

protect a broad range of objects from destruction, damage and pillage, but its provisions and subsequent State practice indicate that it applies only to built

environs containing large amounts of cultural property. During a recent review of

the convention, a suggestion to include natural sites was rejected as impractical

and counterproductive.107

During the 1974–1977 GDC, it was confirmed that States do not want to commit

themselves to any protection for natural sites in armed conflict. Article 53 of 1977

Additional Protocol I prohibits acts of hostility against historic monuments,

works of art, or places of worship which constitute the cultural or spiritual heritage of peoples. Although this formulation is not exclusively concerned with the

man- made or built environment, and may conceivably include natural sites, the

travaux préparatoires of the provision make it clear that a proposal to protect any

and all places of worship was rejected for reasons of practicality and that there has

to be more than local fame about protected places.108

In addition, at least two proposals were tabled to protect specially designated

nature reserves.109 One of these proposals read as follows:

Nature reserves with adequate markings and boundaries declared as such to the

adversary shall be protected and respected except when such reserves are used

specifically for military purposes.110

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None of these proposals were retained, and consequently, there is as yet, no jus

in bello instrument that protects nature reserves during combat.111

The absence of any such restriction makes it unsurprising that military hostilities took place in the Kuwaiti National Forest during the 1991 Desert Storm

campaign,112 and that the Sava Wetlands in Croatia, which had been included in

UNESCO’s Biosphere programme, were disturbed during the recent conflict in Yugoslavia.113

B. Provisions for Naval Warfare. The Hague Regulations apply only to land

warfare, and there is no equivalent instrument for armed conflict at sea. Consequently, while the more traditional type of terrestrial nature reserve may be

immune under the regulations, the same cannot be said to apply to more novel

types: those with a land-ward and a sea-ward component, or those entirely located

at sea.114 Arguably, it would appear illogical to extend immunity to terrestrial

components of nature reserves, but not to coastal or marine components. However, insofar as reliance has to be placed on the “pre-ecological” 1907 Hague

Regulations, firm legal ground is lacking. This is, a fortiori, the case for marine

sanctuaries.

There is, a fortiori, no legal immunity for marine sanctuaries during armed conflict. During the discussions in preparation for the 1994 San Remo Manual, it

became clear that no consensus could be reached on the creation of a legal obligation in this respect. Nevertheless, the manual encourages belligerent States to

conclude special agreements not to conduct hostile actions in marine areas

containing:

(a) rare or fragile ecosystems; or

(b) the habitat of depleted, threatened or endangered species or other forms of

marine life.115 And to make use of lists such as those maintained, inter alia, under

the World Heritage Convention.116

Finally, it is undeniable that mines laid at sea have the potential to affect the

freedom of navigation of many States, whether belligerent or neutral, and that unrecovered and unexploded mines may lead to serious pollution incidents after the

end of naval conflicts.117 Apart from the 1971 Seabed Arms Control Treaty,118

and Protocol II of the 1980 “Inhumane” Weapons Convention,119 the only international legislation governing the problem of mine warfare at sea is contained in

Hague Convention (VIII) Relative to the Laying of Automatic Contact Mines.120

The material scope of the latter is limited to automatic submarine contact mines

and torpedoes. It contains neither a general prohibition nor a specific geographical limitation of the use of such devices, and is regarded as one of the least

successful texts to emerge from the 1907 Peace Conference. 121 Because of the

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unrestricted mine warfare of the two World Wars and the technical development of naval mines, its continued legal relevance became a matter of

dispute.122 Still, it is said to reflect customary law for the use of automatic contact mines.123

The 1994 San Remo Manual suggests a series of much needed improvements to

the legal régime of all types of mine warfare at sea, drawing, inter alia, on principles of the 1980 “Inhumane” Weapons Convention for mine warfare on land.124

The suggested rules include, for example, the interdiction to use free-floating

mines, unless (a) they are directed against a military objective and (b) they become harmless within an hour after loss of control over them;125 the obligation

for belligerents to record the location where they have laid mines;126 and after the

cessation of hostilities, to do their utmost to remove or render harmless the mines

they have laid.127

2.2.4. The 1977 ENMOD Convention

The ENMOD Convention (hereinafter ENMOD) was concluded against the

backdrop of the Vietnam war, which involved massive use of herbicides as well as

allegations of attempted weather modification for military purposes.128 In 1972,

the United States formally renounced the use of climate modification techniques

as a matter of policy129 and agreed to negotiate a treaty to this effect with the

USSR.

130 The treaty was eventually concluded under the auspices of the Conference of the Committee of Disarmament, and adopted by General Assembly

Resolution GA Res. 31/72.131

Article I of the ENMOD reads:

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.

Article II provides the following clarification:

The term “environmental modification techniques” refers to any technique for

changing—through the deliberate manipulation of natural processes—the

dynamics, composition or structure of the Earth, including its biota, lithosphere,

hydrosphere and atmosphere, or of outer space.

The Disarmament Conference transmitted a series of common understandings

of various articles to the General Assembly.132 These were not formally annexed

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to the convention, and although they probably reflect the drafters’ intentions,

their legal status is ambiguous.133

The understanding to Article I includes a non-exhaustive list of examples such as:

. . . earthquakes, tsunamis, an upset in the ecological balance of a region, changes in

weather patterns, changes in climate patterns, changes in ocean currents, changes in

the state of the ozone layer, and changes in the state of the atmosphere.134

There is, as yet, no proof that the United States did engage in weather modification in Vietnam.135 Furthermore, whether the types of geophysical warfare the

ENMOD drafters had in mind are realistic is a matter of debate.136 On the other

hand, weather modification is currently being used for peaceful purposes,137 and

the convention encourages development and testing of these techniques for

peaceful purposes.138

Furthermore, ENMOD may now be applicable to a broader range of situations

than originally intended. After the 1990–1991 Gulf war, it became controversial

whether the setting alight of Kuwaiti oil wells and the engineering of the Gulf war

oil spill came within the ambit of the convention. Some claimed that these deliberate acts, although they were “low-tech,” induced proscribed environmental

modification of natural processes.139Others objected that ENMOD was intended to

ban only advanced technological techniques aimed at changing the “dynamics,

composition and structure of the Earth.” During the Second Review Conference

of ENMOD, held in September 1992, State parties failed to solve this controversy.

They agreed only to study the possibility of clarifying the scope of ENMOD with

the aim of prohibiting also low-tech environmental modification.

Surprisingly, however,140 the final conference declaration, adopted by consensus, declares that the “military or any other hostile use of herbicides” is an

environmental modification technique within the ambit of the convention.141

This can only be explained by the fact that the U.S. government had already earlier acknowledged that the use of herbicides was covered by ENMOD.

142 In

addition, by 1992, a general consensus was emerging within the UN Disarmament Conference that the use of herbicides in armed conflict should be banned by

the Chemical Weapons Convention.143

These recent developments notwithstanding, ENMOD is generally considered

of limited value for the protection of the environment in armed conflict.144 It is a

disarmament treaty that does not outlaw environmental damage as such, but prohibits certain uses of the forces of nature as weapons in armed conflict.

Furthermore, it is debated whether ENMOD requires the actual causing of such

damage.145

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In addition, the threshold of prohibited damage in ENMOD is high, although

not as high as for the provisions of Additional Protocol I, which will be discussed

further below. Article I of ENMOD uses the terms “widespread, long-lasting or severe effects,” and it is important to note that because of the disjunctive “or,” these

are meant to be alternatives. A technique meeting any of the threshold criteria

will be prohibited. The common understanding of this article gives the following

interpretation:

(a) widespread: encompassing an area of several hundred square kilometres;

(b) long-lasting: lasting for a period of months, or approximately a season;

(c) severe: involving serious or significant disruption or harm to human life,

natural and economic resources or other assets;146

The term “widespread” is meant as an absolute standard, which may exceed

the surface area of some States.147 Suggestions that a relative standard, taking into

account States’ surface areas would be fairer for small nations were rejected during the negotiations.148

Many consider it likely that the environmental damage caused by the 1991 oilwell fires and the oil slick—assuming that they were environmental modification

techniques—crossed at least one of the ENMOD thresholds.149 However, neither

Iraq nor several coalition States were a party to the convention at the relevant

time.150 ENMOD broke undoubtedly new ground in 1977, and by 1992 it counted

only 55 parties. It is unlikely to reflect customary law.151

Furthermore, the wording of Article I is so strained that some doubt whether

ENMOD was intended to cover the concept of environmental damage at all.152 Importantly, environmental damage as such is not outlawed, only the use of certain

techniques which may cause destruction, damage, or injury to State parties. This

formulation excludes application of ENMOD not only to non-parties but also to the

environment lying beyond the national jurisdiction of State parties. This means

that ordinarily, environmental damage caused by environmental modification

techniques on the high seas will not be covered unless damage of the forbidden

threshold is caused to the land or sea areas covered by a State party’s sovereignty.153

A final observation is that the convention’s remedial measures have never been

used and that its enforcement mechanisms are regarded as unsatisfactory.154

2.2.5. Additional Protocol I

Protocol I Additional to the four Geneva Conventions was concluded shortly

after ENMOD. It regulates primarily international armed conflict on land, but includes the effects of other types of armed conflict on land under certain

conditions.155 By 22 January 1998, Additional Protocol I had 149 State parties.156

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Nevertheless, this protocol remains controversial. The United States, for example, has major objections to the status which it gives to liberation movements, and

disagrees with other provisions which she sees as unduly restricting military operations. These include the provisions on the natural environment.157

Additional Protocol I contains several articles dealing with protection of the

environment. Of these, two deal explicitly with protection of the natural environment, the others with separate components of the human environment:

agricultural areas, cultural and religious property and industrial installations.

Following the 1990–1991 Gulf conflict, literature on the legal significance of

these provisions has abounded.158

A. Articles 53, 54 and 56. Article 53 of Additional Protocol I, which was already mentioned above, deals with the protection in armed conflict of historic

monuments, works of art or places of worship which constitute the cultural or

spiritual heritage of peoples. The travaux préparatoires show that the term “peoples” was used intentionally to convey a broad purpose. It is noteworthy that

Article 53 prohibits attacks against certain monuments even if the health and survival of the population are not affected.159

Article 54 of Additional Protocol I forbids warfare by starvation and deals with the

protection of 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.” However, the article

permits important exceptions. The first one (paragraph 3) relates to objects which are

either used solely by the military or in direct support of military action.

The second exception (paragraph 5) allows Parties to engage in scorched earth

policies on their own territory under the following conditions:

In recognition of the vital requirements of any Party to the conflict in the defence of

its national territory against invasion, derogation from the prohibitions contained

in paragraph 2 may be made by a Party to the conflict within such territory under its

own control where required by imperative military necessity.

This is an important exception. It was argued above that States are under no

firm international legal obligation to protect the environment within their own

borders.160 Even if some might disagree with the general principle, Article 54(5)

proves that at least in international armed conflict, States may resort to extensive

destruction of their own territories under certain conditions.161

Another provision with environmental implications is Article 56, which forbids attacks on “works or installations containing dangerous forces, namely

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dams, dykes and nuclear electrical generating stations,” even if in principle they

constitute military targets. Paragraph 2 of the article defines the conditions under

which this special immunity might cease: in general, the protection may cease

only when the works or installations are used in regular, significant and direct

support of military operations, and if the attack is the only feasible way to terminate such support.

It is important to observe that the enumeration of dangerous installations in

this provision is meant to be exhaustive. In particular, as mentioned before, a proposal that oil installations be given special immunity as well, failed.162 States are

nevertheless encouraged to conclude further agreements providing additional

protection for objects containing dangerous forces.163

Finally, the provision is unlikely to reflect customary international law.164

This is confirmed by the 1997 International Watercourse Convention. Although Article 29 states that watercourse installations remain under the

protection of the laws of armed conflict, it omits to mention Article 56 by

name.165 During the adoption of the treaty by the General Assembly it was

stressed that:

Just as article 29 does not alter or amend existing law, it does not purport to extend the

applicability of any instrument to States not parties to that instrument.166

B. Articles 35(3) and 55. The 1974–1977 GDC was preceded by two preparatory

expert meetings convened by the ICRC. During the last of these, in 1972, calls were

made for the inclusion of provisions on the protection of the environment.167 For

reasons that are unclear, the ICRC decided to retain none of these proposals. Yet, at

the 1974–1977 GDC, several delegations brought the issue up from the very beginning.168 However, differences of opinion emerged quickly. Some delegates

believed that the protection of the environment in time of war was an end in itself;

others considered the continued survival of the civilian population to be its purpose.169 Various proposals were formulated, many of which went through several

stages of deliberations at the Conference.170 In the end, no agreement was reached

on a definition of the environment nor on a single course of action. An official

Working Group came up with two proposals for a provision on the “natural” environment. The Conference accepted both, and as a consequence, the text of

Additional Protocol I contains two provisions on the natural environment, each

with their own rationale and scope.

The first provision, Article 35(3), appears under the heading “Basic Rules” and

deals with means and methods of warfare. It states that:

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It 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.

The second provision, Article 55, appears in Part IV on the Protection of the

Civilian Population and reads:

(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

and survival of the population.

(2) Attacks against the natural environment by way of reprisals are prohibited.

These provisions are not a model of clarity. Their scope and contents, mutual

relationship as well as the link, if any, with the strikingly similarly worded provision of the 1977 ENMOD Convention are hotly debated.171

Neither of the provisions defines the term “natural environment.” The

Biotope group, which elaborated the proposal, thought its meaning to be self-evident, but this is disproved by the comments which the provisions elicited even

during the conference. The ICRC commentary to the provisions claims that the

term “natural environment” should be interpreted broadly, covering, inter alia,

objects indispensable to the survival of the civilian population, mentioned in Article 54.172 Support for this position can be found in the travaux préparatoires.

These show that an Australian proposal, according to which a State’s own territory would be exempted from the prohibition (later) contained in Article 55, was

dropped.173 What this means is that Article 55 sets a limit to the defensive

scorched earth policies permitted by Article 54(5).174

The literature is divided on the meaning of the terms “natural environment”

in Articles 35(3) and 55. Some believe that both provisions share the same objective, but disagree on its content.175 The majority of writers, however, argue that

Article 35(3) aims at protecting the environment per se and that Article 55 protects the environment for the sake of the health and survival of the

population.176

In view of the above controversies, it is perhaps not surprising to note that doctrinal opinion is divided also on the ultimate scope of the articles. Unlike ENMOD,

Articles 35(3) and 55 Additional Protocol I do not require that the (actual or

threatened) damage causes injury to a State party. However, does this omission

mean that the environment of all States is covered by the provision, regardless of

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whether they are parties to the convention and regardless of their status in the

conflict?

Dr. Fisher regards Article 35(3) as a rule acknowledging the impact of modern

warfare on non-belligerent countries.177 Professor Lagoni writes that the article

has three purposes: to protect the environment as such; to protect the civilian

population from long-term and severe damage and to protect the territory of

States not parties to the conflict from “widespread” damage to the environment.178 Others reject such views on the ground that Additional Protocol I intends to regulate international armed conflict only between State parties.179

The legal effect of Articles 35(3) and 55 for areas beyond belligerents’ territory—third States and international areas—is a complex matter. It cannot be

resolved without determining: (a) what level of protection exists for these areas

under general (peacetime) international law; (b) what threshold of environmental

damage is intended by Articles 35(3) and 55;(c) whether Articles 35(3) and 55

were innovative at the time of their adoption; and (d) what their current legal status is.

While the relationship between belligerent States and third States will be further dealt with be1ow,180 some of the above questions can be answered briefly. As

to question (a), it was argued earlier that under general international law, States

are under a duty not to cause “severe” damage to the territory of other States or of

areas beyond national jurisdiction, and that there is no firm obligation with regard to the environment within a State’s own borders.181

As for (b), it is generally assumed that Articles 35(3) and 55 only cover very significant damage. Although the terms used in Additional Protocol I resemble

those of ENMOD, the threshold indicated by the two instruments is fundamentally

different.182 Unlike in ENMOD, the adjectives “widespread, long-term, and severe” used in Additional Protocol I are joined by the word “and,” meaning that it

is a triple, cumulative standard that needs to be fulfilled.

There are no “understandings” comparable to ENMOD for the threshold adjectives of Additional Protocol I, although some indications can be found in the

conference records. Some of these suggest that while the duration of the term

“long-lasting” in ENMOD was a few months, the adjective “long-term” in Additional Protocol I would need to be measured in decades, rather than months, and

that ordinary battlefield damage of the kind caused to France in World War I is

not covered. However, some delegates argued that it was not possible to say with

certainty what period of time might be involved.183 There was no explicit clarification of the terms “widespread” or “severe,” although it was suggested that the

term “health” should be thought of as referring to congenital defects, degenerations or deformities and as excluding temporary or short-term effects.184

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Given these suggestions, it has been argued that Articles 35(3) and 55 do not

impose any significant limitation on combatants waging conventional warfare,

and that they are:

. . . primarily directed at high level policy decision makers and would affect such

unconventional means of warfare as the massive use of herbicides or chemical agents which

could produce widespread, long-term, and severe damage to the natural environment.185

As for questions (c) and (d), at the time of their formulation, Articles 35(3) and

55 were regarded as innovative. States like the United States186 and France,187

and many scholars,188 continue to believe that they bind only State parties. In its

1996 Advisory Opinion on the Legality of Nuclear Weapons, the ICJ rather enigmatically stated that these provisions provide additional protection to the

environment and “are powerful constraints for all States having subscribed to

these provisions,”189 thereby apparently suggesting that they do not reflect customary law.

The question of the relationship between existing customary international law

and Articles 35(3) and 55 is essential and depends chiefly on the level of environmental damage permitted by the latter provisions. Some authors argue that

because of their high threshold, they do not add much by way of protection to customary rules of the law of armed conflict.190 However, another interpretation is

possible. If the threshold set by Articles 35(3) and 55 is innovative, it may entail a

more permissive rule than the customary principles of the law of armed conflict.

Rather than improving on the customary protection, the 1977 additions of jus in

bello may lead to an erosion of the customary requirements of proportionality and

necessity in relation to the environment.191

As the above analysis has indicated, a strong case can be made that the intended threshold of Articles 35(3) and 55 is much higher than the peacetime

standard of “severe.” This raises the question of what standard applies in armed

conflict to third States and international areas. This issue will be further addressed in the next chapter,192 but it seems prima facie unacceptable that

belligerents would be entitled to inflict environmental damage leading to congenital diseases in third States. Given their high threshold, the provisions of

Additional Protocol I cannot lower the protection which the latter derive from

general international law. Therefore, the view that these provisions should not be

considered applicable to third States appears convincing.

Another question is whether the provisions would nonetheless cover third

States that become party to the protocol. Would such States accept that they will

have no cause for complaint unless the damage caused within their territory is of

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the severity envisaged in Articles 35(3) and 55: i.e., unless it lasts for decades, covers wide areas and leads to birth defects? It would be hard to believe that States

would accept such a consequence voluntarily. The better view seems to be that Articles 35(3) and 55 only cover belligerent States, but not third States, regardless of

whether the latter have become party to the protocol or not.

This leaves the case of international areas. It was seen earlier that under current international law, environmental damage in these areas is only actionable in

case severe injury is caused to legal rights or interests of States. In addition, whilst

there may be an emerging duty to protect the environment as such, international

enforcement of these obligations and the requisite legal standing are problematic.193 Consequently, a State’s ability to bring a claim for environmental damage

arising from military activities in international areas turns on demonstrating a legal interest in this environment and an entitlement to that effect.194

The international area of most importance to this study is the high seas. However, pursuant to Article 49(3), Section IV of Additional Protocol I applies

primarily to land warfare; it may apply to air and sea warfare if the civilian population, individual civilians and civilian objects on land are affected. Therefore,

while Article 35(3) applies theoretically unabridged, Article 55(l) and (2) will only

apply to naval conflicts insofar as civilians or civilian objects are affected. The

above controversy surrounding the anthropocentric nature of Article 55 is therefore superfluous for naval conflict.195

Article 55 may apply to the destruction of an oil tanker and, a fortiori, of a nuclear-powered vessel at sea provided that the civilian population on land is

affected. Such consequences are conceivable when the destruction happens in the

territorial seas196 or in the Exclusive Economic Zones of States, but are less likely

further away from the coasts and particularly on the high seas. By contrast, assuming that the purpose of Article 35(3) is to protect the environment per se, the

provision may be relevant for the entire marine environment, irrespective of benefits to mankind.

However, the high triple standard needs to be satisfied for both Articles 35(3)

and 55. Precisely because there are few conventional means and methods of warfare which would cause or may be expected to cause environmental damage of the

severity, duration and spatial dimensions envisaged, the environmental provisions of Additional Protocol I are regarded as of little relevance for naval

conflict.197 The discussions leading up to the 1994 San Remo Manual confirm

that there is a great deal of uncertainty regarding the relevance of the environmental provisions of the new jus in bello for naval warfare. Significantly, the

provision included in the Manual does not employ any of the terminology of the

Protocol (or of ENMOD), but refers to the underlying principles of the law of

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armed conflict and uses a “due regard” clause borrowed from the peacetime law of

the sea:

Methods and means of warfare should be employed with due regard for the natural

environment taking into account the relevant rules of international law. Damage to

or destruction of the natural environment not justified by military necessity and

carried out wantonly is prohibited.198

Similarly, in the U.S. Navy’s Commander’s Handbook on the Law of Naval

Operations, “due regard” language has been adopted, but no reference is made to

either Additional Protocol I or ENMOD.

. . . the commander has an affirmative obligation to avoid unnecessary damage to the

environment to the extent that it is practicable to do so consistent with mission

accomplishment. To that end, and so far as military requirements permit, methods

or means of warfare should be employed with due regard to the protection and

preservation of the natural environment. Destruction of the natural environment

not necessitated by mission accomplishment and carried out wantonly is prohibited.

Therefore, a commander should consider the environmental damage which will

result from an attack on a legitimate military objective as one of the factors during

targeting analysis.199

Finally, a word needs to be said about the environmental provisions of the 1980

“Inhumane” Weapons Convention. The preamble of the Convention recalls that

it 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.

Leaving aside the unsettled status of Article 35(3) of Additional Protocol I, it is

worth observing that the reminder is placed in the preamble of the 1980 Convention

only. Nonetheless, France attached an express reservation pursuant to which she regards Article 35(3) as binding only on States parties to Additional Protocol I.200

Furthermore, Article 2(4) of the third protocol of the 1980 Convention on incendiary weapons, prohibits attacks on:

. . . forests and other types of plant cover, unless they are used to cover, conceal or

camouflage combatants or other military objectives or are themselves military

objectives.

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It should be noted that this protocol covers only weapons primarily designed to

set fire to objects, not those where fire is incidental or consequential.201 Moreover, the exception of military necessity in Article 2(4) seems so encompassing

that it is doubtful whether the provision affords any serious protection to vegetation. The instances in which “forests and other types of plant cover” are not used

during armed conflict “to cover, conceal or camouflage combatants or other military objectives or are themselves military objectives” must be rare.

For these reasons, the 1980 Convention does not contribute significantly to the

protection of the environment in armed conflict.

2.2.6. Responsibility and Liability for Violations of Environmental Jus in Bello

Breach of jus in bello obligations may entail State responsibility or individual

criminal responsibility, or both.202 First, State parties are required to take measures necessary for the suppression of all violations of the laws and customs of

war.203 Secondly, State parties are required to enact effective penal legislation to

punish grave breaches, to search for the perpetrators, and to either try or extradite

them.204 There are also provisions of the Hague Conventions which are expressly

addressed to State parties, breach of which will engage their responsibility.205

Even if certain jus in bello provisions are not specifically addressed to States,

their responsibility might still be engaged. Since armed forces are to be regarded

as organs of a State, their conduct will be attributable to the latter if they act in official capacity.206 This is simply an application of the general mechanisms of State

responsibility. Case law has interpreted this principle broadly. States have been

held responsible for acts which were ultra vires, provided that the soldiers acted at

least apparently in capacity.207

However, the law of armed conflict may depart from the general principles of

State responsibility in regard to unofficial private acts which a State was not negligent in failing to prevent. Arguably, the text and the drafting history of Article 3

of Hague Convention (IV) of 1907 and of Article 91 of Additional Protocol I imply

that a State may be held liable for violations by soldiers acting outside the scope of

their official duties.208 Thus, in Eis et al. (1959) the U.S. Foreign Claims Settlement Commission imputed the widespread pillage and destruction of neutral

property by Imperial Russian soldiers in 1915 to the Soviet government.209

Although there have been several occasions in which States paid compensation

for damage caused by their armed forces, particularly to third (neutral) States,

there is no indication that the articles in question have ever been relied on explicitly.210 State responsibility has on the whole played a minor role in the

enforcement of jus in bello.

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As for individual criminal responsibility, whilst all violations of jus in bello may

be characterised as war crimes in the sense of an internationally recognised

wrong, only certain violations of the Geneva Conventions of 1949 qualify as grave

breach. These are specified grave violations of jus in bello committed wilfully, or at

least intentionally, and against different groups of protected people by each convention. The perpetrators of grave breaches must be tried, and any State may

assert universal jurisdiction to do so. The Geneva Conventions require proceedings to be brought both against those who commit grave breaches and those who

order their commission.211

Additional Protocol I has extended the concept of grave breaches to certain

acts forming part of the conduct of hostilities,212 and to wilful omissions,213 although the latter aspect was probably already customary law.214 The latter

protocol introduces also a new concept— “serious violations” of the Geneva Conventions and the Protocol—for which the International Fact-Finding

Commission may be competent and which should also be made punishable by

belligerents.215

Whilst States have the obligation to prosecute or extradite perpetrators of

grave breaches, States arguably have the right to assert universal jurisdiction also

in respect of other, “nongrave” breaches.216

Applied to the environmental jus in bello provisions discussed above, it should

be noted first that breaches of the customary principles of the laws of armed conflict as well as violations of the Hague Conventions, however serious, will not

amount to grave breaches or serious violations. Only violations of the Geneva

Conventions or Additional Protocol I can qualify as such.217

As mentioned above, the Geneva Conventions contain an identically worded

provision according to which the “extensive” destruction and appropriation of

property protected under the relevant conventions, not justified by military necessity and carried out unlawfully and wantonly, qualify as a grave breach.218

Pursuant to Article 85(3)(b) and (c) of Additional Protocol I certain wilful violations of Articles 54 and 56 qualify as grave breaches provided that, inter alia,

death or serious injury of civilians was caused and that there was knowledge that

this would be the result. By contrast, Article 85(4)(d) does not require such an anthropocentric aim for grave breaches committed against certain elements of

cultural and spiritual heritage which are protected by Article 53.

Although violations of Articles 35(3) and 55 may amount to war crimes—in the

sense of a violation of the laws of war219—they are not included in the list of grave

breaches in Article 85 of the Protocol.220 This is perceived as a lacuna in the literature,221 and the ILC seeks to remedy this by suggesting to include into a Code of

Crimes against the Peace and Security of Mankind the war crime of:

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Using methods or means of warfare not justified by military necessity with the

intent to cause widespread, long-term and severe damage to the natural environment

and thereby to prejudice the health and survival of the population and [when] such

damage occurs.222

Whilst the ILC characterises its proposal as based on Articles 35 and 55 of Additional Protocol I, there are substantial differences. First, only crimes committed

“in a systematic manner or on a large scale” will so qualify. Second, unlike Articles 35(3) and 55,223 the ILC proposal covers only intentional damage. Third,

while the threshold of environmental damage was taken from Articles 35(3) and

55, the ILC has couched its proposal in even more openly anthropocentric terms

than Article 55(1). Fourth, the ILC proposal introduces a questionable defence of

military necessity.224 In view of the controversies surrounding the existing provisions of Additional Protocol I, one may well wonder whether the ILC proposal will

not add to the confusion in this area.

2.2.7. Conclusions on Jus in Bello

The traditional Hague and Geneva treaty law contains provisions that may offer either indirect protection to the environment and its components through

provisions aimed at civilians, or direct protection for those environmental resources that can be qualified as real or personal property. Particularly after the

1990–1991 Gulf war, the merit of these provisions for environmental protection

purposes has been rediscovered. There is however, controversy on their value.

Some authors point out that most of these older jus in bello provisions were enacted in a “pre-ecological” frame of mind, that they are very anthropocentric in

scope, protecting primarily combatants and civilians or their property, that they

leave too much discretion to the military commander and place excessive reliance

on the good faith of the belligerent.225 Others claim that these old provisions have

been grossly underestimated with respect to their environmental value. They

point out that the traditional provisions of the Hague and Geneva law have been

more widely accepted than the new “environmental” jus in bello provisions

adopted since the mid-1970s.226

In addition it was seen that the provisions of both ENMOD and Additional Protocol I were written with the Vietnam legacy in mind. It has been forcefully

argued that they no longer correspond to modem concepts of IEL because of their

narrow focus on environmental damage.

227 An even more damning judgement

comes from ecologists. They argue that failing further legal directives expressed

in relative terms, they find it impossible to determine whether environmental

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damage was caused on the basis of the threshold provisions of Additional Protocol

I. The reason is that natural scientists may be able to measure change in ecological

processes, but in order to establish whether this fulfils the legal concept of “damage,” baseline data are needed as well as legal directives as to what constitutes

excessive change.228 This may partly explain the disagreement as to whether any

of the damage caused by the oil spills and fires in the 1990–1991 Gulf war technically crossed the threshold of Additional Protocol I.229

Therefore, the protective merits of the new “environmental” jus in bello, and

particularly of the provisions which mention the natural environment by name,

remain debatable. The more significant limitations on the causing of environmental damage in international armed conflict will still derive primarily from the

underlying principles of the law of armed conflict and from the traditional Hague

and Geneva law.

It is now unlikely that the many international efforts aimed at reevaluating the

environmental jus in bello after the 1990–1991 Gulf Conflict will lead to the negotiation of new treaty provisions dealing with environmental protection during

armed conflict. However, the many studies published since 1991 may, in time,

lead to a clarification and possibly even further development of the environmental jus in bello. In addition, it has been forcefully demonstrated that wider

adherence by States, subsequent national implementation, as well as strict observance of the existing body of jus in bello provisions would yield tangible benefits

for the environment. An example of improved national implementation is that

there has been a marked increase in the number of military manuals and other

types of publications that include environmental protection provisions.230

2.3. Modern Jus ad Bellum and Environmental Protection

The modern jus ad bellum consists primarily of the provisions of the UN Charter. Under the collective security system that came into force with the UN, war

and the use of force have become, in the words of Kelsen, either a delict or a sanction: a delict, if waged in violation of the law; a sanction, if carried out in its

defence or enforcement.231 As is clear from the preamble, the drafters of the UN

Charter were determined “to save succeeding generations from the scourge of

war.” To achieve this end, Article 2(4) of the Charter replaces the much abused

term “war” with the more objective threshold of “threat or use of force:”

All Members shall refrain in their international relations from the threat or use of

force against the territorial integrity or political independence of any state, or in any

manner inconsistent with the Purposes of the United Nations.

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Moreover, exceptions to Article 2(4) are narrowly circumscribed: the right to use

armed force is bestowed on States individually or collectively, but only when acting

in self-defence and until the Security Council has taken the measures necessary to

maintain international peace and security under Chapter VII of the Charter.232

The Security Council’s actions under Chapter VII are conditional on the determination of the existence of three events—threat to peace, breach of peace or act

of aggression—after which it can make either a recommendation or a binding decision pursuant to Article 39. The measures which the Security Council can

decide upon accordingly are “measures not involving the use of force” (Article 41)

and “action by air, sea, or land forces” (Article 42). Article 48 provides that Chapter VII actions shall be taken by all UN members or by some of them, as

determined by the Council, whilst Articles 52 and 53 of the Charter provide that

regional organisations may undertake enforcement actions with Security Council

authorisation.

The fundamental nature of the change brought about by the UN Charter cannot be over-emphasised. The ILC has since long suggested that the prohibition to

use armed force in international relations is peremptory (jus cogens),

233 and the ICJ

is widely regarded as having subscribed to this view in the 1986 Nicaragua case.234

In addition, the “the outlawing of acts of aggression,” was mentioned as a prime

example of an obligation erga omnes by the ICJ in the 1970 Barcelona Traction

case.235 The norm expressed in Article 2(4) of the Charter is considered binding,

even by the few States which are not yet members of the main UN organisation,

most notably Switzerland.236

Furthermore, in the ILC’s draft on State responsibility, the (aggressive) use of

armed force in violation of the UN Charter is qualified as an international

crime,237 which, in contrast to traditional State-to-State wrongs, entails legal consequences not only for the offending and injured States, but for all States of the

international community.238

While the ILC’s proposal to distinguish between two types of international

State wrongs—crimes and delicts—has attracted great controversy,239 most sceptics acknowledge that there may be different categories of violations of primary

obligations in international law, which should entail different consequences

based on the seriousness of the international wrong. Furthermore, even the most

passionate critics appear less reticent to label the use of force by a State in violation of Article 2(4) of the UN Charter as a theoretical or potential State crime.240

A third indicator of the importance of Article 2(4) of the UN Charter is the

ILC’s Draft Code of Crimes against the Peace and Security of Mankind; it proposes universal criminal jurisdiction for the individual who commits an act of

aggression under international law.241

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A fourth indicator is the notion of state complicity in international law. Although

it has been highlighted only recently,242 the prohibition for a State to deliver aid or

assistance for the commission of an international wrong by another State is regarded

as customary law.243 The majority of acknowledged cases of State complicity relate to

the violation of the prohibition to use armed force in international relations, such as

States permitting the use of their territory for the commission of an act of aggression,244 or which have political and other dealings with States that have committed

violations of international law,245 or which provide material aid in the form of money

or goods to a State enabling the latter to commit aggression.246

2.3.1. Limitation of the Resort to Armed Force

By limiting resort to armed force in international relations, jus ad bellum aims

at reducing the incidence of armed conflict and consequently environmental

damage as well. Logically, therefore, jus ad bellum, insofar as it is aimed at keeping

or restoring international peace and security, must be seen as an integral part of

the international legal protection of the environment. Conversely however, since

the UN Charter does not outlaw all instances of use of armed force in international relations, environmental destruction will in some cases be the inevitable

consequence of lawful use of force under the UN Charter.

Still, the view that environmental protection is subject to jus ad bellum is (no

longer) universally shared. In particular, before the start of Desert Storm, it was

feared in some circles that armed intervention in this oil rich Gulf region would

lead to apocalyptic environmental damage. This prospect was then used to urge

governments to desist from using any armed force at all, even if it meant that the

illegal occupation and annexation of Kuwait would not be reversed.247 In addition, the actual environmental legacy of Desert Storm has convinced some

scholars that the idea of using armed force, however just its cause, should be abandoned altogether if such widespread damage to the theatre of armed conflict

cannot be avoided.248 What these reactions imply is that States are under an obligation to protect the environment from very serious (or possibly catastrophic)

damage at all cost, even if this means setting aside provisions of the UN Charter. A

similar but more restricted argument was recently made before the ICJ in regard to

the advisory requests on the Legality of Nuclear Weapons.249

However, it is doubtful whether this view reflects current majority thinking.

Principle 24 of the 1992 Rio Declaration, agreed one and a half years after Desert

Storm, declares that “Warfare is inherently destructive of sustainable development.” However, it does not set a threshold of environmental damage above

which use of armed force should be abandoned. Instead, States are urged to:

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. . . respect international law providing protection for the environment in times of

armed conflict and co-operate in its further development, as necessary.

Furthermore, whilst the ICJ expressly endorsed Principle 24, it rejected the

view that environmental obligations could override a State’s right to use armed

force in self-defence under international law.250

2.3.2. Rules on the Continuation of Armed Force

There is a strong current of opinion according to which modem jus ad bellum is

much more than a branch of the law of peace; it is said to contain not only rules on

the lawfulness of the initial use of force, but also on its continuation, thereby regulating the conduct of armed forces.251 In this view, an initial use of armed force,

even if in principle lawful, will continue to remain so only on condition that the

principles of necessity, reasonableness and proportionality are complied with, in

addition to any directives issued by the Security Council.252 While not universally accepted,253 the ICJ seemed to have endorsed this view by noting in the

Nicaragua case that:

. . . whether the response to the attack is lawful depends on observance of the criteria

of the necessity and the proportionality of the measures taken in self-defence.254

The ICJ’s Advisory Opinion on the Legality of Nuclear Weapons has been hailed

as a further confirmation of this view, not only with regard to the use of armed

force within the context of self-defense in general,255 but also in a specific environmental context. Indeed, the Court held that:

States must take environmental considerations into account when assessing what is

necessary and proportionate in the pursuit of legitimate military objectives.256

If this interpretation is correct, the UN Charter may imply that variable limits are set on the region of war.257 Under traditional law, the region of war

comprised all areas under jurisdiction of the belligerents—land territory, territorial waters and internal waters and the superjacent air column above these—in

addition to the high seas.258 Under current international law, the region of war

has not only been modified by the various jurisdictional zones introduced by

the new law of the sea;259 modern jus ad bellum limits participants to those parts

where use of armed force is both necessary and proportionate.260 As Professor

Greenwood writes:

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The traditional assumption that the outbreak of war between two States necessarily

involved hostilities between their armed forces wherever they meet, can no longer be

regarded as valid.261

The 1994 San Remo Manual contains three provisions in which this view is

adopted for armed conflict at sea, although many of these proved controversial.262

2.3.3. Liability for Environmental Damage as a Result of Lawful Use of

Armed Force

As seen earlier,263 one of the ongoing debates within IEL concerns the following question: whether causation of (severe) environmental damage is always an

international wrong in itself or whether environmental damage should in some

cases be considered an unfortunate by-product of a lawful activity for which a separate regime of liability is necessary. The ILC has taken the latter view, having

since 1978 worked on a regime for the “International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law.”

The ILC’s model seems well-suited for armed conflict, for it is incontrovertible

that under the laws of armed conflict environmental damage will be caused as a result of State activities which may be either lawful or unlawful. Thus, when a State

resorts to use of armed force in self-defence, keeps its response within the requirements of Article 51 of the UN Charter, and complies with all relevant

requirements of jus in bello, the environmental damage caused by this act will be a

by-product of what is in essence a lawful activity: use of armed force in

self-defence.

This is in line with the ICJ’s advisory opinion on the Legality of Nuclear

Weapons, where it was held that obligations to protect the environment could not

deprive a State of its right of self-defence under international law.264 Unfortunately, the work of the ILC on State liability for lawful activities contains an

exemption based on national security, as well as for armed conflict.265

2.3.4. Liability for Environmental Damage Based on Breaches of Jus ad

Bellum

Any breach of international law by a State engages its international responsibility as well as its liability, that is, the duty to make reparation.266 Since a breach

of jus ad bellum is a breach of international law, the responsible State’s liability

should be engaged for any damage caused in consequence. Although international claims on the basis of violation of jus ad bellum have been rare, there is no

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doubt about the general principle.267 Therefore, a State guilty of aggression or of

any other violation of the rules of international law on the use of force is bound to

make reparation for all losses caused by such violation, including environmental

damage.268 On the assumption that a breach of jus ad bellum amounts to an international crime of State, consistent with the ILC’s theory of State Responsibility, it

entails legal consequences that go beyond the mere duty to compensate the victim

State(s).269

One of the most notable instances after World War II in which a State has been

held responsible and liable for breaching jus ad bellum took place after the

1990–1991 Gulf war. Once hostilities ceased, the Security Council proceeded with

the imposition of cease-fire conditions on Iraq, pursuant to the Security Council

Resolution 687 (1991) of 3 April 1991. This “cease-fire resolution” comprises 43

paragraphs and subjects Iraq to a strict regime of obligations, commands, controls, and “reparations.” Some have likened it to the Versailles Peace Treaty,270

others to the trusteeship system of the UN Charter.271

The resolution is significant, for it establishes Iraq’s liability for all direct

losses caused by its breach of jus ad bellum, including environmental damage. In a

clause reminiscent of the Versailles “War Guilt” Clause, Article 16 determines

Iraq’s liability under international law following its illegal invasion and occupation of Kuwait:

Iraq . . . is liable, under international law, for any direct loss, damage, including

environmental damage and the depletion of natural resources, or injury to foreign

Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and

occupation of Kuwait.

In addition, the Resolution establishes a fund to pay for the compensation

claims and a UN Compensation Commission (UNCC) charged with assessing the

claims and administering the fund.

Although the military tribunals of World War II already considered forms of

war damage which may have environmental implications,272 Resolution 687 is

unique in that environmental damage is expressly and prominently dealt with in

the context of war reparations. While some view this as innovation by customary

law superseding treaty law,273 others regard it as no more than an application of

the general principles of State responsibility and liability.274

The claims for environmental damage will present the UNCC with many technical and juridical difficulties. However, many of these problems will not be

unlike those encountered in non-war related disasters: identification of the exact

source of the damage, establishment of the causal relationship between cause and

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effect, assessment of the magnitude of the damage, and quantification of damages.

Since “standing” to bring environmental claims has been given not only to governments but also to international organisations, it was argued that damage to

international areas or to the environment, as such, might be compensated.275

However, a UNEP working group concluded in 1996 that claims in relation to international areas were hypothetical since there were no high seas areas in the

Persian Gulf and the available evidence did not disclose measurable damage to international areas.276

It is important to note also that since Iraq’s liability has been based on breach

of jus ad bellum, many of the distinctions and limitations inherent in the application of provisions of jus in bello to environmental damage will not be relevant.277

2.3.5. Final Observations on Environmental Implications of Jus ad Bellum

However impressive the above may seem, cases of State liability for illegal use

of armed force in international relations remain rare, particularly if one looks at

the incidence of the breaches. An obvious reason is that the UN collective security

system rarely produces authoritative judgements on violations of jus ad bellum,

which makes the identification of the guilty party controversial.

A further fundamental reason is that the imposition of damages for breaches of

jus ad bellum following armed conflict is usually a one-sided affair. Most conspicuously, the exaction of war reparations after the first and Second World War placed

the vanquished State(s) at the mercy of the victor State(s), often in disregard of violations of jus ad bellum.278

A final and no less fundamental reason is linked with one of the paradoxes of

the law of armed conflict, namely the duty to discriminate between legal and illegal uses of force under jus ad bellum, coupled with the equality of all parties before

jus in bello. International law has thus far failed to reconcile liability for breaches

of jus ad bellum with liability for breaches of jus in bello.279 One school of thought

argues that it is counter-productive to punish a violator of jus ad bellum for acts

done pursuant to jus in bello.280 A second school holds that an aggressor State

should be held liable for all damage caused as a consequence of its aggression,

even if some actions were allowed by jus in bello, and even if some of the damage

was caused by its adversaries, provided that the latter complied with jus in bello.

281

The third school believes that the aggressor should compensate even damage

caused by unlawful acts of the victim State.282

The work of the UNCC thus far shows that it applies the second view, with this

proviso: it has thus far not been called upon to examine whether the damage

caused by Coalition military actions complied with the laws of armed conflict.

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The UNCC relies heavily on the finding that Iraq has breached jus ad bellum, and

that she has accepted liability pursuant to the terms of the cease-fire resolution.283

In furtherance of express policy clarifications to this effect, the UNCC refuses to

give Iraq credit for actions which were lawful under jus in bello. This is evident

from decisions of principle taken by the UNCC according to which Iraq is liable for

any loss suffered as a result of “military operations or threat of military action by

either side.”284

These principles were applied in the first environmental award, rendered by

the UNCC on 18 December 1996.285 The Well Blowout Control Claim concerned

damages sought by Kuwait Oil Company for the costs incurred in planning and

executing the work of extinguishing the well-head fires that were burning upon

the withdrawal of Iraqi forces from Kuwait. Although the UNCC expert panel admitted that part of the damage for which compensation was sought “may be a

result of the allied bombing, it held that the bulk of the damage was done by Iraq

and that the latter was in any event liable for damage caused by either side in the

conflict.286

2.4. Environmental Implications of the Law of Neutrality

2.4.1. Pre-Charter Neutrality Law

A. Neutral Duties. Under the ideal precharter model, States (about to be) involved in armed conflict were expected to issue declarations so as to create a state

of war between themselves, whereas third States were to issue declarations of neutrality.287 The advantages of the legal concept of the “state of war” was that it

marked the moment at which the national and international rules applicable during peace were replaced by those applicable during war.288

The existence of a state of war did not have any consequences for the legal

relationships among non-participating States, for these remained governed by

the law of peace. It had consequences, however, for the legal relationships between neutral States and belligerent States. Although in principle governed by

the law of peace, they became subject to the requirements of the law of neutrality. Neutral States were required to comply with a series of classic neutral

duties:289

The duty of non-involvement, non-interference or abstention: Trade by neutrals with belligerents is permitted but special rules apply to the supply of war

material. Over land, neutral governments need to abstain from supplying war material to belligerents; over sea, neutral governments are expected to prevent all

public and private trade in war materials with belligerents;

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The duty of prevention: A neutral Power is obligated to use all means at its disposal to prevent violations by belligerents of its neutrality. This encompasses a

duty to prevent the violation of its territorial integrity by belligerents, to prevent

the use of its territory, waters or airspace by either belligerent, and the prevention

of the commission of acts of hostility within its jurisdiction. It also implies that a

neutral Power has the duty to use force, as necessary, to prevent or punish such violations of neutrality;

The duty of impartiality and non-discrimination: Any conditions, restrictions

or prohibitions issued by a neutral Power, for instance in regard to admission into

its ports, need to be applied in a non-discriminatory manner to all belligerents.

B. Protection to Neutrals offered by Pre-Charter Law. Provided that third

States complied with their neutral duties, belligerent States were to respect their

choice not to become a participant. It was only in certain well-defined respects

that neutral States had to tolerate certain consequences of the existence of armed

conflict between belligerent States. The former had to prove that they complied

with neutral duties, which meant that they had to subject themselves to constant

monitoring. They might also be requested to adjust their trade relations with certain belligerents to comply with their duties in respect of war material.290

The advantage of this régime for neutral States was obvious. They were entitled to remain outside the conflict and to maintain economic relations with

belligerents subject to adjustments and measures of control, particularly at sea.291

Neutrality law was a means of limiting the scope of international conflicts by declaring neutral States’ territory, waters and airspace, in principle, off-limits to

belligerents.

What the environmental implications of the regime of neutrality might be will

now be examined in more detail. The law of neutrality was a flexible regime; its

implications for neutral and belligerent States depended on the particular circumstances. Only part of the customary law of neutrality has been codified in

formal instruments.292 Amongst these, the 1907 Hague Convention (V) on the

Rights and Duties of Neutral Powers and Persons in Case of War on Land is regarded as reflecting customary international law. Article 1 provides that:

“The territory of neutral Powers is inviolable.”

The convention does not define the term “inviolable.” The conference records

indicate that the provision was added to stress that neutral States do not only have

the many duties listed in the convention, but that these flow from inhibitions of a

general character that apply in the first place to belligerents. Article 1 was seen as

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introducing the acts from which belligerents must abstain.293 However, its exact

scope is not clear, and two interpretations are possible. The narrow one views Article 1 as the counterpart of the many duties incumbent on neutral States, which

relate primarily to proving, enforcing, and defending their neutrality and impartiality. The second one is more expansive, and confers on neutral territory

immunity from interference by belligerents.294

The 1907 Hague Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War does not contain a provision comparable to Article 1 of

Hague Convention (V), but it has two provisions on belligerent duties in the territorial waters of neutral states. Article 1 of Hague Convention (XIII) obligates

belligerents:

. . . to respect the sovereign rights of neutral Powers, and to abstain in neutral

territory or neutral waters, from any act which would, if knowingly permitted by any

Power, constitute a violation of neutrality.

Article 2 stipulates that:

. . . any act of hostility, including capture and the exercise of the right of search,

committed by belligerent warships in the territorial waters of a neutral Power,

constitutes a violation of neutrality and is strictly forbidden.

The conference records indicate that both articles were inserted to stress the

general duty of belligerents to respect the sovereignty of neutral States, indicating

that the principle was the same as Article 1 of the Hague Convention (V) for land

warfare.295 Particularly enlightening are the following passages from the report to

the Third Commission on the rights and duties of neutral powers in naval war:

The starting-point of the regulations ought to be the sovereignty of the neutral State,

which cannot be affected by the mere fact that a war exists in which it does not

intend to participate. Its sovereignty should be respected by the belligerents, who

cannot implicate it in the war or molest it with acts of hostility. At the same time

neutrals cannot exercise their liberty as in time of peace; they ought not to ignore the

existence of war.296

and:

The principle which it is proper to affirm at the outset is the obligation incumbent

upon belligerents to respect the sovereign rights of neutral States. This obligation is

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not a consequence of the war any more than the right of the State to inviolability of

its territory is a consequence of its neutrality. The obligation and the right are

inherent in the very existence of States. . . .297

When read together, the clarifications provided by the travaux of both Hague

conventions strongly suggest that the articles in question were a reference to the

general principles of State sovereignty and the duty of belligerents to respect these

whilst engaged in warfare.

There is no comparable formal instrument for Aerial Warfare, although in

1923, a commission of jurists drafted the influential Hague Rules of Air Warfare.298 Article 39 of these rules provides:

Belligerent aircraft are bound to respect the rights of neutral powers and to abstain

within the jurisdiction of a neutral state from the commission of any act which it is

the duty of that state to prevent.

Article 40 stipulates that:

The airspace of a neutral state is inviolable.

Again, these provisions embrace both elements: a duty for belligerents to respect the sovereign rights of neutral States and the narrower issue of impartiality.

There are many examples of State practice related to incidents during World

War I and II, in which belligerents paid compensation for unlawful entry of neutral territory and destruction of neutral property. The 1938 Naulilaa case is one of

the rare judicial cases to deal with unlawful acts of warfare committed by a belligerent (Germany) on neutral (Portuguese) territory.299 Most neutral States’ claims

were settled only after protracted negotiations, ending either in diplomatic settlements, in formal treaties or the set-up of mixed tribunals. Thus, the USSR paid the

Swedish government 40,000 Swedish kroner because of an aerial attack upon

Pajala during the First Finnish War.300 In 1949 the United States and Portugal

reached an overall financial settlement for four incidents in which the former

bombed the Portuguese territory of Macao.301

The overwhelming majority of documented cases concern Switzerland, which

was a neutral in both world wars and suffered from countless incursions by

belligerents, not all apparently in error.302 The most serious of these incidents

concerned a full scale raid by the U.S. Army on the Swiss territory of Shaffhausen

on April 1, 1944, as a result of which 37 persons were killed and 50 gravely injured.

The settlement of Swiss claims for compensation took several years.303

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Three incidents merit special attention because of their potential environmental relevance.

In 1948 the Vatican presented the United States with claims totalling $1.5 million for damage done to property of the Vatican City, the neutrality of which the

Allies had agreed to respect. The settlement of the claims took several years and

was finalised in 1956. The claim related to damage done to the papal residence of

Castelgandolfo, which lies outside Vatican City south of Rome. It appears that the

property had been damaged by air raids on legitimate targets in close proximity

thereto. This example of State practice is remarkable for two reasons: firstly, compensation was paid by a former belligerent for transfrontier collateral damage

caused to neutral property; secondly, the damage was caused by 1awful military

activities on enemy belligerent territory bordering or surrounding neutral

territory.

A comparable example are the cases known as “Fernschaden,” for which Switzerland tried to obtain compensation. During World War II, there were several

instances in which Swiss border towns suffered destruction through shockwaves

caused by bombing campaigns on belligerent territory.304

A further example with obvious environmental relevance were the consequences for Switzerland of the destruction of the Kembs Waterworks on October

7, 1944, by the Royal Air Force. In the 24 hours following the busting of this German dam, the banked headwaters of the Rhine had dropped so much that

riverboats in the Swiss harbour of Basle were damaged and grounded in the

mud.305

What the above cases of State practice show is that belligerent States have in

the past acknowledged liability for damage to neutral States caused by 1awful acts

of war executed in the territory of enemy belligerent States. Whereas cases of

transborder war damage caused, e.g., by Germany to Switzerland, might have

been solved on the basis of the principle of good neighbourliness between States,

it was clear that this principle was hardly applicable in cases of air raids by the

United States and UK on German territory.

After World War I the Swiss Federal authorities examined the principles underlying their claims for war damage caused by belligerents. In a written opinion,

Burckhardt confirmed that they were not based on any special privileges Switzerland would be entitled to because of her perpetually neutral status, and that they

were no more than the exercise of rights to which any State is entitled.306

C. Introduction to Contemporary Environmental Significance. The contemporary relevance of the principle of neutrality for environmental purposes is,

as will be seen further, a matter of debate.307 The following observations seem,

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nevertheless, in order. The law (or principle) of neutrality is sometimes said to offer immunity to the territory and the environment of neutral States and, by

analogy, to international areas.308 Such arguments were also advanced before the

ICJ by States opposing the legality of nuclear weapons.309

These arguments, however, suffer from three difficulties. First, the traditional

law of neutrality did not offer genuine immunity to neutral States from acts of

warfare. The analysis conducted above310 shows that the basis for the protection

of neutral States in armed conflict was the duty of belligerents to respect other

States’ sovereignty (and territorial integrity). Respect for other States’ sovereignty is a dynamic concept in international law: it may have a different content

today compared with 1907. It is not so much a duty especially developed for

armed conflict, but the expression of a general principle, applicable in peace and

in war.

In this sense, armed conflict is but one example of a situation in which States

are obligated to respect the sovereignty of third States. It may be that one is bound

to find fewer peacetime cases in which State A causes damage to State B through

activities executed in State C. Even so, under general (peacetime) environmental

law, these cases do not present any special problems of principle: military activities conducted by State A outside its jurisdiction are to be considered as being

under States A’s control and are therefore covered by Principle 21.

The second difficulty relates to international areas. The protection offered to

neutral States under the traditional law of neutrality did not deal with environmental damage as such caused in international areas. The obvious reason is that

the high seas—the only international area of historic relevance—formed part of

the legitimate region of war by reason of customary law. The interface between

the modern law of the sea and the law of armed conflict will be further addressed

below.311 Yet, it seems prima facie questionable to apply the pre-ecological principle of neutrality, whatever its contents, by analogy to modern day international

areas.

The third difficulty relates to the incompatibility of neutrality with certain obligations arising from the UN Charter, which will now be discussed.

2.4.2. Post-Charter Neutrality Law

A. Influence of the UN Charter and Decline of the State of War. Under current international law, the legal relationship between belligerent States and third

States is highly unsettled. There are two interrelated factors that led to this state

of affairs: the influence of the UN Charter on the law of neutrality and the decline

of the legal concept of the state of war in international relations.

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The law of neutrality was developed in an era when resort to armed force was

not in itself illegal, i.e., when war was regarded as a mere duel between States to be

treated in the same chivalrous and distant manner with which the matter was

once viewed by domestic law.312 However, under the collective security systems

that were developed during this century, inter-State use of armed force is no longer a “neutral” activity: it is either legal or illegal. Provided that the Charter’s

collective security system works, no State should be left in doubt about the lawfulness of the position of each participant to the conflict. Positions of neutrality in

the face of unlawful uses of force in international relations are logically and ideologically incompatible with the Charter.313

However, the Charter does not contain guidelines for when the collective security machinery is not operative or when it is blocked. During the 1980–1988

Iran-Iraq War, the Security Council refrained from expressly identifying the initial aggressor and was only able to adopt a binding decision on the conflict as a

whole, seven years into the war.314 This contrasts sharply with the alacrity displayed by the Council in August 1990: a few hours after Iraq invaded Kuwait, the

Council passed a resolution condemning the invasion and demanding an immediate withdrawal.315

Assuming that the Security Council does not perform its role of arbiter, that

the General Assembly does not step in and that ICJ is not seized of the matter either, there will be no binding or authoritative decision on the rights or wrongs of

the use of force. As a result, States not involved in the conflict are left to their own

devices; in these circumstances, it is commonly argued that the traditional body

of neutrality law resumes importance.

At the same time, the significance of the state of war in international relations

has declined. The decline is due partly to the outlawing of war by the UN Charter,

although examinations of pre-Charter State practice have shown that non-war

hostilities were quite common.316

Still, it has been demonstrated that a state of war is relevant in contemporary

law and State practice.317 Many States continue to regard the creation of a legal

state of war as a possibility. In addition, when a State currently decides to treat a

particular conflict as “war,” whether involving use of armed force or not, it implies hostile intent, or extensive war aims—the “animus belligerandi”—and may

now be qualified as a threat to use force in the sense of Article 2(4) of the UN Charter. This may influence the body of non-hostile relations between belligerents

and may entail consequences for relations between belligerents and third

States.318 A state of war, as will be seen in the next chapter, has further considerable implications for constitutional and municipal law and is usually taken as a

firm directive to municipal courts of the countries involved in the conflict.319

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Some writers claim that whereas a legal state of war was once required to bring

the law of neutrality into operation, today, the existence of armed conflict is sufficient.320 But this is not borne out by State practice. In the absence of general

recognition that a certain conflict amounts to war, third States cannot be forced to

accept positions of neutrality. This means that neutrality is invoked primarily in

conflicts with a certain intensity.321 However, State practice indicates also that

overt declarations of neutrality by third States are rare and that there is much uncertainty about the validity of any appeal to or application of neutrality law by

non-participating States.322

This may be illustrated by the attitudes of third States in the 1980–1988

Iran-Iraq and the 1990–1991 Gulf conflicts.

The first is often cited as a paradigm of a classic inter-State armed conflict during which the UN Charter system failed, as a result of which traditional neutrality

law was revived. However, on closer examination, this conflict shows that third

States have felt free to select a panoply of positions varying from: (a) strict traditional neutrality; (b) a position variously termed “qualified” neutrality,

“benevolent” neutrality or “non-belligerency,” in which third States side with

one of the parties to the conflict, discriminating against the State considered to be

the aggressor, but without physically participating in the hostilities; or (c) a new

form of impartiality and nondiscrimination between belligerents, whereby no

formal position is adopted and assistance is delivered to all sides.323

Most surprising of all examples is the picture of third States’ attitudes during

the 1990–1991 Gulf war. In spite of the clear identification of the aggressor by the

Security Council, Iran and India officially proclaimed their neutrality.324 In addition, two UN Member States (Israel and Jordan) became more or less actively

involved as non-belligerents on opposite sides of the conflict,325 whilst two permanently neutral States (Austria and Switzerland) dropped their traditional

stance of neutrality.326

B. Current Significance of Neutrality Law. Depending on the frequency with

which the UN collective security system will work in the future, the law of neutrality may or may not retain some of its earlier importance. It is beyond doubt,

however, that the Hague law on neutrality is in serious need of update and that

such a restatement will have to reflect the more marginal position which neutrality occupies in contemporary international law.

Neutrality still has a place under the Charter, but subject to the provisions of

contemporary international law. Unlike the putative ban on aggression contained

in the Covenant of the League of Nations, the ban on the use of force in international relations is no longer inseparably linked to the effectiveness of the Security

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Council.327 This follows clearly from the celebrated statement by the ICJ in its

very first judgement, the Corfu Channel case:

The Court can only regard the alleged right of intervention as the manifestation of a

policy of force, such as has, in the past, given rise to most serious abuses and such as

cannot, whatever be the present defects in international organization, find a place in

international law. . . . 328 (italics added)

The principle that the non-use of force is not dependent on the functioning of

the collective security system was confirmed by the ICJ in the Nicaragua case.329

This means that whilst a third State may assume the status of a neutral, she

may be obligated to participate to varying degrees in economic and military enforcement measures based, e.g., on Articles 25, 41, 42, 43, 48 and 103 of the UN

Charter expressed in a binding resolution of the Security Council under Chapter

VII. The latter will override many duties of traditional neutrality law. When the

Security Council has identified one or more parties to a conflict as responsible for

unlawful resort to force, third States are obligated to discriminate between

belligerents. They are forbidden from assisting the aggressor, but may lend assistance to the victim State. When the Security Council has taken preventive and

enforcement action under Chapter VII of the Charter, third States may not rely on

neutrality law to justify conduct incompatible with their duties as UN Members

under, e.g., Articles 25 and 103 of the Charter.330

C. Environmental Implications. To examine the relevance of the contemporary principle or law of neutrality for the protection of the environment during

armed conflict, several hypotheses need to be discussed. In the examples below,

environmental damage is caused to a “third State,” modelled on the Iranian position during the 1990–1991 Gulf conflict: a UN Member State desirous of

remaining outside the conflict.

In case A, the damage results from lawful military operations by a victim State

exercising its right to self-defence; in case B, from unlawful military operations

by the initial victim State; in case C, damage is caused by an identified aggressor

State; in case D, by participants in an armed conflict in which the UN fails to

identify the aggressor State.

The first hypothesis may have occurred in the 1990–1991 Gulf war. As UN

Members, both Iran and Jordan, were obligated to accept and execute decisions

taken by the Security Council under Chapter VII, which included the

authorisation given to Coalition States to use armed force against Iraq. Therefore,

neither Iran nor Jordan could claim complete freedom from the effects of

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Coalition military actions to the same extent as they would be entitled under the

traditional law of neutrality. An Iranian complaint about Coalition intrusions

and environmental damage caused by Coalition States could not succeed on the

basis of the traditional law of neutrality.

Although firm legal ground is lacking, it could be argued that as UN Members,

both countries could be expected to tolerate environmental damage caused on

their territory by lawful actions of Coalition members. It was argued above that

under present international law, environmental damage may occur as a by-product of lawful military activities, i.e., use of force that remains within the ambit of

both the modern jus ad bellum and jus in bello.

331

Even if “third” States as Iran and Jordan could not claim compensation on the

basis of traditional neutrality law, there might be other paths that could be pursued. Following the imposition of economic sanctions actions against Iraq and

occupied Kuwait,332 the Security Council established a sanctions committee.

This was entrusted inter alia with examining, pursuant to Article 50 of the UN

Charter, requests from States that claimed to experience severe economic difficulties as a result of the embargo. In a parallel move, the U.S. administration

established the “Brady” Committee, which provided compensation to the most

affected States.333 Although there is under present international law no firm legal

basis, one could envisage a similar show of solidarity vis-à-vis States affected by

military operations authorised by the Security Council.

A second avenue is the compensation scheme which the UN currently operates

for peace-keeping operations.334 Arguably, damage caused to neighbouring countries by lawful enforcement operations sanctioned by the Security Council should

merit equal attention.

A third possibility is that UN Members who engage in UN-sanctioned operations, and thereby cause environmental damage to third States, agree to

compensate the latter but recover ultimately from the aggressor State(s).335 This

possibility will be examined further below.

Case B deals with environmental damage caused as a result of a violation of the

laws of armed conflict—jus ad bellum or jus in bello—by the victim State and/or

States that come to its rescue. Under the modem collective security system of the

UN, the solution of case B is bound to be difficult, since it may involve controversy over the ultimate responsibility for enforcement actions that, although

authorised by the Security Council, are legally not conducted by the UN itself.

Nevertheless, a case can be made that the legality of the act causing damage

should be immaterial for questions of compensation related to any UN authorised

“peace” operation. Arguably, the UN compensation scheme for peace-keeping operations should be extended to include environmental damage caused to “third”

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States during all UN-sanctioned peace-enforcement operations. The question of

whether the UN can recover any moneys paid out from the peace-enforcing

State(s) that transgressed the law, should not be of concern to the “third” State

that suffered the environmental damage.

However, there is an alternative to the solution of both hypotheses A and B.

Arguably, all damage caused to the territory of “third” States results from a

breach of jus ad bellum by the aggressor State and should hence be compensated

by the latter. This alternative will be dealt with together with the next

hypothesis.

The third hypothesis covers damage caused to a “third” State by an aggressor

State. The former is in principle entitled to compensation for all damage caused as

a consequence of the jus ad bellum breach by the aggressor State. In this respect the

legal relationship between the third State and the unlawful aggressor State resembles the principles on which compensation was payable under the traditional law

of neutrality. This principle has been expressed in Article 16 of Resolution 678

(199l), discussed above.336

However, it was seen above that the UNCC has adopted a wide interpretation of

this provision. As a consequence, Iraq is liable not only for damage caused by

Iraqi military operations that violated jus in bello, but also for those in compliance

with jus in bello, and in addition for damage caused as a consequence of Coalition

military operations. It was seen too that according to a more extreme view, Iraq

could be held liable for damage caused by Coalition actions in violation of the

laws of armed conflict.337 However, the latter view is open to challenge on two

grounds: arguably, an illegal act by the Coalition would break the chain of causation between the unlawful Iraqi invasion and the subsequent damage; moreover,

it would conflict with the principle of ex injuria jus non oritur.

In fact, the UNCC has not excluded Iranian claims despite the government’s assertion of neutrality in the 1990–1991 Gulf conflict. From the point of view of

Iranian citizens, this solution has to be applauded. There is no reason why any environmental damage caused to Iran as a direct result of the conflict, should not be

considered by the UNCC as well.

Hypothesis D concerns cases that occur more frequently, but because of the

uncertainty surrounding the legitimacy of positions of neutrality under the UN

Charter, the solution is very unclear. Theoretically one could argue with, e.g.,

Switzerland,338 that all States of the international community are under a duty to

comply with the implications of the prohibition of the use of force under the UN

Charter. Each State would hence be under an independent duty to identify the aggressor State, to refuse co-operation with the latter, and to discriminate in favour

of the victim State.

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Such duties would be incumbent on all States of the world community because

of the jus cogens character of jus ad bellum, the legal force of which does not depend

on the effectiveness of the Security Council. However, the State practice discussed

above shows that in the absence of firm directions from the Security Council,

third States feel free to adopt a panoply of attitudes to belligerents. Space does not

permit to go into detail about possible consequences which these varied attitudes

may entail for environmental protection.

2.4.3. Conclusions on Neutrality Law

The present state of the law of neutrality is unsettled. Whilst there is no doubt

about its continued importance, the determination of its exact contents presents

many legal and conceptual difficulties. The above analysis has shown that it does

not offer a universally reliable nor comprehensive legal foundation for the protection of the environment in armed conflict. Support for this contention may be

found in the 1996 Advisory Opinion on Nuclear Weapons in which the ICJ admitted

the existence of the “principle of neutrality” and called it of fundamental character. However, the Court strongly suggested that its content was controversial and

that it was subject to the relevant provisions of the UN Charter.339

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Chapter III

The Operation of General International Environmental Law during International Armed Conflict

THE MAIN PURPOSE OF THIS CHAPTER IS to examine whether International Environmental Law (IEL) continues to operate during international armed

conflict, and if so, to what extent. The author will analyse the main legal principles involved and propose a methodology to determine the legal effect of

multilateral environmental agreements during international armed conflict.

This chapter is divided into five sections. The first section discusses instances

of recent State practice, ending with State submissions before the ICJ in connection with the advisory requests on the Legality of Nuclear Weapons. Section two

deals with the relationship between general (peacetime) international law and the

laws of armed conflict. Section three analyzes the relationship between Principle

21 of the Stockholm Declaration and armed conflict. Section four deals with the

relationship between multilateral environmental agreements and armed conflict.

Section five contains the conclusions to this chapter and introduces the case studies to be conducted in the second part of this study.

3.1. State Practice Regarding IEL in Armed Conflict

Since IEL is a relatively young discipline, questions related to its applicability

during international armed conflict have arisen only rarely. This section will examine the principal instances of State practice in this regard.

3.1.1. The Tanker War and the Law of the Sea.

In mid-September 1980, Iraqi forces seized a disputed area from Iran, escalating a centuries-old dispute over the Shatt-al-Arab.1 During the ensuing eight
years of war, third State shipping and, in particular, oil tankers, fell victim to attacks from both belligerents in a campaign allegedly started in earnest by Iraq in

1984.2 In what came to be called the Tanker War, merchant ships suspected of

sustaining the enemy’s war effort were attacked in and outside war zones proclaimed by both parties, very often without prior warning.3 Iran and Iraq also laid

naval mines that were set adrift or came loose from their moorings, damaging

third State ships.4 It is estimated that Iran and Iraq attacked more than 400 merchant ships, 31 of which sank and 50 of which were declared total losses.

The Security Council passed four resolutions condemning the attacks on third

State ships.5 It is reasonable to assume that much environmental damage was

caused as a result of these attacks, but this aspect did not receive any media attention, and there are no scientific or legal assessments available.6

The Tanker War took place shortly after the conclusion of the 1982 UNCLOS

convention. As seen earlier, UNCLOS is one of the most comprehensive environmental treaties concluded thus far.7 It lays down the obligation of all States “to

protect and preserve the marine environment” (Article 192), confirms Principle

21 of the Stockholm Declaration (Article 194 (2)), and enacts a framework envisaging all types of pollution of the marine environment, whatever the cause:

vessel-source, land-based sources, dumping, exploitation of the seabed, and air

pollution (Part XII).

To what extent the environmental obligations of belligerents, as recorded and

developed in 1982 UNCLOS, continued to operate during the Iran-Iraq conflict is a

complex question. The first hurdle is that since the convention was not yet in force,

the customary status of many of its provisions was hotly debated in the beginning of

the 1980s. Iran for instance, formally stated that it regarded the rights concerning

transit passage and the Exclusive Economic Zone (EEZ) as “contractual” in nature

and therefore not available to non-parties such as the United States and the UK.8

The second problem is that during the UNCLOS negotiations, State delegates

had honoured a long tradition of reticence about discussing military uses of the

seas.9 As a result, the term “military activities” appears only once in the Convention, in the provision listing the optional exceptions from the compulsory third

party dispute settlement system.10 But this does not mean that the Convention

does not regulate military activities at all. On the contrary, some authors contend

that what motivated major military powers throughout the negotiations was precisely their concern to preserve the freedom to conduct military activities.11 To

what extent this goal was achieved remains a matter of controversy and requires

detailed assessment, article by article.

The uncertainty surrounding the regulation of military activities under the

convention applies, a fortiori, to questions of armed conflict. It is noteworthy that

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the ILC had stressed in regard to its first draft on the law of the sea—which ultimately led to the 1958 Law of the Sea Conventions—that it was only concerned

with “the law of peace.”12 Many authors believe that, like its predecessor treaties,

1982 UNCLOS was drafted mainly for peacetime.13 But this presumption does not

resolve the difficulties, for the Convention contains no provisions on its continuation, modification or abrogation in time of war or armed conflict.

The tactical silence of the final treaty text on military uses of the seas in peace

and war has made it a document that can be invoked to support opposing theories.

One example is the clause that seems to form a leitmotiv of the new law of the sea:

in a few well-known provisions, the Convention rules that the high seas, the EEZ

and the Area—that is, the seabed and ocean floor and subsoil thereof beyond the

limits of national jurisdiction—are reserved for peaceful purposes or uses.14

These clauses gave birth to two diametrically opposed positions: one asserting an

outright prohibition of military activities (at least in the Area) and the other

claiming that the “peaceful purposes/uses” clause merely forbids actions in violation of Article 2(4) of the UN Charter. The latter position, which undoubtedly

coincides more with the opinio juris and State practice, has since gained the upper

hand.15

Third States were divided on the many legal issues that arose during the

1980–88 Iran-Iraq conflict, including on the relationships between belligerents

and States not directly involved in the conflict. Significantly though, the exercise

of traditional belligerent rights was tolerated to a certain extent. Thus, Iran resorted to measures of economic warfare and several States accepted that she could

exercise the right to visit and search third State merchant shipping.16

Although paralysed by cold-war rivalry, the Security Council managed to pass

several resolutions on the conflict. In some of these, the Council stressed the importance of freedom of navigation in the Gulf and the protection of oil supplies

from the region. In the light of what has been said above on the uncertain relationship between the law of the sea and military uses, it is noteworthy that the

Council often invoked the law of the sea and even appeared to suggest that freedom of navigation needed to prevail over belligerent activities.17

3.1.2. The 1983 Nowruz Oil Spill, the 1978 Kuwait Regional Convention and

1982 UNCLOS

In 1983, a major incident would draw the world’s attention to another aspect of

the conflict: its devastating impact on the environment. Late February or early

March 1983, Iraqi bombers hit an already leaking Iranian offshore oil installation

in the Nowruz field, about 60 km from the Kharg Island oil port, destroying an

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unspecified number of Iranian oil tankers and oil installations as well as six other

wells nearby.18 The fire raged for weeks, and when the well blew out, 7,000 to

10,000 barrels a day leaked into the Gulf. The spill has been ranked among the

three largest recorded in human history.19 It threatened Bahraini, Qatari and

Saudi desalination plants, and affected other areas beyond belligerent jurisdiction. For instance, fish imports into the UAE were stopped because of oil

contamination of fishing grounds.

The Nowruz oil spill became a turning point in the history of legal thinking

about “war” and the environment. Firstly, it is one of the few instances of documented State practice with respect to the effect of an ongoing inter-State armed

conflict on the continued application of an international environmental treaty.

The treaty at issue was the 1978 Kuwait Regional Convention for Co-operation on

the Protection of the Marine Environment from Pollution (hereinafter Kuwait

Regional Convention), to which both belligerents and many of the affected countries in the region were party.20 It contains a provision, Article IX (a) on

“pollution emergencies,” which obligates all Parties to take individually and/or

jointly:

. . . all necessary measures . . . to deal with pollution emergencies in the Sea Area,

whatever the cause of such emergencies, and to reduce or eliminate damage resulting

therefrom. (Italics added.)

Whether this and other provisions of the Convention remained relevant during

the conflict will be discussed later in more detail. For now, it suffices to mention the

following points. Several attempts were made both within and outside the Convention’s institutions to work out a temporary and partial cease-fire between

belligerents in order to implement the Kuwait Regional Convention, stop the spillage, and remedy the ensuing environmental damage.21 These negotiations failed.

Iraq continued bombing the source of the spill and made its position clear in letters

addressed to the UN Secretary General. In these, Iraq rejected not only calls for a

partial cease-fire so as to allow repairs to the wells,22 but asserted also that:

. . . the provisions of the Kuwait Regional Convention on Cooperation for the Protection of

the Marine Environment from Pollution and the protocol annexed thereto have no effect in

cases of armed conflict. 23

There is no record of any official State reactions to this position. The Security

Council chose not to condemn Iraq explicitly, but instead issued a disappointingly vague call to:

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. . . both parties to refrain from any action that may endanger peace and security as

well as marine life in the region of the Gulf.24

Following this incident, the EC commission asked five scholars to study the

problem of the protection of the environment in times of armed conflict. Their

1985 report is—as far as is known—the first academic paper on the subject.25

The experts concluded that Principle 21, as confirmed by Article 192 UNCLOS,

applies in armed conflict between belligerents and third States, and by analogy to

international areas. They maintained that armed conflict gives belligerents no

right to deviate from treaty rules protecting the territorial integrity and the environment of third States. They pointed out that violation of environmental

obligations may bring into play the rules of international law on the responsibility of States regardless of where the damage arose.

As for treaty relations between belligerents, the EC experts stated, inter alia,

that the mere occurrence of armed conflict does not put an end ipso facto to their

treaty obligations in regard to the protection of the environment; that parties to

such conventions have the obligation to ensure that the rules on the protection of

the environment are respected to the greatest extent possible and that in cases of

environmental emergency, all parties, including belligerents, need to co-operate

in its prevention and accept offers of assistance. Finally, the experts believed that

the ICRC or any other impartial humanitarian organisation can offer its services in

this regard.26

Although intended to assist in the consideration of possible initiatives at the

international level,27 the report does not appear to have led to any such actions, either by the EC or by any of its Member States.

Despite the obvious merit of many of its conclusions, the report has several

weaknesses. First, it is important to note that it glosses over the fundamental

changes which the UN Charter brought about in jus ad bellum and neutrality

law.28 Because the study was done in 1984–1985, the experts could perhaps be

forgiven for thinking that the Security Council would never intervene in the

Iran-Iraq conflict under Chapter VII of the Charter.29 However, it is submitted that the failings of the UN collective security system do not justify

assessing the situation exclusively—as the report does—on the basis of neutrality law laid down before the first World War, nor using Switzerland as the

only example of a “neutral” third State.30 Even in cases of Security Council

gridlock, the Charter’s principles remain valid.31 Furthermore, in the

post-Charter era, it would be an oversimplification to equate third States’ attitudes to inter-State armed conflict with the type of neutrality practised by

Switzerland in the first half of this century.32

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Secondly, with respect to the issues raised by the Nowruz oil spill, the EC report asserts that since the Kuwait Regional Convention was negotiated for a

region where tensions were known to exist, the phrase “whatever the cause of such

emergencies” (Article IX) must be taken to include instances of environmental

damage caused during armed conflict.33 This assertion as well as the rest of the

conclusions of this seminal report will be evaluated later in this study.34

Thirdly, it was seen earlier that following Article 237 of UNCLOS, regional conventions, such as the 1978 Kuwait Convention, pre-empt UNCLOS provided that

their provisions are consistent with its general rules.35 However, since it predates

the latter, the Kuwait Convention does not contain a provision comparable to Article 192 (nor to Article 194) of UNCLOS enunciating comprehensive and

unqualified duties towards the marine environment.

Whilst acknowledging that the general obligation for States to protect the marine environment may only be emerging customary law, the EC experts asserted

nonetheless that this principle applies to the environment of neutral States.36

Many naval lawyers doubt, however, whether the environmental provisions of

UNCLOS can be transported in unqualified form to situations of armed conflict.

One of the treaty’s negotiators, Professor Oxman, points out that Article 192 was

the principled foundation for a much more detailed body of rules that followed it,

explicating its meaning and effect. He believes that applying it to armed conflict

in unqualified form amounts to taking the provisions out of context, ignoring the

lex specialis character of the laws of armed conflict as well as the fact that UNCLOS

was not intended to regulate the latter.37 His views were confirmed by the naval

specialists who drafted the 1994 San Remo Manual. As mentioned earlier, whilst

they agreed that States are under a general duty to protect the marine environment,

they could not agree on creating corollary legal obligations during armed conflict.38

3.1.3. Operation “Praying Mantis,” Customary Law and the Kuwait Regional

Convention

An examination of the legal effects of armed conflict on environmental treaties

can only provide a partial answer to the problem of environmental protection during armed conflict. As demonstrated in the previous Chapter, a great part of the

analysis will have to be devoted to the lawfulness of the use of force, both from the

perspective of jus in bello and jus ad bellum. Moreover, international armed conflict

often creates situations that are beyond the immediate reach of the law of treaties,

for the simple reason that not all States involved in the conflict may be bound by

the same treaties. This can be illustrated with Operation Praying Mantis, the U.S.

code name for a military operation carried out against Iran during the 1980–1988

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Iran-Iraq War, which forms part of the Oil Platforms case currently pending before

the ICJ.

39

It is common knowledge that the United States, whilst officially proclaiming

its neutrality in that Gulf conflict, was nevertheless heavily involved in armed

confrontation against Iran. In an effort to deter Iran from attacking third State

merchant shipping, the United States decided in April 1988 to attack an Iranian

frigate and three offshore gas/oil separation platforms belonging to Iran. It later

emerged that the U.S. servicemen were instructed to avoid civilian casualties, collateral damage, and “adverse environmental damage” to every possible degree.

Seen from a U.S. perspective, Operation Praying Mantis was carried out according to plan, although Iran claimed that there were several civilian casualties.40

It is not clear whether any significant environmental damage was caused.41 But

since the operation involved destruction of gas/oil separation platforms, there was

at least a risk of serious marine pollution. If the U.S. raid had caused a serious oil

spill, the ascription of legal responsibility would defy easy analysis. Whilst Iran

and Iraq were undisputedly the main belligerents of the conflict, the U.S. claim to

neutrality status is more tenuous, certainly as far as Operation Praying Mantis is

concerned. Both Iran and Iraq are Parties to the 1978 Kuwait Regional Convention, which deals with pollution emergencies but which does not contain an

explicit clause to deal with emergencies created by or during armed conflict. In

addition, in the above hypothesis, the pollution emergency in question would

have been created by a State which not only denied involvement in the conflict

between Iran and Iraq but which is not a party to the 1978 treaty.42

3.1.4. The 1991 Gulf War Oil Spill and the 1990 OPRC Convention

It was seen earlier that the 1991 Gulf war oil spill was largely—though not exclusively—caused by deliberate Iraqi actions: the opening valves at Iraqi and

Kuwaiti oil terminals, and the dumping of oil from five Iraqi tankers.43 These actions were not only highly questionable from a jus in bello point of view,44 Iraq was

also identified early on as having unlawfully resorted to the use of armed force in

the first place.45

Whilst the exact size of the oil slick is debated, it is generally regarded as the

largest ever recorded in human history. It destroyed marine flora and fauna, including migratory species of birds, and interrupted food chains for all forms of life

in the Gulf. It ruined fishing grounds for many countries in the region, and made

beaches unsuitable for the tourist industry. The oil slick caused serious pollution

of the Kuwaiti and Saudi Arabian coasts, and seriously threatened the latter’s desalinisation plants and offshore oil operations.46

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In sharp contrast to the hands-off approach during the 1981–1988 Iran-Iraq

conflict, the 1991 Gulf war oil spill elicited a massive world-wide response. Already during the hostilities, local teams in Saudi Arabia managed to save

strategic installations from impending disaster.47 After the cessation of hostilities, an enormous environmental assessment and remediation effort got

underway, involving an impressive number of local, regional, bilateral and multilateral organisations.48

More important for this study is the evidence that States and international organisations resorted to international institutional mechanisms agreed for

“peacetime.”49 Because of its territorial competence in the region, the instruments and institutions agreed under the 1978 Kuwait Regional Convention were

an obvious candidate for the provision of emergency relief. Unfortunately, its Marine Emergency Mutual Aid Centre in Bahrain was not able to participate, having

been incapacitated by a prolonged lack of funding. Nonetheless, another regional

mechanism, the Gulf Area Oil Companies Mutual Aid Organisation contributed

successfully with equipment and services.50

The singular most impressive case was the IMO-led early implementation of the

1990 International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC Convention) and associated resolutions. The OPRC Convention

had been signed barely two months earlier and was not yet in force. Although the

Convention was apparently concluded with accidental oil-spills in mind,51 the

IMO considered the Gulf war oil spill to be of the “severity” envisaged in Article 7,

justifying requests for assistance from government agencies in the countries

threatened by the spill.52 The early implementation of this convention, five years

before its official entry into force, provides, together with the Nowruz Oil Spill,

one of the rare instances of State practice on the legal relationship between armed

conflict and environmental treaty law. An evaluation of this case will follow later

in this work.53

3.1.5. State Submissions in the Advisory Opinions on Nuclear Weapons

In their submissions to the ICJ on the Legality of Nuclear Weapons, States were

fundamentally divided on the question of the continued relevance of IEL during

armed conflict.

Of the States opposing the legality of nuclear weapons, the Solomon Islands

presented the most elaborate case in favour of the persistence of environmental

obligations during armed conflict. To support their conclusions on the illegality

of nuclear weapons, they argued that the use of these weapons was forbidden by

current IEL.

54 Their detailed contentions can be summarised as follows:

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First, regarding the operation of international law in general during armed

conflict, they submitted that: (1) State obligations arising from customary principles and treaty law apply in peace and in war, unless expressly mentioned

otherwise; (2) Hence, multilateral treaties that contain no provisions expressly

excluding their application in times of war, apply in times of war; (3) Multilateral

treaties are not ipso facto terminated by the outbreak of armed conflict; (4) Belligerent parties can only suspend or terminate treaties in their relation with other

belligerents; they are not allowed to do so in relation to neutral States;

Secondly, applied to IEL, it followed according to the Solomon Islands that: (1)

Principle 21 of the Stockholm Declaration, as reaffirmed by the Rio Declaration,

continues to apply during armed conflict; (2) Multilateral environmental agreements continue to apply in times of armed conflict, unless expressly provided

otherwise; (3) Several important environmental instruments establishing detailed régimes for various environmental sectors—i.e., freshwater resources, the

marine environment, biodiversity, climate system and the ozone layer—continue

to apply during armed conflict, since they phrase State duties in unconditional

and general terms and contain no provision to the contrary; (4) The latter agreements have become widely supported and may reflect rules of customary

international law; they establish obligations of such essential importance to the

safeguarding and preservation of the human environment that their violation is

an international crime; (5) Environmental agreements may only be suspended

between belligerents during armed conflict; (6) Environmental agreements may

not be suspended by belligerents vis-à-vis third States.55

Third, the Solomon Islands contended that since any use of nuclear weapons

would violate environmental obligations arising from international custom and

treaty law, their use was forbidden by current IEL. This amounts to a claim that

IEL is not only concerned with States’ peacetime activities, but that it also regulates belligerent activities during armed conflict.

Neither the Court itself, nor States opposing the tenor of the advisory requests

provided a full answer to all of the above principled arguments. As will be seen below in the following two sections,56 the Court accepted the opponents’

submission that the legal questions raised by the request from the UN General Assembly deserved a narrow answer, primarily limited to the worst-case scenario of

the use of nuclear weapons.

3.2. The Relationship between Peacetime Law and the Law of

Armed Conflict in General

Since IEL is primarily treaty-based law, a large portion of this study will be devoted to examining whether—and if so, how—multilateral environmental

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agreements apply during armed conflict. However, this question cannot be answered without exploring first the place of IEL and the laws of armed conflict in

the international legal order.

It was once believed that the distinction between war and peace was so sharp

that as soon as war had begun, the rules valid in peacetime were replaced by those

of the laws of wars.57 Even if not all wars were formally declared, there was little

discussion that the rules prevailing during war were fundamentally different

from those in peacetime. The relationship between the law of war and the law of

peace was one of leges specialis, superseding the rest of international law.58 To

complete this ideal picture, Grotius wrote “inter bellum et pacem nihil est medium”: there is no intermediate state between peace and war.59

However, since there were often hostilities without formal recognition of war,

the delimitation between war and peace in State practice was not as clear as the

theory implied.60 The traditional legal dichotomy between war and peace was

challenged by authors such as Schwarzenberger, who introduced the notion of

status mixtus in international law.61 During a status mixtus, third States would be

free to decide for themselves whether they wished to regulate their relations with

belligerents in accordance with the law of peace or the law of war. Although much

written about, the theory was controversial and has never been accepted in international law. Moreover, it did not solve the question of the delimitation between

war and peace, but added a third State to be demarcated.62

It was seen in the previous chapter that the importance of the state of war has

declined.63 Particularly since World War II, there has been a shift away from the

traditional concept of war as a phenomenon characterised by the formal commencement of hostilities. Instead, in many instances, use of armed force is limited

in scale, or develops only gradually into a full-blown international conflict. Such

hostilities may resemble traditional wars, but the contending parties may resist

this label because of its incompatibility with the UN Charter.64

The disappearance of the dichotomy between war and peace raises the question

of whether there is now a new dichotomy between armed conflict and “no armed

conflict” and what its implications are for general international law.

Whilst military lawyers have continued to maintain that the relationship between general international law, including environmental law and the laws of

armed conflict, was one of lex generalis/lex specialis,

65 this assumption has in recent

decades come under scrutiny, both from human rights and environmental legal

perspectives.

Since World War II, the impact of humanitarian law and the development of

human rights law has been such that there is now a core body of fundamental

norms for the protection of the human person, which demands respect from

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States in peace and in war or in situations of armed conflict and of no armed conflict. This has been recognised by the ICJ in the Corfu Channel and in the

Nicaragua cases, in which the Court stressed the exacting nature of certain elementary considerations of humanity, applicable in peace and war.66

Similarly, as seen in the first section of this study, since the 1980s it has been

argued more often that States’ rights and duties with respect to the environment

continue to operate during armed conflict. In this view, armed conflict offers no

excuse for States to deviate from important duties towards the environment arising from general international law.

These assertions have come to a head in States’ written and oral submissions to

the ICJ regarding the requests for an advisory opinion on the legality of nuclear weapons. Many States opposing the legality of nuclear weapons argued that there exists a

principle of “environmental security” which outlaws the threat or use of these

weapons of mass destruction. They asserted that general international law prohibits

a State from carrying out or authorising activities which damage human health and

the environment and that international obligations for the protection of human

health, the environment and human rights apply during armed conflict.67

None of the proponents of the legality of nuclear weapons invoked the lex

generalis/lex specialis argument explicitly, although this was implied by their assertions that the principal purpose of environmental treaties and norms was to

protect the environment in time of peace. Thus, the United States argued that

none of the environmental instruments referred to was negotiated with the intention that it would be applicable to nuclear weapons.68 In addition, she warned that

if the ICJ were to decide that the use of nuclear weapons was prohibited or restricted by international environmental agreements or principles, very serious

damage could be done to international co-operation and the development of legal

norms in this area.69 The UK submitted that the real issue before the Court was

whether any rules of human rights or environmental protection could be construed as prohibiting the use or threat of use of nuclear weapons when carried out

by way of legitimate self-defence.70

In its advisory opinion on the General Assembly request, the ICJ took note of

the arguments advanced by the two camps.71 Accepting the UK submission it

judged that:

. . . the issue is not whether the treaties relating to the protection of the environment

are or not applicable during an armed conflict, but rather whether the obligations

stemming from these treaties were intended to be obligations of total restraint during

military conflict.72

The Court further held:

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. . . that the most directly relevant applicable law governing the question of which it

was seized, is that relating to the use of force enshrined in the United Nations

Charter and the law applicable in armed conflict which regulates the conduct of

hostilities, together with any specific treaties on nuclear weapons that the Court

might determine to be relevant.73

The answer given by the Court transcends the issue of the worst-case scenario

of the use of nuclear weapons, for the opinion indicates that the law of armed conflict operates as lex specialis with respect to questions of interpretation related to

human rights instruments and environmental obligations arising from general

international law. This follows directly from the Court’s analysis of the human

right to life in armed conflict, which preceded its examination of environmental

obligations. The Court observed that, in principle, the right to not be arbitrarily

deprived of one’s life applies also in hostilities, but that the test of what is an arbitrary deprivation of life, needs to be determined by:

. . . the applicable lex specialis, namely, the law applicable in armed conflict which is

designed to regulate the conduct of hostilities.74

The Court then turned to environmental law. It accepted that States are under

a general obligation to ensure that activities within their jurisdiction and control

respect the environment of other States or of areas beyond national control.75

However, it rejected the view that this would entail an obligation of total restraint

in armed conflict or a ban on the use of force in self-defence.76

The above does not mean that the Court regards environmental law as irrelevant in armed conflict. On the contrary, as was seen earlier,77 it has firmly laid to

rest any suggestion that the duty to protect the environment would be of concern

to States only in times of peace:

States must take environmental considerations into account when assessing

what is necessary and proportionate in the pursuit of legitimate military

objectives. Respect for the environment is one of the elements that go to

assessing whether an action is in conformity with the principles of necessity

and proportionality.78

The Court also recalled its recent Order in the Request for an Examination of the

Situation case, in which it concluded that it was “without prejudice to the obligations of States to respect and protect the natural environment.”79 In the advisory

opinion the Court stressed that:

Although that statement was made in the context use of nuclear testing, it

naturally also applies to the actual use of nuclear weapons in armed conflict.80

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However, the opinion remains vague about how exactly environmental concerns might inform the law of armed conflict. As seen in the previous chapter, the

advisory opinion has been understood as confirming that the requirements of necessity and proportionality apply to use of armed force both from the perspective

of jus ad bellum and jus in bello.

81

The paragraphs in which the ICJ discusses the need to take environmental aspects into consideration during belligerent activities touch on both disciplines.82

Whether the explicit reference to the principles of necessity and proportionality in

this context includes both jus ad bellum and jus in bello is less clear.83 As for jus in

bello, the opinion suggests that the new environmental jus in bello provisions of Additional Protocol I do not constitute customary law and that limitations on the

causing of environmental damage in armed conflict derive primarily from the abstract principles of the law of armed conflict discussed in the previous chapter.84

In conclusion, the inference to be drawn from this advisory opinion is that

whilst certain State obligations towards the environment continue to apply during armed conflict, they cannot be used to override the law of armed conflict, and

certainly not rights derived from jus ad bellum.

Accordingly, even “massive pollution of the atmosphere and the seas,” which

the ILC has termed an international crime,85 could theoretically be justified in

armed conflict provided that, inter alia, the customary requirements of necessity

and proportionally are complied with.

The implications for the worst-case scenario of use of nuclear weapons are debated. As seen before, the majority opinion has been understood by many to

imply, or at least, leave open the possibility that the use of nuclear weapons would

inevitably violate jus in bello, but that their use would nevertheless be justified in

extreme cases of self-defence.86 In his dissenting opinion, Judge Schwebel used

the 1990–1991 Gulf conflict to illustrate circumstances in which the threat of the

use of nuclear weapons might have been justified. He acknowledged though, that

the consequences of their use would have been “catastrophic,” not only for the coalition forces and populations, but also for the principles of collective security and

for the United Nations.87

3.3. The Relationship between Principle 21 and International

Armed Conflict

3.3.1. Armed Conflict, UNCHE and UNCED

The Court’s view on the relationship between general international law and

the laws of armed conflict is supported by an analysis of the relationship between

Principle 21 and armed conflict.

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The starting point of this analysis is that Principle 21 has a general tenor, and

that it can be understood as embracing all types of State “activities,” including

military activities. As seen above, it was recently argued before the ICJ that Principle 21 applies in peace and in war.88 More specifically, it was asserted that:

. . . use of the word control indicates that the obligation extends to activities carried

out by States, through, for example, submarines, vessels or aircraft which might

launch a nuclear weapon from an area beyond its national jurisdiction.89

Accordingly, Principle 21 was said to apply to the use of nuclear weapons in

war or other armed conflict.90

It is true that normally the actions of a State’s armed forces should be regarded

as within its jurisdiction or control; hence, State military actions are subject to

the requirement not to cause severe damage to other States or areas beyond national jurisdiction. But does this include armed conflict?

In the previous chapter it was explained in detail how, as a result of the Vietnam conflict, environmental concerns increasingly informed the development of

environmental jus in bello and disarmament law from the 1970s onwards.91 Principle 21 was formulated at the 1972 Stockholm Conference (UNCHE). This widely

attended international environmental conference was held against the background of the Vietnam conflict, which brought allegations that the United States

had engaged in a policy of deliberately targeting the environment, sometimes

termed “ecocide.” It may hence seem peculiar that the impact of war on the environment was kept off the agenda. The reason is that the issue was considered

politically sensitive: it was feared by the organisers that broaching the problem

would be interpreted as direct criticism of the ongoing U.S. military operations.

This did not prevent the then Swedish Prime Minister Palme from sharply denouncing the omission in his opening statement at the Conference.92

Nevertheless, the environmental aspects of Vietnam were not totally ignored.

Not only were they discussed at a rival parallel conference held simultaneously in

Stockholm,93 during the official UN conference, Tanzania attempted to break the

silence by proposing the condemnation of :

. . . the use of chemical and biological agents in wars of aggression the use of which

degrade man and his environment.94

This initiative failed, and the only principle of the Stockholm Declaration to

deal with armed conflict—albeit implicitly—is Principle 26. Far from

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condemning environmental disruption for military purposes, it places most of the

issues raised by Vietnam in the politically less sensitive context of disarmament

negotiations and the use of weapons of mass destruction:

Man and his environment must be spared the effects of nuclear weapons and all

other means of mass destruction. States must strive to reach prompt agreement, in

the relevant international organs, on the elimination and complete destruction of

such weapons.95

Twenty years later at UNCED, held in Rio in June 1992, history appeared to repeat itself. It was seen in the previous chapter that in the months following the

1990–91 Gulf conflict, the adequacy of existing law with respect to protection of

the environment during armed conflict became the subject of world-wide debate.96 Most of these early debates centred on the adequacy of the environmental

jus in bello, although questions were raised regarding the possible contribution of

general IEL on the subject. In a reaction to the environmental legacy of the

1990–1991 Gulf conflict, the EC had introduced the condemnation of “ecological

crimes” for inclusion in UNCED’s agenda. Since the conference was tasked with reviewing and updating the Stockholm Declaration, it was offered an excellent

opportunity to state that Principle 21 would be applicable during armed conflict

as well. But following debates in the UN General Assembly and a preparatory

committee, the main UNCED Committee side-stepped the issue. Although a paragraph was inserted into Agenda 21, it uses only exhortatory language, which adds

little of substance:

Measures in accordance with international law should be considered to address, in

times of armed conflict, large-scale destruction of the environment that cannot be

justified under international law. The General Assembly and its Sixth Committee are

the appropriate forums to deal with the subject. The specific competence and the role

of the International Committee of the Red Cross should be taken into account.97

More importantly, by mandating the General Assembly’s Sixth Committee

and particularly the ICRC to study the issue further, UNCED’s handling of the matter strongly suggests that the issue was a problem for the laws of armed conflict

and not for general IEL.

The only principle of the Rio Declaration to deal with armed conflict is Principle 24, which reads:

Warfare is inherently destructive of sustainable development. States should therefore

respect international law providing protection for the environment in times of armed

conflict and co-operate in its further development as necessary.

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The weakness of these recommendations is apparent from the fact that during

the 1997 UN special session (UNGASS), the subject of military activities or armed

conflict was, as far as can be judged from the available documentation, not discussed.98

To conclude, the travaux préparatoires of the Stockholm and Rio declarations

show that delegates to these widely attended environmental conferences—

UNCHE and UNCED—thought that the subject of protection of the environment

during armed conflict needed to be addressed in specialised forums dealing with

the lex specialis, that is, the laws of armed conflict and disarmament negotiations.

However, since historical antecedents are not necessarily decisive, the question of the relationship between Principle 21 and armed conflict merits further

attention. Offensive or defensive operations in the course of armed conflict may

be subject to Principle 21, if not because of the general tenor of the Principle, perhaps by analogy to peacetime activities. A proper evaluation of this hypothesis

requires an examination of the nature of armed conflict and of its impact on the

environment; What are the parallels, if any, with States’ peacetime activities?

3.3.2. Hostile Military Activities Compared to Peacetime Military Activities

It is difficult to escape the conclusion that State activities during armed conflict differ fundamentally from State activities in peacetime.

Whilst the prohibition of transfrontier pollution has since 1972 evolved to include activities within States’ control, the most common case to which Principle

21 applies in peacetime is that of activities within a State’s territory or jurisdiction

causing transboundary pollution to another State’s territory or jurisdiction. By

contrast, hostile military activity is either directed at or takes place in areas that

lie per definition beyond a State’s jurisdiction: either in international areas or

within opponents’ territory or jurisdiction.

Moreover, the nature of hostile activity seems hardly reconcilable with the first

premise of Principle 21, which obligates States to take all reasonable measures to

prevent, reduce, and control transboundary pollution.99 Rather than preventing

the occurrence of transfrontier damage, belligerent activities imply the deliberate

infliction of harm directed at other States. This is recognised by the law of armed

conflict, which acknowledges in the view of one commentator:

. . . that intentional destruction of life and property is a necessary aspect of the conduct

of hostilities, and that collateral damage and injury—even to noncombatants, civilian

property and the natural environment—are an inevitable (though regrettable)

consequence. 100

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These negative environmental consequences set use of armed force apart from

State activities in peacetime: armed conflict implies necessarily that the environment will be targeted and destroyed—often intentionally. In legal terms,

therefore, armed conflict is distinct from all other human activities, even from

those that are routinely regarded as “(ultra-) hazardous,” such as activities relating to the nuclear energy sector. According to the ILC, (ultra-) hazardous

(peacetime) activity is one with a low probability for catastrophic damage.101 By

contrast, State activities in the course of armed conflict appear to carry a high probability of all kinds of environmental damage: from the negligible to the catastrophic.

General environmental law has evolved from principles such as good neighbourliness and respect for other States’ sovereignty and territorial integrity;102

the hypothesis of damage deliberately inflicted on other States seems entirely

anathema to it. Therefore, at least between belligerents, hostile military activity is

a direct negation of Principle 21.103

There remains of course the question, already broached in the previous chapter,

whether the principle remains valid for relationships between belligerents and third

States, and how the principle might apply in armed conflict in international areas.

3.3.3. Neutrality and Principle 21

According to a view primarily held in environmental circles, Principle 21 remains valid in armed conflict for relationships between belligerents and neutrals

and for relationships between belligerents and international areas. This was also

explicitly argued in the recent requests for an advisory opinion on the legality of

nuclear weapons.104

In the literature, several grounds are offered for these contentions. The argument seems based on a presumed legal dichotomy between belligerents and

neutrals and on the lex generalis/lex specialisrule. Accordingly, whilst it is admitted

that armed conflict changes the law applicable between belligerents, it is argued

that belligerents and neutrals remain governed by the law of peace, including

Principle 21, which is then applied by analogy to international areas.105 In addition, it is argued that there is no principle under customary law according to

which neutral States would have to tolerate damage to their territories caused by

belligerent activity.106

Such abstract conclusions seem fraught with difficulties on various grounds.

First, any theory that relies in one way or another on a strict division between war

and peace on the one hand, and a further dichotomy between belligerent and neutral States on the other, is problematic. It was seen earlier that under the modern

jus ad bellum, it has become much harder to distinguish between neutral and

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belligerent or co-belligerent States. What is more, positions of complete neutrality are, strictly speaking, incompatible with the UN Charter’s principles.107

Therefore, a scheme based on a dichotomy between belligerent and neutral States

may at the very least prove of little use in cases where the neutrality of third States,

i.e., of those not directly involved in the hostilities, is controversial or contested.

Secondly, it was seen earlier that whilst there is no longer a strict division between the law of peace and the law of war, the ICJ has taken the view in its 1996

Advisory Opinion on Nuclear Weapons that the lex generalis/lex specialis rule continues to govern questions relating to conduct of belligerent activities.108

However, the Court was extremely reluctant to draw any firm conclusions on the

implications of the use of nuclear weapons in regard to third States.

The Court held that neutrality was a principle of fundamental character applicable in armed conflict, but added that its content was debated and that its application

was subject to the relevant provisions of the UN Charter.109 The latter remark supports the view that reliance on the principle of neutrality is at least debatable in

cases where the Security Council takes binding decisions obligating UN Members

to discriminate between aggressor and victim States. This conclusion is further underscored by the fact that the Court stressed that it could not lose sight:

. . . of the fundamental right of every State to survival, and thus its right to resort to

self-defence, in accordance with Article 51 of the Charter, when its survival is at

stake.110

As for the application of the principle of neutrality to the use of nuclear weapons, the ICJ noted that some States argued that their effects cannot be contained

within the territories of the contending States,111 whilst other States objected that

this was not necessarily the case.112 The Court held that it did not have sufficient

elements at its disposal to determine the validity of the latter view.113

This part of the judgement could be construed as indicating that—had the

Court found that there was sufficient evidence that the effects of nuclear weapons

can never be contained within the “territories of the contending States”—it

might have found their use contrary to the principle of neutrality.

However, such a conclusion is not necessarily warranted. First, by insisting on

the fundamental right of every State to survival, the Court has left open the controversial possibility that resort to such weapons might be justified regardless of

compatibility with the principles of jus in bello. Secondly, even if this interpretation of the judgement is not accepted, it is clear that the opinion does not indicate

what level of environmental protection non-contending States might derive from

the principle of neutrality in armed conflict. According to the Principal Deputy

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Legal Adviser of the U.S. State Department, the opinion leads to the proposition

that a lawful exercise of self-defence under Article 51—one which meets the requirements of necessity and proportionality—would not violate neutrality; hence

there would be no absolute prohibition on attacks that would cause collateral

damage in a neutral State.114

Thirdly, the advisory opinion does not address the issue of environmental

damage in relation to international areas. It was argued earlier that the traditional

law of neutrality was premised on respect for the territorial sovereignty of States,

and that it cannot be construed to confer any type of “immunity” from belligerent

interference to international areas.115 In addition, it should not be overlooked

that under general international law, the application of Principle 21 to international areas or to the environment per se is heavily qualified. Whilst the duty to

protect the environment per se might be an emerging principle of customary international law, State practice indicates that it is primarily other States’ rights and

interests in these environments that are protected.116

In conclusion, resort to a legal dichotomy between war and peace, the lex

generalis/lex specialis rule, the principle of neutrality or an analogy between peacetime and belligerent military activities does not offer a sufficiently firm, nor a

universal legal basis for the protection of environments beyond the jurisdiction of

the contending States during armed conflict.

3.4. The Relationship between Multilateral Environmental Agreements and International Armed Conflict

3.4.1. Introduction

It was seen earlier that IEL is primarily treaty-based law.117 Although treaty law

cannot be divorced entirely from customary international law, it forms to a great extent a self-contained source of international law and merits separate analysis.118

The purpose of this section is to examine whether multilateral environmental

agreements continue to apply during armed conflict and, if so, to what extent. The

resolution of this question must be sought in an analysis of the relationship between multilateral environmental agreements and armed conflict, and requires

answers to the following fundamental questions: Can these agreements be said to

apply at all to belligerent activities during international armed conflict? If so, do

contracting parties have the legal right to terminate or suspend the operation of

such agreements during the conflict?

One school of thought opposes the continued relevance of multilateral environmental agreements during armed conflict on the grounds that: (a) these

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agreements are not applicable to belligerent activities or (b) that even if they may

be said to apply, contracting parties have the legal right to terminate or suspend

the operation of these agreements during armed conflict.119

Advocates of the continued relevance of multilateral environmental agreements during armed conflict would argue that: (a) these agreements apply to all

State activities, even in armed conflict; and (b) that armed conflict is not a sufficient ground to terminate or suspend the operation of these agreements.120

Apart from these positions at opposite ends of the spectrum, there are a variety

of compromise positions possible. For instance, some adherents to the first school

of thought concede that these agreements may apply during armed conflict, but

that armed conflict is a sufficient ground in itself for belligerents to suspend or

terminate the agreements between themselves. Others assert that the question is

simply not relevant since environmental treaties rarely deal with the kind of damage caused during warfare.121 It is also argued that belligerents may suspend the

operation of such agreements if incompatible with armed conflict, but only between themselves, and that in any case, the suspension of such agreements will

not affect obligations which are binding on States regardless of treaty law.

It was seen earlier that there exists State practice on the legal effect of armed

conflict on multilateral environmental agreements, but that it raises more questions than it answers.122

As for legal doctrine, it was seen that the EC Expert report written during the

1980–1988 Iran-Iraq conflict was the first legal study devoted to the subject. Following the 1990–1991 Gulf conflict, the need to study the issue of the legal effect

of armed conflict on multilateral environmental treaties has been raised regularly.123 However, the scope of most of the studies conducted thus far is severely

restricted. Not only do they concentrate primarily on the environmental treaties

directly affected by these conflicts, almost invariably, reliance is placed on

pre-Charter law and legal doctrine.124 The suggestions made by an ICRC Committee of Experts to study all major environmental treaties with a view to ascertaining

whether they continue to apply in times of war have thus far not been followed.125

Unsurprisingly therefore, in their recent submissions before the ICJ, States

were sharply divided on these questions. Both proponents and opponents of the

legality of nuclear weapons admitted that the vast majority of environmental treaties are silent on the question of their effect during war and armed conflict,126 but

they drew opposing conclusions from this fact. The Solomon Islands argued that

this silence proves that they are designed to ensure environmental protection at

all times, in peace and war, unless expressly excluded.127 It was further argued on

their behalf that the outbreak of war or other armed conflict does not automatically suspend or terminate the operation of those treaties and that, in any event,

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such treaties continue to apply where they are in force between one or more parties to a conflict and third States.128

The United States and the UK replied that the nature and the scope of these

agreements, and the intention of the drafters, cannot be construed as an implied

prohibition on the threat or use of nuclear weapons. 129 In addition, the Court itself held that whether such treaties were applicable or not in armed conflict, was

not relevant to the legal question before it.130

In view of the above, it seems necessary to broaden the inquiry and examine the

relationship between armed conflict and treaties in general.

3.4.2. The Relationship between International Armed Conflict and Treaties in

General

The question of the continued relevance or validity of treaties during armed

conflict is a subject that is regularly described as one of the problem areas in international law.131 In the 1929 case of Karnuth v. United States, the U.S. Supreme

Court made an observation which many scholars would still find true today:

The effect of war upon treaties is a subject in respect of which there are widely divergent

opinions. . . . The authorities, as well as the practice of nations, present a great contrariety

of views. The law of the subject is still in the making, and, in attempting to formulate

principles at all approaching generality, courts must proceed with a good deal of caution.132

In spite of various attempts at codification, which will be discussed below,133

there are no international treaties in force which explicitly regulate this subject.

In what follows, evidence of State practice and opinio juris will be discussed, followed by an analysis of case law and a review of the doctrine on the legal effects of

armed conflict on treaties in general. This section of the chapter ends with a

methodological proposal for the examination of the relationship between multilateral environmental agreements and armed conflict.

A. State Practice and Opinio Juris

At the Outbreak of Hostilities.

Under the traditional model, premised on a legal dichotomy between war and

peace, questions regarding the continued operation of treaties between belligerents

did not arise. At the outbreak of armed conflict, belligerent States issued declarations of war, according to which, all treaties with belligerents were abrogated. Thus,

in 1911 Turkey declared war on Italy and proclaimed that all of her treaties with Italy were thereby at an end.134 This was still the official French position at the

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outbreak of World War II.135 In its declaration of war against Japan, the French

government announced the abrogation of all conventions with the former.136

At the end of the war, the fate of pre-war treaties was decided by subsequent

peace treaties. Thus, Article II of the Definitive Treaty of Peace between Great

Britain and France, signed at Paris in 1783, “renewed and confirmed” the treaties

which had existed previous to the war.137

A U.S. author commented in 1958 that in “modern” wars, such proclamations

are not ordinarily made.138 However, even if modern armed conflicts are less frequently characterised by the formal commencement of hostilities, treaty relations

between contending States may still be affected as a result of official government

policy. It was argued before that the legal concept of a state of war remains significant despite the outlawry of war by the collective security systems of the 20th

century. Moreover, many countries continue to regard the creation of a formal

state of war as a possibility.139

A formal declaration of war has considerable consequences for domestic law.

For example, in the United States and the UK, Trading with the Enemy acts come

into operation. The opponent belligerent becomes an enemy, and all those living

and trading in that country become enemy aliens. Most obligations and transactions involving enemy aliens will be nullified and may become criminal. The

1939 UK Trading with the Enemy Act introduces a stringent regime of prohibitions and controls, and proceedings involving enemy aliens become subject to

serious constraints.140 In the United States, war suspends the right of enemy

plaintiffs to bring court proceedings.141

Absent a formal declaration of war, such effects do not come into operation automatically, but may be brought into operation by specific measures. Thus, in the

1982 Falklands/Malvinas conflict, the UK broke off diplomatic relations with Argentina, froze Argentinean assets, prohibited imports from the latter, and ceased

export credit guarantees. A similar course was followed by the UK following the

Iraqi invasion of Kuwait in 1990. In its immediate aftermath, the UK brought a

series of statutory instruments into operation to give effect to UN and EC sanctions aimed at depriving Iraq of any financial and economic benefits and to

induce it to change course.142

At the Conclusion of Peace Treaties.

From the above it follows that government opinion and State practice on the

effect of hostilities on pre-war treaties may be derived not only from declarations

and documents at the outbreak of hostilities but also from clauses included in

subsequent peace treaties.143 Nevertheless, there are several obstacles. The terms

of some peace treaties are biased in favour of victorious States, even at the expense

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of third States.144 Furthermore, the language used by many treaties is, at best, inconclusive as to the question which concerns us here: namely the legal effect of

pre-war treaties during the conflict. For instance, the Versailles Peace Treaty (and

its counterparts145) includes elaborate provisions for the fate of multilateral and

bilateral treaties. As to the former category, Articles 282 to 288 contain detailed

provisions for specially named multilateral conventions. Article 282 enumerates

26 conventions of an economic and technical character that “shall be applied” as

between the Allied Powers and Germany; Articles 283 to 286 deal with multilateral conventions in the area of postal communications, telegraphic conventions

and intellectual property that will be applied between the victorious powers and

Germany upon the fulfillment of certain conditions. The arbitrary character of

these provisions is revealed in Article 287, which stipulates that one particular

convention will be applied between all parties, except for France, Portugal and

Romania.146 Moreover, use of the term “apply” in respect of these multilateral

conventions does not indicate what the status of these treaties was during the past

war.

As to the category of bilateral treaties, the Allied and Associated Powers were

given the right by Article 289 to select bilateral treaties they wished to “revive” by

means of a notification addressed to the vanquished power(s). Use of the term “revive” might suggest that these bilateral treaties had not been annulled during the

war, but that they had at most been suspended between belligerents for the duration of the conflict. However, such an interpretation is far from certain since the

penultimate paragraph of Article 289 of the Versailles treaty stipulates that all

other bilateral treaties concluded between the former belligerents “are and remain abrogated.”147 In addition, the last paragraph of Article 289 gave all Allied

and Associated Powers the right to “revive” bilateral treaties with Germany, even

if they had never declared war on the latter.

The peace treaties concluded after World War II differ from the Versailles

model in that only bilateral treaties between victorious and vanquished powers

were expressly dealt with. The absence of a regulation for multilateral treaties has

subsequently been seized upon as proof that this type of treaty had not been abrogated between belligerents at the outbreak of World War II, but had been

suspended, at most.148

With regard to the fate of bilateral treaties, World War II peace treaties follow in

the footsteps of the Versailles treaty.149 Hence, the victorious Powers were allowed

to select those treaties which they wished to apply for the future.150 This allowed

Great Britain and India to take control over Thailand’s post-war treaty relations.151

Again, there is evidence of arbitrariness in the State practice following World War

II. The United States used the treaty revival procedure to notify a few “new” treaties

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to defeated Powers—Italy, Bulgaria, and Japan—although none of these had been

in force between the United States and the defeated States prior to the conflict.152

Moreover, the language used in the peace treaty clauses after World War II reveals very little about the status of bilateral pre-war treaties between belligerents.

Whereas World War I peace treaties used the term “revive,” most of World War II

peace treaties use the formula “keep in force or revive.”153 As for the status of treaties not notified, each of the peace treaties concluded after World War II resolved

the question by providing that they shall be regarded as abrogated.154 It is interesting to note that whilst the victorious States chose to revive very few prewar

treaties after World War I, a far greater number of pre-war (bilateral) treaties were

revived after World War II.155

In sum, the language used in these peace treaties shows that the drafters did not

wish to be drawn on any theory regarding the effects of the past conflicts on treaties. They were primarily concerned with the settling of post-war Treaties and

other relations with the defeated States for the future.

The post-war settlement of treaty relations involving Austria and Germany confirm the growing irrelevance of peace treaties for the question that concerns us here.

The State Treaty of Austria, signed in 1955, did not include provisions on prewar

treaties, apparently because she was not considered a vanquished State by the

Allies.156 Professor Verosta claims that Austria “applied again” all multilateral and

bilateral pre-war treaties which she had concluded since 1918, but that some additional protocols were needed to meet the new circumstances.157 As for Germany,

the third Reich was dissolved at the end of World War II, and no formal peace

treaty was signed. No comprehensive solution was ever devised, and many U.S.

courts had to deal with cases involving pre-war treaties with Germany.158

A further problem is that since World War II, inter-State armed conflict is only

rarely terminated through the conclusion of formal peace treaties. No such treaties

were concluded after the 1980–1988 Iran-Iraq159 and 1990–1991 Gulf conflicts.160 In

addition, the few that were concluded lack provisions on pre-war relations for a variety of reasons. The 1970 Egypt-Israel Peace Treaty ends the state of war between the

Parties by express provision,161 but it does not contain a settlement of pre-war treaty

relations, since presumably, there were none. The same applies to the 1983 Agreement

between Lebanon and Israel162 and to the 1994 Israel-Jordan Peace Treaty.163 The

1995 Dayton/Paris Peace agreements do not contain any such provisions either.l64

Other Evidence of Government Views.

Shortly after World War II, a Swedish scholar sought the views of several governments on the effects of World War II on, inter alia, multilateral treaties of a

technical or non-political nature, the fate of which had not been expressly

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regulated by the peace treaties. The most representative replies received were as

follows. The British Foreign Office replied that:

It is not the view of His Majesty’s Government that multilateral conventions ipso facto should

lapse with the outbreak of war, and this is particularly true in the case of conventions to which

neutral Powers are parties... (...) Indeed, the true legal doctrine would appear to be that it is

only the suspension of normal peaceful relations between belligerents which renders impossible

the fulfillment of multilateral conventions in so far as concerns them, and operates as a

temporary suspension as between the belligerents of such conventions.165

Similarly, a former director of the French Foreign Ministry accepted that multilateral treaties may have only been suspended during the war between belligerents.166

The legal adviser of the U.S. Department of State replied that with regard to

nonpolitical multilateral treaties, the United States took the view that these were

not ipso facto abrogated by war, but that certain provisions may, as a practical matter, have been inoperative. He added that:

The view of this Government is that the effect of the war on such treaties was only to terminate

or suspend their execution between opposing belligerents, and that, in the absence of special

reasons for a contrary view, they remained in force between co-belligerents, between

belligerents and neutral parties, and between neutral parties.167

During the hearings before the U.S. Committee on Foreign Relations on the

proposed Test Ban Treaty (1963), the question was raised whether it would prohibit the use of nuclear weapons in time of war. Article 1 of this treaty (hereinafter

PTBT) prohibits:

. . . any nuclear test weapon test explosion, or any other nuclear explosion, at any

place under its jurisdiction or control.168

In reply, the U.S. Department of Defense argued that it was standard practice “in treaties outlawing the use of specified weapons or actions in time of

war” for the treaties to state expressly that they apply in time of war, and that

since the proposed treaty did not contain such language, it must, therefore, be

presumed that no such prohibition would apply.169 Whilst the reasons given

may be open to challenge, an analysis of the travaux préparatoires indicate that

the words “or any other nuclear explosion” were inserted originally at the request of the UK for the purpose of banning “peaceful-use” explosions as well as

test explosions.170

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This view is notable for several reasons. Although the PTBT is on its face a disarmament treaty, it has obvious environmental implications. Since the purpose of

the treaty is “to end the contamination of man’s environment by radioactive substances,”171 Schwelb regarded it as nearer to a “human rights, world health or

safety at sea convention” than a disarmament convention. Furthermore, he considered it significant that the treaty does not prohibit underground testing nor, in

his opinion, the use of nuclear weapons in time of war.172 Moreover, the above

U.S. view contradicts claims made before the ICJ by opponents of the legality of

nuclear weapons. Several States argued that the PTBT applies in peace and in war,

and that it should hence be interpreted as prohibiting the use of nuclear weapons.173 Finally, it is noteworthy that the 1996 Comprehensive Nuclear Test Ban

Treaty (CTBT) does not contain any provision for the outbreak of armed conflict

either.174

B. Case Law. There is considerable case law on the effect of war on treaties.

But it consists predominantly of municipal case law dealing with situations arising from World War II, and/or with narrow issues regarding a formal state of

war.175 There are, nevertheless, a few international decisions on problems related

to armed conflict and treaties.

International Jurisprudence.

There are several international cases concerning the relationship between war

or armed conflict and treaties. Some of these deal with the fundamental question

as to whether certain treaties can continue to apply during war or armed conflict.

Others discuss principles of interpretation.

The North Atlantic Coast Fisheries case (1909-1910) concerned disagreements

between the United States and Great Britain on the effect of the War of 1812 on a

treaty of 1783 which granted fishing rights to Americans in the North Atlantic. In

its award, the Permanent Court of Arbitration noted in passing that:

International law in its modern development recognises that a great number of

treaty obligations are not annulled by war, but at most suspended by it.176

This statement should be contrasted with the award rendered in Dalmia Cement Ltd. v. National Bank of Pakistan (1976). Appointed as sole arbitrator,

Professor Lalive needed to determine whether the hostilities of 1965 between India and Pakistan, which lasted 17 days and involved a substantial number of

troops, had amounted to a state of war. He decided in the negative on two main

grounds. First, he rejected the argument that a state of war cannot exist between

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UN Members, holding that the Charter led to a mere presumption that its parties

did not intend to create a state of war in the absence of clear indications to the contrary.177 Second, he found it significant that neither party had broken off

diplomatic relations nor regarded any of the bilateral treaties between themselves

as cancelled upon the outbreak of hostilities.178 This arbitral decision is debatable

on several counts.

Apart from Pakistan’s claim that she was at war with India,179 there was considerable evidence that both parties had attempted to exercise traditional

belligerent rights, including measures of economic warfare affecting third

States.180 Moreover, the arbitrator relied on the outdated theory that a state of war

implies the “complete rupture of international relations” and the automatic cancellation of treaty relations between belligerents.181

The latter part of the award is at variance with current principles of international law reflected, inter alia, in the 1969 Vienna Convention on the Law of

Treaties.182 As was stressed by the panel of arbitrators in Lafico and Burundi

(1991):

The idea that the execution of treaties should be affected by the severance of

diplomatic and consular relations is even more incongruous when it is borne in

mind that the most authoritative recent doctrine, emanating from the Institute of

International Law, considers that even armed conflict does not suspend the

application of treaties.183

The ICJ has in several contemporary cases dealt either directly or incidentally

with the problem of the continued relevance during modern—non-war—hostilities of bilateral treaties concluded primarily to regulate commercial relations

between States.

In its 1980 decision regarding the Hostages case, the ICJ assumed jurisdiction, inter alia, on the basis of the Treaty of Amity, Economic Relations, and

Consular Rights concluded in 1955 between the U.S. and Iran.184 The Court

found Iran responsible towards the United States for having committed successive and continuing breaches of the obligations laid upon it, inter alia, by

the 1955 Treaty. The import of this decision is that the Court did not regard

the treaty as abrogated, suspended, or not applicable to acts of violence committed against the U.S. Embassy and its staff, for which it held the Iranian

government responsible.185

The same treaty lies at the basis of the claims currently pending before the

Court in the Oil Platforms case, which includes claims concerning Operation

Praying Mantis.186 In its application, Iran contends that the attack and the

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destruction of three offshore oil production complexes carried out by the U.S.

Navy in 1987 and 1988 constituted a fundamental breach of various provisions of

the 1955 Treaty of Amity.187 The United States raised as preliminary objection

that questions concerning the use of force fell outside the ambit of the 1955

Treaty, since it deals with commercial and consular provisions.188

In its decision of 12 December 1996, the Court rejected the U.S. objection. It

pointed out first, that neither party contested that the Treaty of Amity was still in

force and recalled that a similar view was taken in its above-mentioned decision in

1980.189 It then noted that the treaty did not expressly exclude certain matters

from the Court’s jurisdiction and held that a violation of the rights of one party

under the treaty by means of the use of force was as unlawful as a violation by

other means.190 The Court subsequently held that the contested military actions

of the United States had the potential of affecting the freedom of commerce to

which Iran was entitled according to the treaty.191

A similar dispute had been at issue in the decision in the Nicaragua case. In its

memorial, Nicaragua had relied as a subsidiary means on the jurisdictional clause

of the 1956 Treaty of Friendship, Commerce and Navigation with the United

States.192 Nicaragua submitted that the disputed U.S. military and paramilitary

activities constituted a violation of the treaty, whilst the United States objected

that the disputed activities fell outside its ambit. In its 1986 judgement, the ICJ

held that the United States had acted in breach of the 1956 Treaty and had committed acts calculated to deprive the treaty of its object and purpose. The military

and paramilitary activities specifically mentioned by the Court included a series

of attacks directed against Nicaraguan territory and ports, the laying of mines in

the internal or territorial waters of the claimant, and the declaration of a general

embargo on trade.193

What these three decisions have in common is that the Court held that questions related to the use of force were not per se excluded from the scope of bilateral

commercial treaties. The relevance of this case law for the present study is as follows: although these commercial treaties were premised on the existence of

friendly relations between contracting parties, their object and purpose were, in

the words of the Court, “not to regulate peaceful and friendly relations between

the two States in a general sense.”194 In addition, none of the treaties contained

specific provisions on armed conflict.

In the 1923 case of the SS Wimbledon before the Permanent Court of International Justice (PCIJ) and in the requests by WHO and the UN General Assembly

concerning the Legality of Nuclear Weapons, a further principle of treaty interpretation was debated. The 1923 case concerned the interpretation of Article 380 of

the Treaty of Versailles, which provided that:

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The Kiel Canal and its approaches shall be maintained free and open to the vessels of

commerce and of war of all nations at peace with Germany on terms of entire equality.

In March 1921 Poland was at war with Russia, and Germany had declared herself a neutral in the conflict. In application of express prior neutrality orders, the

Kiel Canal director refused entry into the canal to the SS Wimbledon, an English

vessel chartered by a French company to carry war materials for the Polish government to the naval port of Danzig.195 In the ensuing case before the PCIJ,

Germany pleaded that Article 380 of the Versailles treaty posed no obstacle to the

application of neutrality orders in the Kiel Canal.196 Its opponents argued that

Germany’s obligations under the treaty were supreme and that Article 380 was a

permissible infringement upon Germany’s sovereignty. The majority of the

Court resorted primarily to a literal interpretation of Article 380, finding that its

terms were clear and gave rise to no doubt. They held that Germany was perfectly

free to regulate her neutrality in the Russo-Polish war, but subject to the provisions of the article in question.197

In their joint dissenting opinion, Judges Anzilotti and Huber saw the legal

question differently. They asked whether:

. . . the clauses of the Treaty of Versailles relating to the Kiel Canal also apply in the

event of Germany’s neutrality, or do they contemplate normal circumstances, that is

to say, a state of peace, without affecting the rights and duties of neutrality?198

They found that even in the absence of an express treaty provision allowing her

to do so, international law permitted Germany to take exceptional measures affecting the treaty, if done for the purpose of preserving her position of neutrality

or self-defence:

The right of a State to adopt the course which it considers best suited to the

exigencies of its security and the maintenance of its integrity, is so essential a right

that, in case of doubt, treaty stipulations cannot be interpreted as limiting it, even

though those stipulations do not conflict with such an interpretation.199

Although this proposition formed part of a joint dissenting opinion, the UK

argued in 1995 in connection with the advisory requests on the legality of nuclear

weapons that this opinion was not at variance with the PCIJ’s majority judgement.200 She further submitted that the fundamental and overriding character of

self-defence in international law constituted a principle of general application

to interpretation of treaty law.201 As seen before, in its 1996 Advisory Opinion,

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the ICJ accepted that environmental treaties could not be construed so as to deny

a State the right to use armed force in self-defence or to entail obligations of total

restraint in armed conflict.202

Municipal Case Law.

The municipal jurisprudence is so closely linked with constitutional municipal issues, and so diverse, that it is difficult to detect common principles and rules

that could be transferred easily onto the international plane.

In his report to the Institut de droit International (Institut), Professor Broms argued that the Judiciary ought to ascertain the opinion of the Executive before trying to

solve the problem of the legal effect of war on treaties.203 This procedure is followed in

one form or another by many countries.204For instance, it would be usual in proceedings before the English Courts for the Executive to be asked to certify whether there

was a state of war, indicating the precise moment of its commencement and its termination. The Crown is asked for guidance even if the UK is a non-contending party.205

The dominant theory applied by U.S. courts was expressed in a letter from the

Department of State to the Attorney-General in 1948 as follows:

. . . the determinative factor is whether or not there is an incompatibility between the treaty

provision in question and the maintenance of a state of war as to make it clear that the

provision should not be enforced.

206

This theory was already earlier applied by Judge Cardozo in the celebrated case

of Techt v. Hughes (1920), in which a rather dim view was taken of academic attempts at rule-making:

The effect of war upon the existing treaties of belligerents is one of the unsettled

problems of the law....International law today does not preserve treaties or annul

them, regardless of the effects produced. It deals with such problems pragmatically,

preserving or annulling as the necessities of war exact. It establishes standards, but it

does not fetter itself with rules. When it attempts to do more, it finds that there is

neither unanimity of opinion nor uniformity of practice.207

The study conducted by McIntyre after World War II shows that when the

U.S. Executive considered it in its own national security interest to suspend or abrogate a treaty during war, it would do so, and that the courts often deferred to

whatever policy the government of that moment adhered to, particularly on affairs such as trading with the enemy and on inheritance issues.208 Thus, in Clark

v. Allen (1947) the U.S. Supreme Court noted that the Department of State had

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changed its earlier position, no longer favouring the view that World War II had

abrogated all provisions of the 1923 Treaty of Friendship with Germany. The

Court subsequently held that a clause providing inheritance of realty under the

1923 Treaty was not incompatible with national policy.209

Particularly in commercial cases involving interpretation of contract clauses,

courts have been reluctant to apply the traditional technical meaning of the state

of war as intended by the Executive. English law on the effects of undeclared

wars has been strongly influenced by the case of Kawasaki Kisen Kabushiki

Kaisha of Kobe v. Bantham Steamship Co (1939).210 This concerned a charterparty

clause allowing cancellation “if war breaks out involving Japan.” In 1937 heavy

fighting took place between the regular forces of Japan and China, even though

war had not been declared and diplomatic relations were not broken off. A certificate obtained from the Foreign Office declared that the English government

was not prepared to say whether a state of war existed, but that this might not

necessarily be conclusive for the interpretation of the term “war” in particular

documents or statutes.211 The judge subsequently felt free to construe the term

“war” in the sense in which “an ordinary commercial man would use it” and

concluded that war existed for the purposes of the charterparty. This precedent

was subsequently followed in five cases related to the 1956 Suez conflict, during

which the Prime Minister had categorically denied that the UK was at war with

Egypt. The courts recognised that there were hostilities between the UK and

Egypt, albeit not involving war.212 In application of this case law it has been suggested that if a British court were called upon to construe the expression “war”

or similar terms in a commercial document, facts involving the Desert Storm

phase of the 1990–1991 Gulf war would be held to constitute belligerency in a

colloquial sense.213

Although general statements with respect to municipal jurisprudence are difficult to make, there are a few common trends. Municipal judges are generally

reluctant to consider political treaties as unaffected by war.214 A more liberal line

is followed for extradition agreements, for perpetual rights accorded to individuals, and in commercial matters including in particular intellectual property

rights. These treaties are often regarded as, at most, suspended during war between belligerents.215 The above principles have been confirmed by courts in

Austria,216 Belgium,217 Germany,218 Greece,219 Italy,220 Luxembourg,221 the

Netherlands,222 Norway,223 the United States224 and the UK.225 The French

Cour de Cassation, however, seems to adhere firmly to the theory that war annuls

most (bilateral) treaties between belligerents.226

Unsurprisingly, courts in many countries conform to the legal standpoint of

the Executive regarding questions as to whether a state of war exists, particularly

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if the country itself is involved in the conflict.227 It is also a matter for the Executive to decide on the formal end of a state of war.228 Absent a formal declaration of

war or a firm indication by the government, judges are reluctant to consider treaties

as automatically terminated or suspended by the outbreak of armed conflict.229

Still, a caveat needs to be added for cases involving public policy. It has been

noted that British courts will probably refuse to enforce contracts which are considered detrimental to the interests of the country, even in undeclared wars. This

may affect transactions considered as assisting opponents in modern jus ad bellum

“non-war” hostilities such as UN enforcement operations and self-defense measures.230 Hence, municipal courts are empowered to examine whether the

continuation of a particular treaty would be incompatible with express or implied

government policy of national and perhaps even international security interests.

As a consequence of the above, the same hostilities may be construed differently, depending on the circumstances and purposes of the legal assessment.231

Thus, while the Korean conflict did not amount to war in the legal sense in the

UK, courts in the Australia, France, New Zealand, and the United States232 have

regarded the conflict as war for purposes such as insurance policies233 and military discipline.234

However, there is little jurisprudence on the type of treaties this study is concerned with, although there is case law on treaties dealing with inland navigation:

In The Golden River v. The Wilhelmina (1950), the District Court of Rotterdam

needed to decide whether the Convention of Mannheim of 1868 concerning Navigation on the Rhine remained applicable during World War II between Holland

and Germany. The court decided that this multilateral treaty was not concluded

in contemplation of war and that it was suspended as between Holland and Germany from May 1940, but only insofar as, and as long as, its provisions had in fact

become inapplicable. Applying this criterion of factual inapplicability to the case at

hand, it furthermore held that the convention remained suspended after the unconditional surrender of Germany, during the period necessary to consolidate this

surrender and to restore order in the chaos as a result of the fighting in Europe.235

In conclusion, its needs to be observed that the existing case law contributes

little to the main questions this study is concerned with. Municipal case law does

not answer the fundamental question as to whether multilateral environmental

agreements can be said to apply at all during armed conflict. What it does indicate

is that the views of the Executive on the effect of treaties during armed conflict are

regarded as binding and that, failing a clear indication to that effect, courts will

check whether the continued operation of a treaty is compatible with national

policy. If the outcome of this analysis is positive, courts favour the view that most

treaties survive the outbreak of war but that some provisions may be inoperative

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on practical or factual grounds. However, municipal case law does not reveal any

standards to determine whether, and if so on what grounds, contracting Parties

may terminate or suspend the operation of such agreements during armed

conflict.

C. Development of Legal Doctrine.In the period between the turn of the century and World War II, the problem of the effects of war on international treaties

attracted the attention of several scholars.236 In addition, two major academic studies were published. The first of these was a report written by Politis on the “Effects

of War on International Obligations and Private Contracts,”237 adopted by the

Institut at its Christiana session in 1912.238 The second major study was conducted

by Professor Garner for the Harvard Research in International Law on the Law of

Treaties. The proposed draft convention with comments on the law of treaties was

published in 1935, and it contained an elaborate provision on the effect of war.239

After World War II interest in the subject all but disappeared.240 The ILC consistently refrained from including the effects of war/armed conflict in its studies,

including, in particular, treaty law. Nevertheless, many of the disciplines of international law which the ILC has tried to codify and progressively develop are

relevant for the question of the continued operation of multilateral environmental treaties in armed conflict.241

In the mid-1970s, academic interest in the subject of the effects of armed conflict on treaty law was rekindled when the Institut agreed to review the work of

Politis and appointed Professor Broms as rapporteur. It was only ten years later,

and after much discussion, that the Institut finally adopted a Resolution on “The

Effects of Armed Conflict on Treaties,” at its 1985 Helsinki session.242 The most

recent contribution of the Institut will be discussed later in more detail.243

It is often said that there are two opposing doctrinal schools on the legal effect

of war on international treaties.

• a first one according to which all treaties are annulled by war;244

• a second one according to which the outbreak of war as a rule does not affect

treaties;245

However, the first “radical” theory, according to which the outbreak of war

brings nothing but chaos to international relations and consequently annuls ipso

facto all treaties, has never received many adherents. Politis already expressed doubt

about the conception that war had an annulling effect on all treaties.246 On the

other hand, even Garner’s theory that there were no reasons of public policy why

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any treaty should be regarded as ipso facto annulled by war247 was never fully accepted in State practice.248

Currently, the most universally accepted doctrinal premise is that war and

other forms of armed conflict have no automatic (ipso facto) cut-off effect on treaties, but that some treaties are, may, or may have to be suspended.

There are multiple reasons for this change of heart by legal doctrine. Some of

these are related to the changing concept of war, others to principles of treaty law.

As to the first, international armed conflict is no longer regarded as causing total

disruption of all legal bonds between States; belligerents need to observe some basic rules of humanity between each other, and State practice shows that

contending States often continue to maintain legal relations with each other in

several areas.249 As for treaty law, there is a modern legal presumption—favor

contractus—which favours the continued operation of treaties, even in such extreme circumstances as armed conflict.250 This is related to the fundamental

principle of pacta sunt servanda, laid down in Article 26 of the 1969 Vienna

Convention on the Law of Treaties, the importance of which the ICJ reaffirmed

in its judgement in the Gabcíkovo-Nagymaros Project case.251

Modern legal doctrine on the legal effect of armed conflict on treaties tends to adopt

a pragmatic approach, taking into account the intention of the parties as well as the type

of treaty concerned.252 Although this does not amount to a consistent theory, it aims at

reducing the impact of armed conflict on treaty relations whilst recognising that in

some areas, the continuing effectiveness of treaties is incompatible with a state of war or

armed conflict.253 The pragmatic approach of modern doctrine combines the traditional technique of classification of treaties with the intention theory.

Under the classification theory, treaties are organised according to their nature

and type, and different rules are said to apply to different classes of treaties, according to various criteria:254

• bilateral treaties are distinguished from multilateral treaties;

• treaty relations between contending (belligerent) States are distinguished

from those involving non-contending (neutral) States;

• political treaties such as treaties of friendship and commerce, of alliance and

non-aggression and peace treaties between belligerents are annulled (according to the older theories) or at least suspended (modern theories)

during the conflict between belligerents;

• executed treaties such as those entailing territorial settlements and international boundaries remain unaffected, and by extrapolation, the same rule

applies to treaties establishing international régimes or entailing a special

status for a region;

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• treaties concluded with war in mind, such as conventions of the Hague Law

type, forbidding certain means and methods of warfare, remain in force;

• the operation of treaties that establish international organisations remain in

effect between belligerents and neutrals, but may be suspended as between

belligerents;

• non-political treaties such as those regulating commerce, navigation, and

matters of private international law between citizens of belligerent countries, may be suspended between belligerents;

A recent addition to the classification theory is the category of humanitarian

treaties, pursuant to a rule introduced by the 1969 Vienna Convention on the Law

of Treaties. According to Article 60(5) of this Convention, the right to terminate

or suspend the operation of a treaty as a consequence of its breach—the exceptio

non adimpleti contractus—does not exist for:

. . . provisions relating to the protection of the human person contained in treaties of

a humanitarian character, in particular to provisions prohibiting any form or

reprisals against persons protected by such treaties.

It is widely accepted that the phrase “provisions relating to the protection of

the human person . . .” includes international humanitarian law.255 From the

Namibia Advisory Opinion it can be inferred that the ICJ considered Article 60 (5)

an expression of a general principle of law that predated the 1969 Vienna Convention by at least half a century.256

The classification theory has several weaknesses. First, it is obvious that not all

modern treaties can be labelled as belonging exclusively to one or the other category. Secondly, the theory fails to take the complexities of international armed

conflict into account. For example, it is often asserted that executed treaties such as

those involving territorial and boundary settlements remain unaffected between

belligerents. Yet, history shows that this rule remains valid only as long as the

treaty at issue is not a casus belli: i.e., the reason why the Parties resorted to armed

force in the first place. Indeed, disputes over natural resources and territorial claims

are often causes of war; battles tend to take place along strategic “natural” places

such as rivers.257 The recent conflict in the former Yugoslavia is a stark reminder of

the continuing fragility in international law of the purported principle of the “intangibility” of State borders.258 State practice proves that several criteria and rules

suggested by classification theorists belong to the realm of jus de legu ferenda.

Under the intention theory, first advocated by Hurst, the primary test as to

whether or not a treaty survives the outbreak of war between parties is to be found

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in the intention of the parties at the time the treaty was concluded.259 It was this

theory that inspired the Harvard Research proposal for a provision on the effect of

war on treaties.260

However, it is clear that the intention theory will rarely lead to results that differ radically from the classification theory. The real contribution of the intention

theory lies in its accommodation of those treaties which cannot be readily classified in any of the above-mentioned classes, provided that the parties’ intention is

clear or can be inferred: for example, it will accommodate all treaties with a provision on the outbreak of war/armed conflict.

A major weakness of this theory is that it rests on two debatable assumptions;

first, that drafters of treaties have a particular intention with respect to the question of armed conflict, and secondly, that this intention can be uncovered. In

regard to the attendant problem, the theory is therefore of little real help. When a

treaty contains a clause on armed conflict, the intention of the drafters is clear,

and one does not need the theory to resolve the issue. The difficult cases concern

treaties that are silent on the issue of armed conflict. In some instances it might be

that the problem was discussed during the travaux préparatoires, but the rules of

treaty interpretation do not necessarily permit resort to statements that have not

been formally recorded in the treaty text. The intention of the parties should be

derived primarily from the wording of the treaty itself or from related instruments. Recourse may be had to supplementary means of interpretation such as the

travaux préparatoires or the circumstances surrounding its conclusion, in case the

general rules of interpretation lead to an ambiguous, obscure, manifestly absurd

or unreasonable meaning of the text.261

Finally, it should be noted that most of the doctrine on the subject is primarily

concerned with the effect of (a formal state of) war on treaties, and that comparatively little attention has been paid to the effects of armed conflict. However, there

is little doubt that the tendency in international State practice, case law and doctrine, to reduce the impact of war on treaty relations will apply a fortiori to armed

conflict.262 Armed conflict does not involve a total disruption of treaty relations

between States, and the treaty law principles of favor contractus and pacta sunt

servanda should obviously apply in relation to armed conflict as well.

This is supported by the work of the Institut that, as will be seen immediately

below, has equated a state of war with armed conflict for the purposes of its 1985

Helsinki Resolution.263

D. The Codification Efforts of the Institut de Droit International between 1974–1985.It was seen above that the Institut took more than ten years to

conclude the subject. During these discussions, several members objected to the

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adoption of the resolution on the grounds that the subject was too political,264

that the suggested principles were too selective,265 or that some principles were

not supported by State practice.266 Professor Brownlie questioned the utility of

the entire endeavour. He saw it as internally contradictory insofar as it claimed to

enunciate principles of positive international law whilst asserting that State practice in these matters was not uniform.267

These criticisms may explain some of the following peculiarities. For instance,

in its preamble, the Resolution states that it shall not prejudge the application of

the provisions of the Vienna Convention on the Law of Treaties. As pointed out

by Professor Dinstein, this amounts to a “double negative renvoi,” since the Vienna Convention itself contains several articles stipulating that it shall not

prejudge questions related to the use of force.268

A second peculiarity concerns the definition of the term armed conflict for the

purposes of the resolution. Article 1 defines this concept as:

...a state of war or an international conflict involving armed operations which by

their nature or extent are likely to affect the operation of treaties between States

parties to the armed conflict or between States parties to the armed conflict and third

States regardless of a formal declaration of war or other declaration by any or all of

the parties to the armed conflict.269

From the travaux préparatoires, it appears that the formulation served several

purposes: to take the realities of modern warfare into account, to convey a de

minimis threshold, and to exclude the possibility that a State which is not materially engaged in hostilities would be entitled to affect treaty relations by a simple

declaration of war.270 The problem, though, is that the definition results in a petitio principii, for it provides a circuitous answer to the question of the effects of

armed conflicts on treaties: One can argue indefinitely on what type of conflict

“by their nature or extent are likely to affect the operation of treaties between

States.”

The Institut’s modest ambitions are clear from the preamble, which describes

the resolution’s aim as affirming certain principles of international law considering the lack of uniformity in State practice. Furthermore, whilst aiming at

reducing the effects of armed conflicts on treaties, the resolution was meant primarily as a residual means of interpretation.271 However, the contradiction

between the enunciation of principles of positive international law and the admitted lack of uniformity in State practice was never fully resolved.272

The operational part of the resolution affirms much of the modern legal doctrine discussed above. The outbreak of armed conflict does not ipso facto terminate

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the operation of treaties in force between parties to the conflict (Article 2); it does

not ipso facto terminate or suspend the operation of bilateral treaties between a

party to an armed conflict and a third State, nor of the operation of multilateral

treaties between third States or between parties to an armed conflict and third

States (Article 5); and it brings into operation treaties which by reason of their nature or purpose are to be regarded as operative during an armed conflict (Article

3). Article 11 urges parties to resume suspended treaties as soon as possible at the

end of an armed conflict or to agree otherwise.

The provisions that merit special attention are the following. Article 6 of the

Resolution stipulates that a treaty establishing an international organisation “is

not affected” by the existence of an armed conflict between any of its parties.

However, most reports by international organisations on their work during both

World Wars contain evidence of the considerable extent to which their activities,

income and membership were affected by the ongoing hostilities. For some of

these organisations the implications were severe. Thus, during World War II the

International Labor Organisation was forced into changing its headquarters from

Europe to the United States, whilst the Central Commission for the Navigation of

the Rhine suspended work entirely during this conflict. Even organisations located in neutral countries, such as the Universal Postal Union (UPU) in

Switzerland, were not spared.273 Another obvious example is the collapse of the

League of Nations Organisation. Some Member States ended their participation

in compliance with the Covenants’ provisions on denunciation, whereas others

simply withdrew, with or without offering legal grounds. Following the establishment of the UN, the League of Nations was dissolved.

Seen against the background of the serious disruption that many international

organisations went through during both World Wars, as well as many previous

conflicts, the affirmative language of this provision appears, at a minimum, to

amount to a proposal de lege ferenda. In mitigation one should add that the

Institut’s travaux clarify that Article 6 was narrowly conceived in that whilst the

workings of international organisations may be affected by war, the treaty establishing the organisation itself should not be affected.274 This interpretation is

supported not only by State practice of the two World Wars: the case studies discussed in the beginning of this study demonstrate that during the 1980–1988 and

1990–1991 Gulf conflicts, regional institutions continued to function.275

A further provision that merits separate discussion is Article 4, which stipulates:

The existence of an armed conflict does not entitle a party unilaterally to terminate

or to suspend the operation of treaty provisions relating to the protection of the

human person, unless the treaty otherwise provides.

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This provision is noteworthy for several reasons. It was argued above that one

of the crucial questions that needs to be answered is—assuming that multilateral

environmental agreements can apply during armed conflict—whether and under

what circumstances contracting parties may invoke the existence of armed conflict as a ground for suspending (or terminating) their operation.

Environmentalists would argue that current international law requires every

ground for treaty suspension to be expressly agreed upon. Absent a provision

authorising suspension in case of war, contracting parties would not be allowed to

invoke armed conflict as an excuse. Military lawyers might object that armed conflict is lex specialis, and that every State has the right to suspend treaties in cases of

war or armed conflict, even if such a possibility is not expressly provided for in the

treaty itself.

Both sides of the argument were, as seen above, invoked in State submissions

before the ICJ in connection with the requests for an advisory opinion on the legality of nuclear weapons.276 The argument has obvious environmental significance,

for few international environmental treaties deal expressly with armed conflict.

Two diametrically opposed positions have been advocated in the doctrine on this

issue. The EC Experts report concludes that because armed conflict contingency

clauses are rare, absent such clauses, parties are not allowed to suspend the operation of treaties on the ground of armed conflict.277 Others contend that the

absence of a clause on armed conflict proves that the treaties in question cannot be

applied in armed conflict, or at least that their application is uncertain.278 Both

positions will be tested in the case studies of conventions on marine pollution and

maritime safety that will be conducted in the next part of this study.279

The Institut’s opinion on this problem may not be immediately apparent, but

it is noteworthy that Article 4 is the only provision (apart from Article 6) to deny

contracting Parties the right to suspend certain treaties on the ground of armed

conflict. The travaux show that the Institut was of the opinion that a blanket denial of the right to suspend or terminate any treaty as a result of armed conflict

“would not be based on the facts relating to the known practice of States.”280 They

further demonstrate that Article 4 was inspired by Article 60(5) of the 1969 Vienna Convention on the Law of Treaties, and that it covers provisions of both

human rights treaties and humanitarian law.281

Article 4 of the Resolution is noteworthy in another respect. It was seen earlier

that there is a school of thought according to which environmental protection

should be linked with human rights.282 This was advocated also before the ICJ in

regard to the Legality of Nuclear Weapons advisory opinion.283 If such a link between environmental protection and human rights is recognised, Article 60(5) of

the 1969 Vienna Convention offers an excellent vehicle through which States

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could be denied the right to suspend international environmental agreements in

case of armed conflict.

During the 1985 Helsinki session, one of its members proposed that IEL treaties should be treated in similar fashion as humanitarian treaties on the ground

that protection of the environment was in essence “a natural extension of the protection of the human person.” The tenor of the amendment was to prohibit

belligerent parties to terminate or suspend environmental treaties. However, its

proponent failed to convince the meeting. Some members thought that the subject was brought up too late and deserved to be studied separately; others

expressed serious doubt on the validity of the proposed rule. The amendment was

overwhelmingly rejected. Nevertheless, the meeting agreed to place on record a

statement to the effect that humanitarian treaties may “to a certain extent” comprise protection of the environment.284

Finally, the Helsinki Resolution is remarkable because of the importance it attaches to consequences of unlawful use of force under the UN Charter. The

relevant provisions were highly controversial. The disagreement centred on

whether treaty relations should be settled pursuant to the principle of equality of

all belligerents following jus in bello,

285 or follow the modern jus ad bellum distinction between lawful and unlawful uses of force instead.286

Some members argued that the entire issue of treaty relations as a consequence

of armed conflict should be resolved in accordance with the UN Charter’s principles.287 Consequently, an aggressor State should be denied all benefits under

treaty law, based on the principle ex injuria jus non oritur.

288 Other members objected that there was no State practice to support such a distinction between

aggressors and victims with respect to treaty relations.289 A further suggestion

was that the Institut should restrict itself to guidelines for treaty relations durante

bello on the basis of the principle of equality of belligerents, but that it should

leave open the possibility that post bellum another assessment may be needed pursuant to the principles of jus ad bellum.

290 This debate strongly resembles the

discussions on compensation for violation of jus in bello and jus ad bellum examined earlier.291

Whilst the final text of the Resolution does not take a position on all of the

above issues, it is noteworthy that it devotes not less than three of its eleven articles to the consequences of modern jus ad bellum on treaty relations in armed

conflict. Article 7 allows victim States to suspend treaties in whole or in part if incompatible with the exercise of individual or collective self-defence. Article 8

obligates States to terminate or suspend treaties to comply with resolutions of the

Security Council. Article 9 denies unlawful aggressor States the right to terminate

or suspend treaties “if the effect would be to benefit that State.”

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Far from being unrealistic, it seems that these articles have been remarkably

prescient in anticipating the increased impact of the Charter’s collective security

system following the end of the Cold War. The legal aftermath of the 1990–1991

Gulf Conflict, Res. 687 (1991) and the work of the UN Compensation Commission illustrate the possible effect of Articles 7 to 9 of the Helsinki Resolution.

Finally, Article 10 entails again a renvoi to unsettled matters insofar as it provides that the Resolution does not prejudge rights and duties arising from

neutrality.

3.4.3. Contributions Made by the ILC Codifications

The ILC has consistently abstained from considering the effects of war or

armed conflict in its work.292 As seen before, it was excluded from its studies on

the law of the sea,293 and on State liability for acts not prohibited by international

law.294

However, in respect of its own 1994 draft articles on watercourse law, the ILC

commented that “the present articles themselves remain in effect even in time of

armed conflict.”295 In their statements before the ICJ on the legality of nuclear

weapons, the Solomon Islands relied on this comment and requested the Court to

apply “the same presumption in favour of applicability where an instrument was

silent.”296

It should be noted firstly that the observation was not recorded in the draft

articles themselves but only in the comments thereto. In any event, the ILC’s observation appears far too general, since past practice shows that international

watercourses have strategic value and may become the scene of armed conflict.297 The ILC has not indicated whether its observation applies only to States

not involved in the conflict or includes contending parties as well. Hence, it may

amount to a rule de lege ferenda. As seen before, during the debates in the General Assembly on the ILC draft, delegates were anxious to stress that the only article to deal

explicitly with armed conflict—Article 29—was not intended to change the status of

the protection of watercourse installations under current laws of armed conflict.298

As for treaty law, there are several articles of the 1969 Vienna Convention on

the Law of Treaties that touch on the use of force in international relations, but

they expressly leave open the matter that concerns us here. Apart from Articles 63

and 74, which stipulate that the severance of diplomatic and consular relations

does not in principle affect treaties between parties nor their capacity to conclude

treaties, the drafters’ reluctance to be drawn any further on the matter of armed

conflict is apparent from Article 73:

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The provisions of the present Convention shall not prejudge any question that may

arise in regard to a treaty from a succession of States or from the international

responsibility of a State or from the outbreak of hostilities between States.

and Article 75:

The provisions of the present Convention are without prejudice to any obligation in

relation to a treaty which may arise for an aggressor State in consequence of measures

taken in conformity with the Charter of the United Nations with reference to that

State’s aggression.

This trend was confirmed by the 1978 Vienna Convention on Succession of

States in Respect of Treaties,299 and by the 1986 Vienna Convention on the Law

of Treaties between States and International Organisations or between International Organisations.300

However, the fact that the Vienna Convention on the Law of Treaties does not

“prejudge” the effects and implications of armed conflict on treaties, does not

mean that its provisions may not apply. Whilst the 1969 Vienna Convention by

express provision does not have any retroactive effect, it is important to note that

many of its provisions are nevertheless regarded as customary law. This includes

the articles on suspension and termination, as emphasised by the ICJ in the 1997

Gabcíkovo-Nagymaros Project case.301

In the latter case, the ICJ also clarified the relationship between the law of treaties and State responsibility. The Court held that those two branches of

international law were different in scope and expanded on their relationship as

follows:

A determination of whether a convention is or is not in force, and whether it has or

has not been properly suspended or denounced, is to be made pursuant to the law of

treaties. On the other hand, an evaluation of the extent to which the suspension or

denunciation of a convention, seen as incompatible with the law of treaties, involves

the responsibility of the State which proceeded to it, is to be made under the law of

State responsibility.

Referring to its earlier case law on the issue, the Court also stressed that:

It is, moreover, well established that when a State has committed an internationally

wrongful act, its international responsibility is likely to be involved, whatever the

nature of the obligation it has failed to respect.302

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3.4.4. Methodology Suggested

In application of the foregoing, it is submitted that no sweeping generalisation

can be made regarding the application or non-application of multilateral environmental agreements during international armed conflict. Given the great

differences that exist amongst the conventions in the area of IEL, a cautious approach is advisable. Each treaty needs to be examined separately in order to

determine whether or not it can apply to the specific environmental problem

posed.

Furthermore, since the solution involves both questions related to the application of international treaties and the use of force in international relations, regard

must be given also to the Law of Treaties and the Law of State Responsibility:

(1) Whether environmental problems related to the use of armed force are governed by a particular treaty needs to be determined primarily according to the

terms of the treaty (the pactum) itself. Apart from the rules on treaty interpretation

recorded in the 1969 Vienna Convention, regard must be given to the principles

discussed in this chapter that relate specifically to questions of armed conflict.

These include the rule that no treaty isipso facto abrogated or suspended by armed

conflict, and the related rule that issues related to the use of force are not, per se,

excluded from the scope of treaties; on the other hand, it should be kept in mind

that the law of armed conflict operates as lex specialis with respect to conduct of

belligerent activities, and that no environmental treaty can be construed so as to

overrule a State’s inherent right to self-defence.

If the outcome of this examination is that the treaty applies in principle to

questions of armed conflict or if the outcome of this examination is uncertain,

several further tests need to be carried out.

(2) The treaty may contain explicit provisions on its continued operation during armed conflict, such as a clause allowing Parties to suspend the operation of

the treaty. Such a clause may then be resorted to by the contracting Parties. However, there may be grounds arising under the Law of Treaties or the Law of State

Responsibility which override such provisions.

Thus, as seen earlier, pursuant to Article 60(5) of the 1969 Vienna Convention

on the Law of Treaties, suspension or termination does not extend to provisions

relating to the protection of the human person contained in treaties with a humanitarian character. It remains an open question, though, whether and to what

extent this prohibition covers environmental provisions.303

A treaty clause allowing suspension or termination in armed conflict may also

be in conflict with a new peremptory norm of general international law (jus

cogens), as stipulated by Article 64 of the 1969 Vienna Convention. While the

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principle in question may reflect customary law, the procedure suggested by this

Convention may not.304 Furthermore, it should be noted that the Vienna Convention cannot be applied retroactively.305

According to Article 75, the provisions of the 1969 Vienna Convention are

without prejudice to any obligation in relation to a treaty which may arise for an

aggressor State in consequence of measures taken in conformity with the UN

Charter with reference to that State’s aggression. This is a clear reference to the

possible implications of Security Council decisions under Chapter VII of the

Charter for treaty relations between UN Members and identified aggressor States.

This is in accordance with, inter alia, Article 103 of the Charter which stipulates

expressly that “in the event of a conflict between the obligations of the Members

of the United Nations . . . and their obligations under any other international

obligation,” their Charter obligations prevail.306

The relevance of the latter hypothesis was underlined in the Lockerbie case. In

its order for provisional measures in 1992, the ICJ gave an extensive interpretation

to the powers of the Security Council. It held that by virtue of Articles 25-103 of

the UN Charter, a decision of the Council is able to prevail over treaty obligations

of the parties under any international agreement.307

(3) Even if a particular treaty does not include an express provision on the occurrence of armed conflict, it would still need to be examined whether armed

conflict can form a ground of treaty suspension or termination pursuant to the

Law of Treaties. Space does not permit to discuss every hypothesis in detail, but a

few remarks may nevertheless be in order.

Even if one accepts the modern view that no treaty is suspended ipso facto on account of the outbreak of armed conflict,308 a belligerent can still decide to

withdraw from a treaty, in full compliance with its provisions. In fact, belligerents

may even decide to suspend or terminate bilateral or multilateral agreementsinter

se by mutual agreement.309

General principles of treaty law may be applicable to the subject matter

as well. Non-contending States may conceivably invoke (material) impossibility of performance,310 and rebus sic stantibus to justify unilateral

suspension of a treaty.311 However, in the Gabcíkovo-Nagymaros Project

case, the ICJ had the occasion to stress that this type of defence to the general

rule of pacta sunt servanda should only be exceptionally allowed to stand.312

In addition, the State and treaty practice that will be examined in the following chapters indicate that armed conflict in itself is not sufficient a

ground to invoke the plea of rebus sic stantibus. Moreover, there is reason to

believe that the rebus sic stantibus theory was developed mainly to deal with

peaceful change.313

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(4) The next frame of reference is the Law of State Responsibility. As the ICJ indicated in the Gabcíkovo-Nagymaros Project case, the 1969 Vienna Convention

confines itself to defining—in a limitative manner—the conditions in which a

treaty may lawfully be denounced or suspended. The effects of a denunciation or

suspension seen as not meeting those conditions are to be judged according to the

Law of State Responsibility, which is expressly excluded from the scope of the Vienna Convention following Article 73.

The Law of State Responsibility was among the first topics which the ILC

selected as suitable for codification in 1949. This project is still ongoing. Chapter V of Part Two of the Commission’s draft is titled “Circumstances

Precluding Wrongfulness”; it was prepared at the turn of the 1970s and the

1980s under the responsibility of Mr. Roberto Ago and was accepted provisionally in 1980.314 According to the Commission, this chapter deals with

exceptional circumstances which render an international obligation inoperative and preclude the attribution of wrongfulness to an act counter to that

obligation—and the normally resulting responsibility.315 These special circumstances are:

(1) Consent validly given by the State whose rights are affected (Article 29 of

the draft); (2) Countermeasures in respect of an internationally wrongful act (Article 30); (3) Force majeure and fortuitous event (Article 31); (4) Distress (Article

32); (5) State of necessity (Article 33); (6) Self-defence (Article 34).

Many of these draft articles are regarded as reflecting customary law to varying degrees. For instance, in the 1997 Gabcíkovo-Nagymaros Project case, the ICJ

had apparently no difficulty treating the articles on necessity and countermeasures as authoritative. However, in the 1990 Rainbow Warrior Arbitration, the

arbitral panel relied primarily on the ILC’s description of force majeure and distress, but treated its proposal for “state of necessity” as controversial.316

All of these special circumstances precluding wrongfulness may be of potential

relevance to the subject at hand. Thus, Article 34 of the ILC’s draft stipulates that:

The wrongfulness of an act of State not in conformity with an international obligation

of that State is precluded if the act constitutes a lawful measure of self-defence taken in

conformity with the Charter of the United Nations.

As is clear from Article 7 of the Institut’s Helsinki Resolution, a victim of aggression may resort to suspension of treaty relations as a self-defence measure.317

(5) Finally, it is submitted that there is a further possibility that needs to be examined. Article 73 of the 1969 Vienna Convention, as mentioned before, does not

only reserve judgement with regard to the Law of State Responsibility but also to

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questions related to the outbreak of hostilities. This is a renvoi to problems which

have been touched on before, i.e., the implications for treaty law of the rights and

obligations which States derive from the outbreak of hostilities. A related issue is

whether the law on belligerent reprisals may affect the continued operation of a

treaty. All these questions point to the need to examine if there are customary

principles related to the laws of armed conflict that may affect the operation of international environment agreements, and more generally, whether the

implications for treaty law should follow the jus in bello principle of equality of

belligerents durante bello, or the jus ad bellum principle of discrimination between

aggressors and victims instead.

3.5 Conclusions and Introduction to Part Two.

3.5.1 Conclusions to Chapter III

The purpose of this chapter has been to establish legal principles and a methodology to determine the application of IEL in general during armed conflict.

The analysis has led to the following slightly contradictory observations.

First, the 1996 Advisory Opinion of the ICJ indicates that rules devised for the

conduct of belligerent activities operate as lex specialis for questions related to

the interpretation of provisions of general international law, including environmental law, in armed conflict. Furthermore, whilst the Court stated that

environmental concerns form part of the laws of armed conflict, it held that

multilateral environmental agreements cannot be construed so as to deny a

State the fundamental right to use armed force in self-defence.318 This conclusion is supported by the records of 1972 UNCHE and 1992 UNCED.

On the other hand, there is a strong tendency in modern international State

practice, case law, and legal theory towards maintaining the validity of treaties insofar as compatible with national policy and with obligations stemming from

Security Council decisions under Chapter VII.319

In 1993, the ICRC suggested that the following guidelines be included into military manuals:

International environmental agreements and relevant rules of customary law may

continue to be applicable in times of armed conflict to the extent that they are not

inconsistent with the applicable law of armed conflict.

Obligations relating to the protection of the environment towards States not party to

an armed conflict (e.g., neighbouring States) and in relation to areas beyond the

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limits of national jurisdiction (e.g., the High Seas) are not affected by the existence of

the armed conflict to the extent that they are not inconsistent with the applicable law

of armed conflict.320

Clearly, the application of the key criterion of “inconsistency with the applicable law of armed conflict” suggested by the ICRC is no simple matter. The ILC has

carefully avoided studying the problem explicitly in its various codifications of

international law, whilst the Institut has come up with some useful—albeit at

times controversial—principles regarding the legal effects of armed conflict on

treaties in general.

The State practice, case law, and legal theory examined in this chapter has

failed to answer certain pertinent questions. On the assumption that certain principles of IEL in general may continue to be relevant in armed conflict, and that

certain multilateral environmental agreements may continue to apply during

armed conflict, to what extend are contending Parties entitled to deviate from

such obligations on the ground of armed conflict? More specifically, how should

the rights of contending parties be balanced against the enjoyment of

entitlements by non-contending States (and perhaps by international areas as

well) under IEL in general and multilateral environmental agreements in

particular?

This uncertainty may not be surprising given that use of armed force, as

seen in the Second Chapter of this study, raises many difficult legal questions.

When the failings of the collective security system leave the legal position of

States not directly involved in the hostilities unclear, the treaty relations between the latter and the belligerent States will be inevitably affected by the

uncertainty.

Furthermore, one would be hard pressed to generalise rights and obligations

arising from the many environmental treaties in force. It was seen earlier that

there are a great number of treaties from the bilateral to the global level dealing

with a vast array of environmental problems in a variety of media. Some régimes

are very detailed and put in stringent terms, others are obviously more abstract or

exhortatory in character.321

Drawing further on the two main disciplines involved, i.e., the Law of Treaties

and the Law of State Responsibility, it was concluded that each multilateral treaty

needs to be examined separately in order to determine its application to the problem in question.

First, the pactum between contracting States needs to be examined, applying

the relevant articles of the 1969 Vienna Convention on treaty interpretation as

well as the principles of interpretation related to armed conflict examined in this

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chapter. Secondly, provision needs to be made for obligations arising from jus

cogens, humanitarian provisions and binding Security Council decisions. Thirdly,

regard must be had to the grounds of suspension and termination arising from the

Law of Treaties, and fourth, to the “circumstances precluding wrongfulness” arising under the Law of State Responsibility. The final possibility that needs

examining is whether there are any customary rules on the fate of multilateral environmental agreements during armed conflict outside the frames of reference of

the Law of Treaties or the Law of State Responsibility.

3.5.2 Introduction to Part Two

The aim of the second part of this study is to take a closer look at the problem of

the relationship between international armed conflict and multilateral environmental agreements by examining one particular category of maritime agreements.

The reasons why this study concentrates on the marine environment were set

out in the introduction to this study. A series of representative treaties regarding

marine safety and prevention of marine pollution were selected. These cover the

following themes: (1) Safety Aspects and Navigation; (2) (Civil) Liability Conventions; (3) Prevention of Oil Pollution and other forms of Marine Pollution; (4)

Maritime Emergencies.

Three types of basic clauses with a possible bearing on armed conflict will be

examined: (1) Clauses exempting war damage from the scope of the convention;

(2) Clauses dealing with the possibility of war/armed conflict/hostilities and (3)

Clauses dealing with the exemption of warships and other State craft. A chapter

has been devoted to each clause and the analysis will follow the same basic plan.

First, a short justification will be provided for why the selected clause may have a

bearing on armed conflict. This will be followed by an analysis, treaty-by-treaty,

of the negotiating history of the clause and, if possible, by an examination of State

practice, opinio juris, and doctrine where relevant. Finally, for each clause, a conclusion will be formulated on the significance of the absence or presence of the

clause for the relationship between armed conflict and the treaties in question.

Although the majority of the conventions that will be discussed were concluded under IMCO/IMO auspices, others have been concluded under UNEP, IAEA,

the Council of Europe and the UN/ECE. In addition, throughout this study, references will be made to similar clauses contained in other multilateral

environmental agreements. All in all, close to 60 international treaties and instruments will be discussed either directly or indirectly.

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Part Two

Maritime Conventions and Naval War

Chapter IV

The Exclusion of War Damage from the Scope of Maritime Conventions

4.1. General Comments

I

N MATTERS OF LIABILITY AND REPARATION, a distinction is usually made between State and civil liability. Both are legal frameworks for settling issues of

reparation. State liability refers to the duty of States to make reparation for damage caused by a breach of public international law; civil liability, by contrast, is

determined primarily on the basis of private—municipal or international—law.

The treaties reviewed in this section are usually said to regulate matters of civil liability. However, many régimes that will be discussed involve State participation

in one form or another: States may either act as supervisors or guarantors of a particular compensation scheme, contribute to a particular indemnity fund, incur

complementary or residual liability, or may even be liable as principal operators.1

Taken as whole, the liability régimes discussed here are therefore best described

as mixed régimes.

As will be seen below, many—if not all—civil liability conventions exclude

coverage for damage caused by war and other instances of armed conflict. From

an insurance point of view, this may not be surprising, for in commercial law,

damage caused by war is a risk usually excluded from normal coverage by the insurer. Many contemporary standard forms used in the commercial trade exclude

losses caused not only by wars in the traditional sense (classic, declared,

inter-State conflicts), but contain expressions excluding a whole range of other

types of armed conflicts: formulas as “act of war” and “act of public enemies” in

the Hague Rules2 and Hague-Visby Rules; “war, civil war, revolution, rebellion,

insurrection or civil strife arising therefrom, or any hostile act by or against a belligerent power” as in the marine insurance clauses of the Institute Time Clauses
(Hulls) and the Institute Cargo Clauses. The net is cast particularly wide in the

Gencon Charterparty which excludes damage caused by:

. . . any blockade or any action which is announced as a blockade by any Government or

by any belligerent or by any organized body, sabotage, piracy and actual or threatened

war, hostilities, warlike operations, civil war, civil commotion or revo1ution.3

The latter formula makes it absolutely clear that hostilities other than “war” in

the formal legal sense are also intended. This avoids the problems that arose in

Kawasaki Kisen Kabushi Kaisha of Kobe v. Bantham Steamship Co, where the

charterparty contained a clause allowing cancellation “if war breaks out involving

Japan.”4 As indicated earlier, domestic courts and arbitral tribunals tend to construe terms as “war” or “acts of war” in insurance policies broadly, holding that

they apply to undeclared wars,5 and even to actions by resistance or guerrilla

forces.6 The implications of this flexible interpretation may be illustrated with

the case of Dreyfus & Co v. Duncan (Lloyd’s Underwriters) and Another (1981), in

which the Belgian Court of Appeal of Antwerp needed to construe an insurance

policy which expressly excluded “riot, social disorder and malicious damage” but

not war or armed conflict as such. The Court decided that this phraseology applied to the starting of fires and the bomb attacks by rebel troops in the course of

the conflict in East Pakistan in 1971, which ultimately led to the creation of the

State of Bangladesh.7

The underlying idea is that war and other instances of armed conflict are considered an abnormal risk, akin to force majeure, which the insurer should not be

required to bear—8 unless, of course, the client took out special war risk coverage.

4.2. Discussion

4.2.1. Nuclear Industry as Model

• (Paris) OECD Convention on Third Party Liability in the Field of Nuclear Energy, 1960

• Convention on the Liability of Operators of Nuclear Ships, 1962

• (Vienna) Convention on Civil Liability for Nuclear Damage, 1963

• Protocol to Amend the 1963 Vienna Convention, 1997

• Convention on Supplementary Compensation for Nuclear Damage, 1997

Since the beginning of the 1960s, a number of international conventions were

concluded to regulate and channel questions of liability regarding two special

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risk-creating industries: the nuclear industry and the sector of maritime carriage

of oil. The impetus for a civil liability régime for the nuclear sector can be situated

towards the end of the 1950s. It was linked with the fear for potential astronomical

compensation claims for nuclear incidents involving land-based reactors and

transportation of nuclear materials. The nuclear supply industry considered these

risks too incalculable to bear or insure. Since these liability issues could jeopardise the development of a peaceful nuclear energy sector, the OECD governments

decided to intervene.

The first convention in which this was done was the 1960 Paris Convention. It

applies to nuclear incidents within Western European States and establishes an

exclusive non-fault civil liability régime. It completely relieves the nuclear supply

industry and channels all liability, subject to certain ceilings, exclusively to the

operators, who need to cover their liability by compulsory insurance. The 1963

Vienna Convention provides similar solutions but on a more global scale.9 Again

in response to industry demands, two more additional liability layers to the Paris

Convention were subsequently agreed upon. The 1963 Paris Supplementary Convention establishes a second tier of residual State liability as well as a third one,

constituted by a private insurance poo1.10 A Joint Protocol agreed in 1988 between IAEA and the OECD/NEA linked the Vienna and Paris Conventions into one

system.

In 1990, the IAEA Standing Committee on Liability for Nuclear Damage was

set up to revise the Vienna Convention and prepare a supplementary compensation scheme. On 12 September 1997, a Protocol to amend the 1963 Vienna

Convention and a Convention on Supplementary Compensation for Nuclear

Damage were adopted. The new instruments contain, inter alia, a better definition of nuclear damage that also addresses the concept of environmental damage

and includes compensation for preventive and remedial measures.11 In addition, the Convention on Supplementary Compensation applies to nuclear

damage suffered in or above the Exclusive Economic Zones and Continental

shelves of Contracting Parties,12 whilst the Protocol may apply to nuclear damage, “wherever suffered,” including in the territory and any maritime zones

established by a non-Contracting State in accordance with the international law

of the sea.13 As will be seen further below, the two new instruments not only apply to civilian installations, but may cover (military) installations used for

“peaceful purposes.”14

However, none of these nuclear liability instruments cover war damage. Pursuant to an identically worded clause, no liability shall attach to an operator for

nuclear damage caused by a nuclear incident “directly due to an act of armed conflict, hostilities, civil war or insurrection.”15

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The Convention on the Liability of Operators of Nuclear Ships (hereinafter

1962 NS Convention) was adopted at a Diplomatic Conference in Brussels under

the auspices of the Comité Maritime International and IAEA, in 1962. It deals with

questions of liability in much the same way as the above mentioned conventions:

absolute or strict liability of the operator, with ceilings on compensation, and

compulsory insurance. Like the Paris and Vienna Conventions, the 1962 NS Convention was basically forward-looking, concluded mainly to provide a liability

channelling and compensation régime for the potential incalculable claims that

might follow from a nuclear incident.16 As will be discussed below, the main interest of this Convention for this study lies in its explicit inclusion of incidents

involving nuclear warships.17 The reasons why the latter were finally incorporated—after much discussion—were essentially of a pragmatic nature: nuclear

propulsion on ships was at that time still the reserved domain of the military of a

few countries (i.e., the United States and the USSR),18 and it was predicted that

this situation would persist in the near future.19 However, at the Brussels conference, the inclusion of warships led to a heated debate on the corresponding

liability coverage. Several countries, mainly from Eastern Europe, argued that the

liability of the operators of warships— i.e., of the States concerned—needed to be

unlimited. Limiting a State’s liability for incidents involving warships would in

their view legalise the use of nuclear energy for purposes of war.20 Despite these

protestations, the conference let the States off with limited liability for warships

as well (Article III).

Article VIII of the 1962 NS Convention contains a clause which resembles the

exoneration clauses mentioned above, in that it excludes coverage for: “an act of

war, hostilities, civil war or insurrection.” True, the conventions of the Paris and

Vienna group use the expression “act of armed conflict,” which on its own could

be wider than “act of war,” used in the 1962 NS Convention. However, such an interpretation is not certain. Even if the term “act of war” in the latter treaty would

have to be interpreted narrowly as referring only to a state of war in the legal-technical sense, other instances of use of armed force would still be excluded from the

NS convention because of the term “hostilities.”

It seems extraordinary though, that the NS Convention allows even the operators of nuclear warships, i.e., State governments, to take advantage of the

exemption clause for losses caused by war or other forms of hostilities. It

would undoubtedly have been more prudent for the negotiators to include a

“savings clause” to the effect that Article VIII is without prejudice to the rules

of general international law on State responsibility. The issue will probably remain of academic interest only since the convention is unlikely ever to enter

into force.21

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4.2.2. Maritime Carriage of Oil

• International Convention on Civil Liability for Oil Pollution Damage, 1969

• International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage, 1971

Questions of liability and compensation in relation to the sector of maritime

oil transport were brought to the fore at the end of the 1960s. Unlike with the nuclear industry however, it was an actual disaster that became the catalyst for the

negotiation of a special liability régime. Following the 1967 Torrey Canyon incident, IMCO adopted a programme for measures and studies in relation to marine

pollution from maritime casualties. This included for the first time legal measures (1) on intervention on the high seas and (2) on questions relating to the

nature and extent of the liability of the owner/operator of the ship or cargo. Subsequently, at a Conference organised in Brussels, two conventions were

adopted: one on intervention, the other one on civil liability. The 1969 Civil Liability Convention (hereinafter CLC) was soon supplemented by the 1971 IOPC

Fund Convention. Together these conventions provide a liability and compensation scheme for maritime oil transport, inspired largely by the liability

régimes for the nuclear industry. There are, nevertheless, some important differences. The 1969 CLC puts the burden of liability neither on the vessels’

operator nor on the cargo owner, but on the shipowner. Although the latter’s liability is strict, it is limited in most cases according to a formula related to the

tonnage of the ship and an overall total (Article 5). The 1971 Fund Convention’s

stated purpose is to provide additional compensation to the victims of oil pollution. Unlike most schemes in the nuclear energy sector however, States have

been reluctant to shoulder even a part of this burden. The additional layer of

compensation agreed in 1971 is financed by a levy on the oil importers and oil

cargo interests (Article 14).22

According to most commentators, the 1969 CLC already covered environmental damage occurring in the territorial sea of a Contracting Party, including the

cost of preventive measures to minimise such damage.23 Nonetheless, the relevant clauses were given divergent interpretations in practice, both by the IOPC

Fund and by national legal systems. In response to appeals for an internationally

agreed uniform definition, the clauses were revised by two 1984 Protocols.24 The

revised provisions not only increase the level of compensation substantially, they

provide an explicit though narrow definition of environmental damage and extend the scope of the conventions to the Exclusive Economic Zone of contracting

States.25

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The CLC and the IOPC Convention contain in part an identically worded escape

clause for pollution damage “resulting from an act of war, hostilities, civil war and

insurrection.” In both cases the burden of proof rests with the party to which the

main liability has been channelled: either the shipowner or the Fund. In the case

of the CLC, the clause came from an alternative proposal on strict liability of the

shipowner, made by IMCO’S Legal Committee. It was obviously inspired by the liability conventions for the nuclear industry.26 The proposal did not elicit any

substantial comments27 and was accepted almost unaltered, apart from cosmetic

improvements relating to the proposed exclusion for natural disasters.28 The exemption for natural phenomena “of an exceptional, inevitable and irresistible

character” follows immediately on the exclusion for war damage. This indicates

that the conference delegates regarded war and other types of armed conflict as extraneous circumstances, akin to force majeure, which totally escape the shipping

industry’s control.

The basic hypothesis underlying the draft for the 1974 IOPC Convention was

that the Fund (supported by the oil industry) should be able to offer compensation in cases not fully covered by the 1969 CLC: i.e., either if the shipowner is not

liable, or, if he was liable, but neither he nor his insurer were able to meet their obligations, or if the damages exceeded the owner’s liability.29 Yet, no agreement

could be reached on the philosophy or nature of the Fund. As pointed out by one

delegation, the conference remained divided over whether the Fund should provide additional relief to oil pollution victims in all cases where the 1969 CLC

offered compensation or, instead, whether the Fund should be no more than an

insurance policy.30 This ambivalence became apparent when the delegates

clashed over two draft proposals by IMCO: one to exonerate the Fund from liability for oil pollution caused by war and other instances of armed conflict (as in the

1969 CLC); the other to make the Fund bear the risk of damage caused by natural

disasters (unlike in the 1969 CLC).31

The proposal to exonerate the Fund from liability in cases where it could prove

that the pollution damage resulted from an “act of war, hostilities, civil war or insurrection,” was the subject of protest before the conference started.32 It attracted

the most passionate of debates during the conference. Both proponents and opponents of the provision relied on a panoply of arguments allegedly based on the

“legal tradition” in this area, equity, economic principles, philosophical arguments, and even common sense.

The most fervent opponent of IMCO ’s draft proposals was the U.S. delegation.

They proposed the deletion of the war damage exoneration clause arguing that the

fundamental question involved was “whether innocent victims of pollution damage should be denied relief under any circumstances.” During the debates, the

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United States and her supporters (Australia, Canada, Lebanon, Portugal, Singapore, Spain) developed this argument as follows:

• pollution victims should not be made to bear the cost of war damage; this

should be spread over all those benefiting from the oil trade; otherwise the

full cost of such damage would fall on the individual;

• excluding war damage from coverage is particularly unfair in case the victim

is not connected with a belligerent State;

• excluding war damage will lead to much discussion and litigation and will

be subject to varying interpretations;

• the Fund should fill gaps left in the compensation schemes by other conventions and by insurance companies;

• the convention should be forward-looking;33

The proponents (Belgium, Bulgaria, France, Greece, Ireland, Italy, Japan,

Netherlands, Norway, Rumania, UK, USSR) of the exclusion of war damage invoked the following grounds:

• war acts are excluded in other conventions; including it in the Fund Convention would lead to discrepancies;

• war damage is usually not compensated; most insurance companies exclude

war damage for good reasons; there is no reason why victims of oil pollution

caused by war should be placed in a more favourable position; The Fund

should not be a charity;

• not all victims are completely innocent;

• it is up to the States—and hence to the society at large—to pay compensation in cases of war and armed conflict;

• since the Fund is to be financed by the private industry, it should not and

cannot be required to bear this burden; war risk insurance is too costly;

• in case of armed conflict, a large number of oil tankers can be destroyed simultaneously, exceeding the Fund’s capacity to pay;

• dropping of the exoneration clause would require the Fund to deal with a

host of minor incidents, leading to an unacceptable administrative burden;

• if the shipowners are allowed to escape liability in case of war damage, the

oil cargo/importing industry should not be required to provide coverage

either;

• common sense indicates that many States will be deterred from signing the

Convention if war damage is covered; this will impair the financial viability

of the Fund;34

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The latter point of view carried the day. The U.S. proposal was rejected by 25

votes to 10, with 7 abstentions.35

Still, that was not to be the end of the discussion, for the conference remained

in two minds about the ultimate purpose of the Fund. After having excluded war

damage, the delegates broached the issue of natural disasters, which had been exempted previously from the 1969 CLC. The majority of the delegates now thought

that natural disasters presented a different case from war altogether: it was said

that the former did not have their origin in human activity, and the examples

which were brought up during the discussions related to extremely rare occurrences such as “a meteorite hitting a ship.” Greece thought that including natural

disasters would become too onerous. During the debates, similar counter-arguments as in case of war damage were heard: the IOPC Fund Convention should not

put victims of natural disasters in a more favourable position; the conference

should not cause legal discrepancies with other conventions, such as those relating to the nuclear industry and particularly the 1969 CLC; if the shipowner is

exonerated in case of damage by a natural disaster, it would be unjust to require

the oil companies to bear the full weight of this. However, this time the proponents of the widest possible safety and compensation net won the argument. The

Greek position was rejected by 19 votes to 14 with 8 abstentions.36

4.2.3. Maritime Carriage of Nuclear Material

• Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 1971

The Convention Relating to Civil Liability in the Field of Maritime Carriage

of Nuclear Material was adopted at an international conference co-sponsored by

IMCO and the OECD.

37 The need for the convention arose as a result of an apparent

conflict between nuclear law and maritime carriage law. The question had been

studied since 1968 by the European Nuclear Energy Agency of the OECD, by IAEA,

IMCO and the Comité Maritime International. A comprehensive study of the problems followed at a Symposium held in Monaco in 1968.38

The crux of the problem seemed to be that under maritime law, the carrier

could incur liability, whereas the nuclear conventions were based on the no-fault

absolute liability of the nuclear industry and its insurers. Following the limitation of the liability of the operators of nuclear installations under the Paris

Convention and the Vienna Conventions, maritime carriers of nuclear material

began to request indemnity to cover their possible liability. The operators themselves were unable to get insurance for this and even governments were not

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normally prepared to do so. The OECD reported that as a result, the transport by

sea of nuclear substances had come practically to a standstill. Unless either a warship could be made available or a government indemnity could be given,

transport had instead to be done by air at a greater expense, and this was only possible because the air carriers did not consider it necessary to demand indemnities

at all and were content to rely on the operator’s insurance.39

The 1971 Convention gives primacy to the nuclear law and ensures that the operator of a nuclear installation will be exclusively liable for damage caused by a

nuclear incident occurring in the course of maritime carriage of nuclear

material40 unless the damage is caused by a nuclear incident involving the nuclear

fuel or radioactive products or waste produced in the ship.41

The 1971 Convention does not contain an express clause relating to damage

caused by acts of armed conflict. But this should not to be taken as proof that exoneration for such damage would not be available. Indeed, from the text of the

convention it is clear that its rules rely primarily on the liability régimes of the

nuclear industry.42 Moreover, according to Article 4, the convention supersedes

any international conventions in the field of maritime transport to the extent that

such conventions would be in conflict with it. Any defence available under the

nuclear liability régimes will therefore apply to the maritime carriage of nuclear

material as well.

4.2.4. Maritime Carriage of Hazardous and Noxious Substances

• Convention on Liability and Compensation for Damage in Connection with the

Carriage of Hazardous and Noxious Substances by Sea (HNS), 1996

The plan for a Hazardous and Noxious Substances (HNS) Convention has

been with IMCO/IMO since the mid-1970s. It was at its 29th session in 1976 that

the Legal Committee concluded that it would be desirable to have a new comprehensive international convention dealing with liability for maritime

carriage of substances other than oil.43 Over the years this proposal ran into

many difficulties. The draft was unsuccessfully placed on the agenda of the 1984

International Conference on Liability and Compensation for Damage in

connexion with the Carriage of Certain Substances by Sea.44 Afterwards the IMO

Secretary-General reported that there remained substantial differences of opinion on (1) the geographical scope of the convention; (2) the scope of application

in respect of the risks and damage to be covered; (3) the party to be held liable

under the convention; (4) the limits of liability to be placed on the party liable;

and even on (5) the necessity itself for an international convention on liability

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and compensation of HNS.

45 It is a testimony to the Legal Committee’s tenacity

that agreement was reached after all. The HNS Convention was adopted on 3

May 1996.46

The final text of the convention is based on substantially remodelled proposals

discussed within the Legal Committee during the second half of the 1980s. It

combines elements of both the 1969 CLC and the 1971 IOPC Fund Convention.47

For instance, it takes inspiration from the 1969 CLC in channelling liability essentially to the shipowner, adopting a strict but mostly limited liability approach and

requiring compulsory insurance; it also adopts many elements of the IOPC Convention in that it proposes, inter alia, the establishment of a special Hazardous and

Noxious Substances Fund (HNS Fund) to provide compensation in addition to

the required compulsory insurance.

The first draft articles for the Convention were prepared by an informal

Working Group, which presented the Legal Committee at its 37th session in

1978 with several alternatives. Alternative I of that proposal channelled the

main liability to the shipowner and followed closely the basic rules on liability

and the various defences contained in the 1969 CLC. It copied the CLC’s war

damage exclusion clause verbatim.

48 The only time this article elicited comments was in 1978, when a member of the Legal Committee questioned

whether the exclusion of liability in the case of a natural phenomenon was not

too wide. In reply, it was recalled that this had been extensively discussed at

the 1969 Brussels Conference and that it was generally agreed that the exception was much narrower than an act of God, since it required that the

phenomenon be “of an exceptional, inevitable and irresistible character.” Nevertheless, it was suggested that this exception might be further restricted if

feasible from an insurance standpoint.49

During the many versions the HNS proposal went through subsequently, the

war damage exclusion clause remained unchanged and unchallenged. In a similar vein, the provision to exonerate the HNS Fund for war damage in the last

draft (Article 14(3)) was copied directly from the IOPC Fund Convention’s Article 4(2). It did not attract a single comment. In the final version of the HNS

Convention, adopted on 3 May 1996, the exoneration clauses for the shipowner

and for the Fund can be found in Articles 7(2)(a) and 14(3)(a) respectively. The

final HNS Convention follows the solution of the CLC and the IOPC Fund not only

in spirit but also to the letter: the shipowner is allowed an escape clause not only

in case of damage caused by waretc., but also in case he proves that the damage was

caused by a natural phenomenon of an exceptional, inevitable and irresistible

character. The HNS Fund, however, needs to provide coverage in the latter

event.

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4.2.5. Draft Convention on Wreck Removal

Draft Convention on Wreck Removal, 1995

At its 69th session in 1993, the IMO Legal Committee considered a request for

an international convention to establish uniform rules on wreck removal in international waters. According to its promoters,50 the convention would have to be

consistent with coastal States’ powers under the 1982 LOSC, but would fill the gaps

in the existing international law.51 Since 1993, preliminary drafts for such a convention have been submitted by Germany, the Netherlands, and the UK.

Consideration of the draft was included in the Committee’s work programme for

1996–1997.52

According to the 1995 draft, shipowners would be held strictly liable for the

costs of locating, marking and removing of hazardous wrecks.53 However, under

proposed Article VIII (l)(a), shipowners would be able to escape their liability if

they could prove, inter alia, that the casualty resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable,

and irresistible character.54 The proposed war damage exoneration clause was

copied from the 1969 CLC Article III (2).

4.3. Conclusions to Chapter IV

Recent data demonstrate that the 100 States party to the 1969 CLC represent

88.55 percent of world tonnage. The 1971 Fund Convention has attracted 76

ratifications representing 62.03 percent of world tonnage, whilst the 1971 Convention concerning maritime carriage of nuclear liability is decidedly less

popular: it has only 14 parties representing 23.01 percent of world tonnage.55

Regardless of whether the 1984 protocols to the 1969 CLC and the 1971 IOPCwill

enter into force one day,56 marine pollution and related damage to the environment caused by belligerents during armed conflict, are not covered. The

exoneration clauses for war damage incorporated in both these conventions and

the extensive debates held on the issue during the 1971 Conference leave no doubt

that victims of oil pollution damage in instances, such as the 1983 Nowruz and the

1991 Gulf War oil “spills,” will have to look elsewhere for compensation.

This will be the case, moreover, irrespective of whether the conflict is international or internal, or one waged by a National Liberation Movement, whether it is

small-scale or large-scale, a declared or undeclared war, and regardless of the precise military circumstances in which the marine pollution was caused.

Furthermore, the exoneration clause holds good irrespective of whether the

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belligerent responsible for the pollution resorted to armed force on lawful jus ad

bellum grounds (e.g., in self-defence or in execution of a UN Security Council resolution taken under Chapter VII) or not and regardless of whether the damage to

the marine environment was caused as a consequence of actions permissible under the jus in bello or not.

The same observations apply, mutatis mutandis, to the nuclear liability conventions of the Paris and Vienna group. It is too early to say whether the war damage

exoneration clause currently incorporated in the draft on Wreck Removal will remain unchallenged. However, it would come as a surprise if this clause were

dropped or even substantially modified.

There is a firm legal tradition of excluding war damage from “civil” liability

conventions dealing with various risk-creating activities. Apart from the discussed conventions on maritime transport of oil and nuclear liability

conventions, one can find a war damage exoneration clause—identical to Article II (2) of 1969 CLC—in the 1977 Convention dealing with the exploration

and exploitation of seabed mineral resources57 and in the 1989 UN/ECE Convention on Civil Liability for Damage Caused During Carriage of Dangerous

Goods by Road, Rail and Inland Navigation Vessels (CRTD Convention).58

This defence has even been incorporated in the 1993 Council of Europe’s

Lugano Convention, which regulates civil liability for damage resulting from

all activities dangerous to the environment.59 Since the majority of these

clauses are, moreover, worded in identical terms, one can truly speak of a

“standard war damage exoneration clause” in State and treaty practice. This

practice was confirmed once more in the three recently adopted civil liability

instruments discussed in this chapter: the 1996 HNS Convention concluded

under IMO auspices and the two new instruments on civil liability concluded

in 1997 under IAEA auspices.

Given this legal tradition, it is perhaps not surprising that, as noted earlier,60 the

ILC has excluded war damage from its work on State liability for acts not prohibited

by international law.61 Special Rapporteur Mr. Julio Barboza justified this proposal

on the ground that such an exoneration clause is often contained in civil liability

conventions. The text of the suggested provision reads in relevant part:

(1) The operator shall not be liable: (a) If the harm was directly attributable to an act

of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional,

inevitable and irresistible character. . . .

Although not fully spelled out in the above conference records, there are fundamental reasons why, e.g., the owners or operators of ships should not be

required to bear the costs of damage resulting from armed conflict.

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It was seen that the United States argued strongly in favour of war damage coverage by the IOPC Fund. She pleaded that the burden of oil pollution caused in the

course of armed conflict should not be borne by innocent victims, but that it

should rest instead with the private industry and with the countries profiting

from maritime carriage of oil. These views were rejected by the majority, who believed that there were good reasons for the exclusion of war damage by insurers,

that the IOPC Fund was not a charity, and that it was up to the State to pay compensation in case of war or armed conflict.62

It is submitted that there remains a fundamental distinction between damage

caused in the normal course of shipping operations, and damage caused by acts of

warfare. Leaving the question of force majeure and natural disasters aside, in the

first case, the ensuing damage is caused by acts not intended to inflict damage. In

such a case, there is much to be said for making the industry bear the brunt of the

cost of risks associated with their profit-making activities, regardless of the precise cause of the damage.

By contrast, war damage to ships is the result of deliberate acts by belligerents

who are determined to inflict damage on the adversary, either directly or indirectly. As seen before, general IEL does not cover the hypothesis of the intentional

infliction of damage by States.63 It is one thing to ask the operators or owners of

ships to act as insurer for risks associated with maritime carriage of environmentally hazardous materials, such as nuclear substances and oil. It is quite another to

ask the industry to act as insurer for the entire world, including for extraneous

acts by belligerents during armed conflict. Environmental damage caused by acts

of warfare are not meant to be addressed by civil liability or mixed State/civil liability régimes. Under current international law, they are, however, addressed by

the general rules of State responsibility, which were discussed above, in Chapter

Two.64

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Chapter V

Contingency Clauses for Armed Conflict in Maritime Treaties

5.1. General Comments

I

T WAS SEEN THAT TO EXAMINE THE POSSIBLE EFFECT of a particular multilateral environmental agreement in armed conflict, the exact terms of the pactum

between parties would need to be established first. If there is an express clause

permitting suspension, withdrawal, modification or termination of the treaty in

case of war or other armed conflict, it should be possible to determine the drafters’

intentions without difficulty. Absent such a clause, recourse must be had to the

general rules of treaty interpretation in addition to the principles examined

above, which relate specifically to armed conflict.1

There exists, as seen before, broad consensus on the fact that the majority of

multilateral environmental agreements are silent on the question of their effect

during war or armed conflict. However, whilst some regard this as evidence that the

agreements continue to apply, others believe that this proves that they were not designed for this purpose.2 These assertions will be critically tested in this chapter

through an analysis of a series of maritime safety and pollution prevention conventions. Some of these treaties contain clauses dealing expressly with the possibility of

war, armed conflict and other types of hostilities, whilst others do not.

5.2. Discussion

5.2.1. The Salvage Conventions

• Convention for the Unification of Certain Rules of Law relating to Assistance

and Salvage at Sea, 1910
• International Convention for the Unification of Certain Rules relating to Assistance and Salvage of Aircraft or by Aircraft at Sea, 1938

• International Convention on Salvage, 1989

A. The 1910 Salvage Convention. The original Salvage Convention was

signed on 23 September 1910. It entered into force on 1 March 1913, on the

eve of the outbreak of World War I, for the following countries: Austria, Belgium, France, Germany, the Netherlands, Romania, Russia, the UK and the

USA.3 The provision of most interest to this chapter is Article 11, according

to which every shipmaster is bound to render assistance to everybody, even

though an enemy, found at sea in danger of being lost, to the extent that he can

do so without serious risk to his ship, crew, or passengers.4 According to an

American commentator, the nature of the treaty, and particularly Article 11,

demonstrated “the manifest intention that it (the treaty) should be operative

in war as well as peace.”5 In support of this interpretation, reference was

made to two municipal cases, of 1948 and 1950 respectively, in which American courts assumed that the convention remained in force after the outbreak

of World War II.6

However, it is unlikely that the 1910 Convention was designed to apply unabridged during inter-State armed conflict. The 1910 Convention was

intended to regulate matters of private maritime law, and did not apply to warships (Article 14). During both World War I and II, most merchant ships

belonging to belligerent countries came under the government control.7 Presumably therefore, the instances in which the convention was applied during

those armed conflicts must have been sharply reduced. Furthermore, the two

U.S. court cases dealt only with the application of the convention between

friendly or co-belligerent countries. The 1950 case for instance, was about assistance rendered in 1943 by a UK to a U.S. vessel. There seems to be no case

law on the application of the 1910 Salvage Convention between countries

which are enemies.

After World War I, the 1910 Salvage Convention was among the multilateral treaties of “an economic and technical nature” enumerated in Article 282

of the Versailles Peace Treaty “to be applied” from the coming into force of the

Treaty. But, as mentioned before, the formulation of that article does not permit to say anything definite about the status of the Salvage Convention during

the war between opposing belligerents. In similar vein, after World War II, the

United States notified Germany of its desire to have the convention of 1910

“placed in effect” between the United States and Germany. Significantly, this

was accompanied by a statement that the notice was:

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“. . . without prejudice to the previous status of any portion of the convention which may have

remained operative or may have again become operative at any time since the outbreak of

hostilities between the United States and Germany.”8

This purposely ambiguous statement proves at a minimum that the U.S. administration was uncertain about the legal status of this pre-war convention

during and immediately after World War II, at least insofar as its relations with a

(former) enemy were concerned.

It may indeed have been the case that the 1910 Salvage Convention remained in

force between neutral and other mutually friendly countries during both world

conflicts. However, it is submitted that it is very unlikely that the Convention continued to apply between opposing belligerents, in spite of the wording of Article 11.

This is supported by the explanation given by a commentator who examined

the travaux préparatoires of the above convention extensively. “Wildeboer believes

that the addition of ‘même ennemie’ simply referred to the possibility that the

contracting States might be at war with each other; that in that case the convention would no longer be applicable between the parties at war; but that since

Article 11 rested on a moral obligation not dependent upon the question who is

the person in danger or to which state he belongs, it was intended to make an exception.”9

That this is a more likely interpretation is confirmed by the 1911 UK Maritime

Conventions Act implementing the Salvage Convention. Article 6 of this Act obligates every shipmaster to render assistance to everybody, even though an

enemy, found at sea in danger of being lost, and stresses that this holds “. . . even if

such person be a subject of a foreign State at war with his Majesty.”

Finally, a further clarification of the exact meaning and scope of Article 11

came with the 1967 Protocol to the 1910 Convention. The purpose of this protocol

was to extend the application of the 1910 Convention to ships of war and other

State-owned ships.10 However, each Party to the Protocol was given the right to

determine for itself whether and to what extent Article 11 of the 1910 Convention

would apply State-owned ships.11 If nothing else, the 1967 Protocol confirms that

Article 11 has no bearing on the status of the 1910 Convention in times of war.

Therefore, the import of “même ennemie” in the 1910 Convention seems to have

been limited to the (moral) obligation to render assistance, an obligation that remained even between nationals of States at war with each other.

The above conclusions are entirely compatible with the law of naval warfare,

which contains detailed regulations on the obligation to search for casualties after

naval engagements. Hague Convention (X) of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention requires belligerents to

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“take steps to look for the shipwrecked,” after each engagement, “so far as military

interests permit.”12 This obligation is addressed more stringently in Geneva Convention (II) of 1949 for the Amelioration of the Condition of Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea. Article 18 of the latter no longer

refers to military interests, and obligates Parties to act without delay:

After each engagement, Parties to the conflict shall, without delay, take all possible

measures to search for and collect the shipwrecked, wounded and sick, to protect

them against pillage and ill-treatment, to ensure their adequate care, and to search

for the dead and prevent their being despoiled.

Whenever circumstances permit, the Parties to the conflict shall conclude local

arrangements for the removal of the wounded and sick by sea from a besieged or

encircled area and for the passage of medical and religious personnel and equipment

on their way to that area.

The ICRC commentary to this provision refers explicitly to Article 11 of the

1910 Salvage Convention and emphasises that there is a general obligation under

international law to search for and collect victims, whether military or civilian, of

any incident occurring at sea.13 Similarly, Additional Protocol I of 1977 enunciates a general obligation to respect and protect the shipwrecked.14

Given the above, the International Convention on Assistance and Salvage of

Aircraft or by Aircraft at Sea of 1938, could be judged as a step back for it does not

contain the addition that the obligation to render assistance holds good, even if

the person in danger belongs to an enemy country.15 However, since that convention never entered into force, it would be futile to speculate on its wartime status.

B. The 1989 Salvage Convention. The 1989 Salvage Convention was concluded under IMO auspices, mainly in response to increasing environmental

concerns. The 1910 Convention incorporates the “no cure, no pay” principle, giving little incentive to a salvor to undertake an operation which has only a slight

chance of success and little reward for attempts to prevent or minimise environmental damage. The 1989 Convention seeks to remedy this by providing for an

enhanced salvage award, taking into account efforts to prevent or minimise damage to the environment. Article 1(d) defines environmental damage as:

“. . . substantial physical damage to human health or to marine life or resources in

coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents.”

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Whilst Article 14 introduces “special compensation” for salvors who fail to earn a

reward in the normal way (i.e., by salving the ship and the cargo).

There is no clause in the 1989 Convention that deals expressly with the contingency of war/armed conflict. Article 10, on the “Duty to render assistance,” much

like the above 1938 Convention, does not include a reference to enemy nationals.

Still, there are several other articles that have military implications and that may

have a bearing on armed conflict: Article 4 on State-owned vessels, Article 25 on

State-owned cargoes, and Article 26 on Humanitarian cargoes. All of these will be

discussed in the next chapter.16

5.2.2. The Load Lines Conventions

• International Convention respecting Load Lines, 1930

• International Convention on Load Lines, 1966

A. The 1930 Load Lines Convention. It has long been recognised that limitations on the draught to which ships may be loaded make a significant

contribution to the safety of life and property at sea. The first International Convention on Load Lines, adopted on 1 January 1930, established uniform principles

and rules on the basis of reserve buoyancy. Its successor convention, adopted on 5

April 1966 underIMCO auspices, sets limits in the form of freeboards, which constitute, besides external weathertight and watertight integrity, the main objective of

the convention. Its regulations take into account the potential hazards present in

different zones and different seasons. The technical annex contains several additional safety measures concerning doors, freeing ports, hatchways and other items.

The main purpose of these measures is to ensure the watertight integrity of ships’

hulls below the freeboard deck. All assigned load lines must be marked amidships

on each side of the ship, together with the deck line.17

The 1930 Convention contained provisions for its modification and revision

(Article 20) and provided for the possibility of denunciation after the expiration

of a five-year period from its coming into force (Article 25). It did not provide for

the possibility of suspension. However, the 1966 Convention contains an express

clause on “suspension, in case of war or other extraordinary circumstances” (Article 31). The travaux preparatoires of the latter Convention show that this was done

at the initiative of the United States, with the express intent of legalising unilateral measures taken in 1941 concerning the 1930 Convention.18

As is well known, in 1941, two years after the outbreak of World War II in Europe, the United States was still formally a neutral country,19 in spite of being

heavily engaged in supplying friendly belligerents with war materials. It was

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particularly the increased demand for oil that made it desirable for the United

States to increase the amount she was allowed to carry in her tankers over the limits allowed by the 1930 Load Lines Convention.20 The United States discussed

the matter with other State parties to the Convention—including the UK—but

there was disagreement on the course to follow.

The UK—which was at that time involved in World War II as a belligerent—thought that the convention was essentially a peacetime agreement and that

it should be regarded as inoperative during war. She proposed that the convention

be modified in common agreement so as to permit deeper loading of vessels. The

United States argued, however, that no modification or revision was necessary, on

the ground that the convention could be regarded as suspended on the basis of the

legal theory of rebus sic stantibus (changed circumstances).

The American standpoint was based on a legal opinion sought from Acting Attorney General Biddle.21 The latter reasoned in substance that the Load Lines

Convention was a peacetime agreement, that peacetime commerce was a basic assumption of the treaty, and that the prevailing situation with respect to shipping

was wholly different: of the 36 parties to the treaty, 10 were at war, and 16 were under military occupation. Moreover, the actual destruction of merchant ships,

however loaded, had become a major war strategy. His opinion concluded as

follows:

Under these circumstances there is no doubt in my mind that the convention has ceased to be

binding upon the United States. It is a well-established principle of international law, rebus

sic stantibus, that a treaty ceases to be binding when the basic conditions upon which it was

founded have essentially changed. Suspension of the convention in such circumstances is the

unquestioned right of a state adversely affected by such essential change.

In a direct reference to the UK’s position, he further admitted that:

. . . it may well be that ordinarily the procedure would call for the government to inform the

other parties to the treaty with respect to the matter and request agreement for termination or

suspension of the treaty. The matter of procedure, however, does not affect the right of

termination or suspension.22

In his opinion, it was not necessary either to denounce the treaty under Article

25 or to have it otherwise abrogated. Following this advice, President Roosevelt

issued a presidential proclamation on 9 August 1941, based explicitly on the rebus

sic stantibus theory. The proclamation referred, inter alia, to the fact that the conditions envisaged by the Convention had been for the time being almost wholly

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destroyed, that the partial and imperfect enforcement of the Convention could

operate only to prejudice the “victims of aggression,” and that:

. . . under approved principles of international law it has become, by reason of such changed

conditions, the right of the United States to declare the Convention suspended and

inoperative.23

The reaction of other parties to the treaty can be called one of general acquiescence. No State seems ever to have protested against this unilateral suspension; the

eight American States which were parties to the Convention gave their express assent thereto, and even the UK accepted the U.S. action in a diplomatic note.24

During the war, several States followed the U.S. example and unilaterally suspended the convention.25 After the war, the proclamation of 9 August 1941 was

revoked by presidential proclamation of 21 December 1945, effective 1 January

1946.26

B. The 1966 Load Lines Convention. The above event represents an important piece of State practice and opinio juris on the legal effect of armed conflict on

multilateral treaties; not in the least since it constitutes one of the best documented episodes in which a (formally) neutral State, upon the outbreak of armed

conflict between other contracting parties to a multilateral treaty, decided to suspend the operation of that treaty unilaterally. In the light of this, the discussions

held in 1966 for the revision of the 1930 Convention carry particular interest. The

draft suspension clause proposed by the United States was identical to Article VI

of the International Convention for the Safety of Life at Sea, 1960, which, as will

be seen below, had itself given rise to serious controversy.27

The proposed new Article 5 on suspension in case of war, read in substantial

part as follows:

(a) In case of war or other hostilities, a contracting Government which considers that it is

affected, whether as a belligerent or as a neutral may suspend the operation of the whole or

any part of the Regulations annexed hereto. The suspending Government shall

immediately give notice of any suspension to the Organization; (b) Such suspension

shall not deprive other Contracting Governments of any right of control under the

present Convention over the ships of the suspending Government when such ships

are within their ports; (c) The suspending Government may at any time terminate

such suspension and shall immediately give notice of such termination to the

Organisation; (d) The Organization shall notify all Contracting Governments of any

suspension or termination of suspension under this Article. (Italics added.)

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The reactions of other governments to the U.S. proposal can be summarised as

follows. France argued that the clause should not be adopted, for three reasons:

(1) The entire article appeared unnecessary, “as it is always open to a Government,

in case of war, to denounce a Convention”; (2) The use of terms such as “war” and

“hostilities” rendered the clause too vague; (3) By granting other governments a

right of control in subparagraph b, the entire proposal was internally contradictory. 28

The USSR, Yugoslavia, and Bulgaria also argued in favour of deletion of the

American amendment, but for more legal or ideological reasons. Their delegates

insisted that the draft clause was incompatible with the precepts and the spirit of

the UN Charter, and in particular, that it was contrary to Article 2(4) of the Charter.29 The United States replied that its proposal:

. . . would enable governments to take such immediate measures as were necessary in case of

hostilities and in the interests of national security it would seem indispensable.

This view was supported by Western States including the UK, Norway, Canada, Greece, and by Argentina, China (Taiwan) and Liberia.30

When the proposal for deletion of the draft provision was overwhelmingly rejected in the General Committee, the USSR and Poland tried another strategy. They

introduced an amendment aimed at bringing the suspension provision more in line

with what they considered to be the spirit and purpose of the Convention as well as

the UN Charter. They suggested to replace the expression “In case of war or other hostilities” used in subparagraph (a) of the suspension clause proposed by the United States,

with the following: “In case of an armed attack or in extraordinary circumstances, which

affect the vital interests of the State of any Contracting Government. . . .”31

With the United States and other governments willing to compromise, this Soviet-Polish proposal became the basis of the text which was finally agreed by the

1966 Conference. The text of the final provision retained the procedural requirements of the above-mentioned U.S. proposal, but changed the substantive

requirement.32 Article 31 (1) now reads:

In case of hostilities or other extraordinary circumstances which affect the vital interests of a

State the Government of which is a Contracting Government, that Government may

suspend the operation of the whole or any part of the present Convention. The

suspending Government shall immediately give notice to any such suspension to the

Organization. (Italics added.)

This end result represents a substantial update of the suspension clause initially proposed by the United States, in several respects:

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1. It no longer uses the terms “war,” “belligerent” or “neutral.” While the USSR

appears to have been successful in convincing other delegates that such terms

would sit uncomfortably with the UN Charter, the conference nonetheless declined to adopt either the expression “armed attack” or “armed conflict.” The

latter would have been more in accordance, respectively, with the jus ad bellum terminology employed in the Charter and with the current jus in bello terminology.

2. The conference decided instead on the expression “hostilities or other extraordinary circumstances,” which is much less precise a definition of the circumstances

in which State parties may decide to suspend the convention. The licence given for

auto-determination of the case for suspension of the convention is therefore

wider than would have followed from use of the term “war or other hostilities.”

One cannot help but doubt whether this was an outcome which the USSR and Poland had intended.

3. The previous observation is only partly tempered by the additional requirement that the circumstances must affect the “vital interests” of a State. It is far from

certain for instance, whether other contracting parties would be entitled to dispute

a party’s decision to suspend. The only course of action open to other contracting

parties under the treaty seems to lie on the diplomatic level. Subparagraphs (3) and

(4) of Article 31 might facilitate such diplomatic discourse, but these are provisions

of a mere procedural nature which do not affect a State’s substantive right of decision to suspend.33

4. The provision of subparagraph (2) can indeed be regarded as a moderating

element. Accordingly, suspension by one State party of its obligations under the

convention does not affect the right of other State parties to continue to exercise

control in their ports over ships registered with the suspending State. This provision was borrowed from the Safety Conventions and will be discussed below.34

Although the above events took place when the United States was not yet an official belligerent in the War, it is difficult to deny that rebus sic stantibus was

invoked in connection with international armed conflict between a third State

and a belligerent. It was suggested before that historically, the rule of rebus sic

stantibus was developed to deal with peaceful change.35 The Load Lines episode

seems to contradict this. However, it is submitted that the circumstances in which

the rule was invoked here were unique, and that the ensuing suspension clause

does not meet the substantive and procedural requirements that current international law attaches to the rebus sic stantibus plea under the law of treaties.

First, Article 62 of the 1969 Vienna Convention on the Law of Treaties, which

represents largely customary international law,36 lays down strict substantive requirements for the plea of “fundamental change of circumstances.” Subparagraph

(1) requires a heavy burden of proof: the circumstances must not only have been

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unforeseen, the original circumstances must have constituted an essential basis of

the consent of the parties to be bound by the treaty, and the effect of the change is

to radically transform the extent of obligations still to be performed under the

treaty.37 Thus formulated, it seems debatable whether the circumstances which the

United States invoked in 1941 meet these demands. The Presidential proclamation

did attempt to demonstrate that “peacetime commerce” was a basic assumption of the

1930 Convention, and that the war had radically altered this assumption. Nevertheless, it seems that the prime purpose of the 1930 Convention was to deal with safety

regulations of ships, which the United States subsequently found burdensome or inconvenient to her activities as (qualified) neutral in the conflict.

Even if the U.S. standpoint would be correct, the ICJ’s judgments in the 1973

Fisheries Jurisdiction and 1997 Gabcíkovo-Nagymaros Project cases demonstrate that

the party invoking a plea of changed circumstances is not the sole judge of its merits.38 Although the 1966 Convention suspension clause does not exclude judicial

review, the wording of the substantive requirement39 and the lack of substantive

say which other treaty Parties are accorded40 do seem to imply that the suspending State is given a much larger measure of discretion than allowed by the modern

plea. The latter point is confirmed by the fact that under the 1966 Convention,

States are allowed to decide whether they shall suspend the convention as a whole,

or only in part, whilst Article 62 of the Vienna Convention deals with reasons for

withdrawing from a treaty, terminating it or suspending its operation as a whole.

Furthermore, Article 31 (3) of the 1966 Convention gives States the discretion not

only as to when to suspend but also as to when to terminate the suspension.41

Furthermore, the modern version of the rebus sic stantibus theory attaches specific procedural requirements to all cases of termination and suspension:

notification to the other treaty Parties, the right of other Parties to formulate objections, peaceful settlement of any disputes, and the expiry of a period of not less

than three months before the suspension or termination can take place in case no

objections are formulated.42 While it is not excluded that all these conditions

could apply between belligerents and third Parties, the suspension clause which

was included in the 1966 Convention indicates that the treaty Parties wished to

grant each other as little substantive say as possible with respect to suspension

based on armed conflict.

The preliminary conclusion, based on the legal history of the 1966 Load Lines

Convention, is that the suspension clause which the treaty parties decided on, and

which applies between belligerents and third States, does not meet the standards

of the modern plea of fundamental change of circumstances.

Finally, it is submitted that modern requirements of the plea make it unlikely

that it can ever be used as a ground to suspend or terminate treaties between

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belligerents on the basis of the existence of armed conflict alone. It was seen earlier that reliance on this defence in the case of armed conflict is not as such

excluded by the 1969 Vienna Convention.43 However, the plea’s specific procedural requirements—notification, period for the formulation of objections

etc.—are unsuitable for application between belligerents. Furthermore, Article

62(2) of the 1969 Vienna Convention excludes the plea of changed circumstances

in two cases that seem to bar application in armed conflict: in case (a) the treaty

establishes a boundary; or (b) if the fundamental change is the result of a breach

by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. The first

subparagraph means that the plea cannot be relied on by belligerents fighting

over a boundary treaty. The second subparagraph implies that at least “illegal aggressors” would not be allowed to take advantage of this defence.

5.2.3. The Safety Conventions

• Convention for the Safety of Life at Sea, 1914

• International Convention for the Safety of Life at Sea, 1929

• International Convention for the Safety of Life at Sea, 1948

• International Convention for the Safety of Life at Sea, 1960

• Convention for the Safety of Life at Sea (SOLAS), 1974

The Safety Conventions in their successive forms are generally regarded as the

most important of all international treaties concerning the safety of primarily

merchant ships. The first version was adopted in 1914, the second in 1929, and the

third in 1948. The 1960 Convention was the first major task for IMCO after its creation, and it represented a considerable step forward in modernising regulations

and in keeping pace with technical developments in the shipping industry. The

intention was to keep the convention up-to-date by periodic amendments, but in

practice the amendments procedure proved to be too slow. A completely new convention was adopted in 1974—the Convention for the Safety of Life at Sea

(SOLAS).44

A. The 1914 Safety Convention. The 1914 Safety Convention was concluded as a direct international response to the 1912 Titanic disaster, one of the

worst maritime accidents in history. Its provisions included safety precautions for

ice and other derelicts floating in the sea, rules on radio-telegraph installations

and signalling lamps, and led to the set-up of the first international ice patro1.45

The 1914 Convention was concluded on the eve of World War I. Although it did

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provide for emergency situations such as “stress of weather” and other instances

of force majeure, 46 it was meant to apply to merchant ships only47 and contained

no provisions on war.

The global conflict of World War I, which eventually involved 32 nations, had a

major effect on the treaty. Article 69 of the treaty provided for its entry into force on 1

July 1915, but because of the 1914–1918 conflict, this never materialised.48 Unlike the

1910 Salvage Convention, the 1914 Safety Convention was consequently not listed

among the “multilateral treaties, conventions and agreements of an economic or

technical character” to be “applied” between defeated Germany and the Allied and

Associated Powers in accordance with Article 282 of the Versailles Peace Treaty.49

B. The 1929 Safety Convention. It was only 11 years after the end of World

War I that a second international conference on the Safety of Life at Sea could be

convened. The conference produced a revised version of the 1914 Convention and

also recommended changes to the International Collision Regulations (hereinafter

COLREGS).50 The UK government was charged with obtaining the necessary international agreements to modify the latter.51 Other than that, the 1929 Conference

did not entail any major innovations in the general provisions of the 1914 Convention. More in particular, no clause was inserted to deal with the effects of war. This

may not be surprising, since, after all, the 1914 Convention never entered into force,

and the issue of the legal effect of war on the execution of that treaty never arose.

The 1929 Safety Convention entered into force on 1 January 1933 and was ratified by 35 governments.52 According to some accounts, the convention continued

to remain in force during World War II. Thus, McIntyre refers to various domestic implementation measures taken by the United States during the war.53

However, from the documents that will be discussed immediately below, it is

clear that if the 1929 Safety Convention was applied during World War II, it was

certainly not in “unabridged” form.

C. The 1948 Safety Convention. After World War II, a third International

Safety Conference was convened in London. It led to a substantially revised

Safety Convention and to a renewed proposal for amendments to the COLREGS.

World War II had at least one clear negative effect on the execution of the 1929

Convention: it prevented the UK government from carrying out the mandate received in the 1929 Convention regarding the revision of the COLREGS.54 The

influence of World War II was also apparent from three further questions which

the conference tackled: an explicit provision on the effect of war on the treaty, an

exemption for humanitarian evacuations, and a resolution extending a temporary

waiver for “the situation created by the Second World War.”

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During the 1948 Safety Conference, the United States proposed an elaborate

new provision for the contingency of war. The new article would allow contracting governments, in case of war, if they consider that they are affected, whether as

belligerents or as neutrals, to suspend the convention as a whole or in part and

also allow exemptions for humanitarian reasons.55

What is more, early on the conference delegates agreed to adopt a resolution

on the “Situation created by the Second Word War.”56 In the final act, the title

of the proposed resolution was changed to “Carriage of Passengers in Excess of

Convention Limits.” The substantive part of the Resolution (No. 1) itself was

never challenged and read in its final version as follows:

The International Conference on Safety of Life at Sea, 1948

RECOGNISING,

That as a consequence of the situation created by the second World War the number

of passengers needing to be carried by sea at the present time is still considerately

greater than the passenger accommodation available, and that a number of

Governments signatory to the International Convention for the Safety of Life at Sea

signed in London on May 31st, 1929, have accordingly been obliged to allow

passengers to be carried in their ships in excess of the limits allowed by that

Convention

RESOLVES,

That Governments should each bring their practice into conformity with the

provisions of the said Convention as soon as practicable, and in any event not later

than the 31st day of December, 1950.57

What motivated these two major innovations—one permanent (suspension/exemption clause) and one temporary (Resolution 1)—were the

problems with execution experienced by many States during the past war.

During the 1948 Conference, many governments confessed to having been

unable to fully abide by the provisions of the 1929 Convention due to the necessities of war:

• The United States admitted that it had tried in vain to obtain the agreement

of other contracting Parties on the suspension by the United States of certain provisions; 58

• The UK explained that the draft resolution on the circumstances created by

the second World War “. . . dealt with a situation which had been forced

upon the UK government and others”;59

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• France also admitted to having suspended part of the 1929 Convention for

she declared being unable to bring the proposed waivers in relation to the

situation created by the past war to an end before December 31st, 1950.60

By insisting on the inclusion of a suspension clause, its promoters wanted the

conference to acknowledge the reality of World War II and thus in a sense absolve

their governments post-factum from any blame. Another reason why the suspension clause was considered necessary is that many delegates wished to obtain from

the conference an authorisation to do the same in the future, should the necessity

arise again.61 Finally, many governments foresaw that they would need about two

years before being able to return to the full implementation of the requirements of

the convention. That is why Resolution 1 extends a waiver until the end of 1950.

Still, the proposal to include a provision in the Safety Convention to allow belligerent and neutral States to suspend the whole or any part of its regulations,

proved extremely controversial. Opinion was divided on whether such a provision was needed at all, and to a lesser degree, on the effect of suspension on the

right of (port-State) control by third Parties.62 As to the first issue, delegates soon

split into two main camps. Countries such as the United States and the UK

pressed hard for the inclusion of such a provision, on the following grounds:

• It was common knowledge that many Parties to the 1929 Convention had

been in breach of it;63

• As governments did not wish to violate the convention, some provision should

be made to meet conditions such as those obtained during the late war; the proposal would assure that governments were “correct internationally”;64

• Countries would, in time of war, suspend whatever provision they wished;

the proposal would merely enable Parties to do so without violating the

treaty; it would be far better to recognise the contingency of war and the

likelihood of suspension of the convention;65

• Other conventions as the ICAO Convention and many League of Nations

treaties already contained such a clause;66

Delegates who opposed the inclusion of the war contingency clause or who

voiced doubts about the wisdom of doing so,

• expressed fear for possible abuse of the clause;67

• or argued mainly with the USSR, that the convention should only deal with

“normal conditions”; that war was not a normal condition; that in the event

of war, every country, whether belligerent or neutral, would make its own

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rules to deal with the situation, and that in any case, the provisions on emergency and force majeure were sufficient;68

• or claimed that the entire issue was of military nature, and that the conference was not competent to deal with such delicate matters as obtained

during war; 69

It was only at a very late stage that the implications of the recently concluded

UN Charter were brought up. Yugoslavia drew attention to the fact that because

of the Charter, the Safety Convention would have to distinguish between the

rights of victim and aggressor States with respect to armed conflict. However, the

delegate conceded that this was a delicate and difficult matter. He therefore proposed that the Conference should decide not to deal with the issue at all, and leave

it to general international law.70 This hurdle was crossed when a clear majority of

delegates appeared to be in favour of incorporating the contingency of war in express terms.71

The second hurdle consisted of the extent of (port-State) control other contracting Parties would be left with in case of suspension of the convention by a

Party because of war. Greece 72 and the Netherlands took a hard-line approach, arguing that third States should not be allowed to continue the controls.73 India

wished to see the right of control limited to the extent it was intended to secure

the safety of nationals of the country in whose port the vessels are located for the

time being.74

This line of argumentation was rejected by the majority. They considered it

unacceptable that third States would lose their right to exercise safety controls in

their ports, simply because the State to which the ship belonged was at war and

had decided to suspend part or whole of the convention. This, they argued, would

not only be contrary to third States’ sovereign authority, but it might even be

taken as violation of the latter’s duties of neutrality.75 It was also pointed out that

in World War II, suspending action was taken by certain Parties and that governments which so desired had exercised control.76 The proposals to restrict or

forbid the right of control by third States in case of suspension of the convention

by a Contracting Party were subsequently defeated by a large majority.77

The other provision, which had been undoubtedly inspired by the experience

of World War II, was the proposal to exempt a contracting government from complying with the convention in case it needed to evacuate private citizens whose

lives were threatened.78 True, according to its promoter, the proposed provision

was of a pure humanitarian nature and not intended as a special application of the

suspension clause in case of war.79 The proposal met with little resistance during

the conference.

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The final text of Article VI on Suspension in case of War read in substantial

part as follows:

(a) In case of war, Contracting Governments which consider that they are affected,

whether as belligerents or neutrals, may suspend the whole or any part of the

Regulations annexed hereto. The suspending Government shall immediately give

notice of such suspension to the Organisation; (b) Such suspension shall not deprive

other Contracting Governments of any right of control under the present

Convention over the ships of the suspending Government when such ships are

within their ports; (c) The suspending Government may at any time terminate such

suspension and shall immediately give notice of such termination to the

Organisation; (d) The Organisation shall notify all Contracting Governments of any

suspension or termination of suspension under this Article.

The 1948 Convention proved widely successful. It entered into force in 1950,

and by the time of the 1960 Safety Conference, the Convention and its Regulations had been accepted by 52 governments.80 The text of the provision that was

finally agreed upon (Article VI) apparently grants contracting States a fairly unfettered right to auto-determine not only when but also what provisions to

suspend. As discussed in relation to the 1966 Load Lines Convention,81 the requirements of subparagraphs (c) and (d) are only of a procedural nature and do

not affect the substance of the right accorded to Contracting Governments in subparagraph (a). However, the leeway given to all contracting States has been

moderated in the same article by two other factors. First, the only type of armed

conflict which the Conference took into consideration was that of “war.” This reflects undoubtedly the type of conflict a large part of the world’s nations had just

gone through: a large-scale international conflict affecting many States, belligerent and neutral alike. A second limit to the right of auto-appreciation accorded in

subparagraph (a) follows from the preservation of the right of port-State control

by third States in subparagraph (b): a unilateral decision taken by a Government

to suspend the convention will therefore not imply, ipso facto, that other contracting States will lose their rights (of control) under the convention.

Although the contingency clause of the 1948 Safety Convention clearly predates the formulation of the 1966 Load Lines contingency clause, the

circumstances which led to the adoption of the respective clauses are fairly similar. During the travaux préparatoires of both conventions, many States admitted to

having unilaterally suspended part or whole of the convention during World War

II, and declared that they wished to put this situation right for the future. Moreover, both contingency clauses are almost identically worded.

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It is submitted that not too much significance should be attached to the different legal grounds invoked. It was seen above that in the Load Lines Convention

case, the United States officially relied on rebus sic stantibus. This theory was, however, not mentioned at all during the 1948 Conference, during which, the UK

delegate seemed to invoke, instead, some doctrine of necessity.

There is no doubt about it, Gentlemen, that in time of war we shall be faced—if ever we

have another war, which God forbid—as we were in the last war, with the necessity of

failing to carry out certain other requirements of this Convention. We had to do it in the

last war—not only my Government, but many other Governments had to do the same

thing. 82

Although other delegates also referred to the “necessities of war,” it is unlikely

that the above excerpt can be understood as a reference to the theory of necessity

under international law. As seen in Chapter Three, the theory of necessity forms

part of the general law of State responsibility as a ground precluding wrongfulness

under international law83 and is technically distinct from the plea of rebus sic

stantibus under the law of treaties.

Moreover, the apparent leeway which contracting parties are given in the 1948

Convention seems to be at odds with the substantive requirements which international law attaches to the plea of necessity. Article 33 of the ILC’s current draft on

State Responsibility lays down very strict substantive conditions for the invocation of the “State of necessity,” which it considers “deeply rooted in general legal

thinking”84 and which the ICJ regards as reflecting customary international law.

The World Court recently stressed in the 1997 Gabcíkovo-Nagymaros Project case

how heavy the burden of proof attached to these requirements is: there needs to be

evidence of the existence of a “grave and imminent peril”; the act being challenged must have been the “only means” of safeguarding that interest; the act

must not have “seriously impaired an essential interest” of the State towards

which the obligation existed; the State which is the author of that act must not

have “contributed to the occurrence of the state of necessity”; the party invoking

this plea is not the sole judge of its merits.85 For all those reasons, what has been

said above on the relationship between the modern version of the rebus sic stantibus

rule and the 1966 Load Lines Convention contingency clause applies mutatis mutandis to the relationship between the theory of necessity and the 1948 Safety

Convention contingency clause.

Finally, there remains the suggestion by Yugoslavia that the Safety Conference

should pay heed to the new jus ad bellum following the UN Charter, distinguish

between victim and aggressor States and therefore discriminate between legal and

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illegal acts of suspension. The suggestion was not followed up. The conference

was apparently more concerned with rectifying a situation that had existed before

the UN Charter than with taking the new, and admittedly more complicated, jus

ad bellum into consideration. However, the statement of the Yugoslavian delegation in 1948 was a foreboding one. As seen previously, it touches on a debate

which to date remains unresolved.86 At the same time, Yugoslavia also “pioneered” a line of argumentation that would be more frequently heard at maritime

conferences from 1960 onwards: namely, that contingency clauses, which allow

any State to suspend part or whole of the convention in case of war and similar circumstances, are at odds with the UN Charter.

D. The 1960 Safety Convention. The fourth international safety conference

of 1960 was the first one to be organised under the auspices of IMCO. It became immediately clear that one of the major issues the conference would have to deal

with was the right of suspension in case of war. Once again, the main protagonists

of the debate were the USSR and the United States. While the former power

proposed the deletion of the Article VI of the 1948 Convention,87 the latter, by

contrast, wished to expand the article to encompass the handling of “emergency

situations occurring in international relations not culminating in war,” and proposed the following new subparagraph (a):

Action in case of war or emergency:

(a) Nothing in the present Convention shall preclude a Contracting Government

from taking any action which it considers necessary for the protection of essential

security interests in time of war or other emergency in international relations. A

Contracting Government that takes any such action, which may include the

suspension of the whole or any part of the Regulations annexed to the Convention,

shall immediately give notice of the action to the Organisation.88

The debate on these two diametrically opposed amendments was fought on

much the same ground as during the 1948 Conference. However, the battle

lines were drawn even more sharply along the ideological East-West divide,

and the legal arguments which were invoked seemed to be more sharply focused than before. The United States, for one, denied that its amendment

carried political significance, affirming that its purpose was simply to recognise conditions “as they had existed, do exist and might exist in the future.”89

Her views were supported by the UK, who stressed that the article was only concerned with practical considerations.90

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The USSR, supported by other East Block countries, objected not only to the

amendment proposed by the United States, but argued even against keeping the

1948 version of the clause. Their delegates insisted that the entire article was in violation of the spirit of the UN Charter and that the United States amendment, by

broadening the category of circumstances in which the suspension clause could

be invoked, would make the situation even worse. They therefore urged the conference, at a minimum, to stick with the 1948 version of the clause, which they

saw as the lesser of two evils.91 When the clause was discussed in the General Provisions Committee, the USSR found some support among Western States who

considered the terms of the U.S. proposal as being too wide.92 In reply to this criticism, the United States agreed to temper the language of its amendment,

suggesting an alternative that was in essence a repetition of the clause agreed for

the 1954 OILPOL Convention.93

This did not satisfy the Russian delegate who asserted that the new American

proposal increased the possibility of the suspension of the convention by extending it also to “certain difficult situations in international relations.” That, in his

opinion, was much too broad, and open to abuse. The delegate asserted gravely

that the texts would outlast the goodwill of the conference, and that he saw another serious defect in the U.S. proposal in that it retained in an international text

the notion of a “state of tension.” This, he argued, was contrary to the spirit of the

Convention and would be a distortion of international law. He added that the

Universal Postal Union and the International Telecommunications Union Conventions no longer included any provision of that nature, and concluded that if

need be, he would favour, instead of deletion, retention of existing text.94

However, several delegates pointed out that there was now a legal tradition of

this type of contingency clauses and that the right of suspension was tempered by

the provision under which third States would retain their right of control pursuant to subparagraph (b). Following this exchange, the (USSR) proposal for deletion

of the article on suspension in case of war was heavily defeated in the General

Committee, while the latest (U.S.) version of the suspension clause found favour

with many members.95 During the subsequent plenary session, both the USSR and

the United States restated their case. The U.S. proposal for a widened set of circumstances in which suspension of the convention would be allowed, i.e., not only

in case of war but also in case of “other hostilities” was carried with 28 votes in favour, 6 against, and 9 abstentions.96

One can only speculate on the type of international tension the U.S. delegation

had in mind when proposing an amendment to Article VI. It is nevertheless striking that the above debate was conducted entirely in fairly abstract legal terms; no

particular conflicts were mentioned to illustrate the type of “other hostilities” the

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final version of the article was intended to cover. Furthermore, the travaux

préparatoires of the 1960 conference do not contain any indication of whether the

contingency clause of the 1948 Convention (or of the 1954 OILPOL article) had led

to any significant State practice between 1948 and 1960.

E. The 1974 SOLAS Convention. The 1960 Conference entered into force on

26 May 1965. Since its amendments procedure proved too slow in practice, it was

put up for review again in 1974. The ensuing SOLAS Convention includes not only

the amendments agreed upon up until that date but also an improved amendments procedure. The main objective of the 1974 Convention is to specify

minimum standards for the construction, equipment and operation of ships, compatible with their safety. Flag States are responsible for ensuring that ships under

their flag comply with its requirements, and a number of certificates are prescribed in the Convention as proof that this has been done.97

Surprisingly, the suspension clause that had sparked many a passionate ideological and legal argument during the 1948 and 1960 conferences now hardly

aroused any interest. The entire clause was unceremoniously dropped by the

Committee on General Provisions. Since the summary records of this committee

were never published, one can only speculate on the reasons for this deletion: its

members must have judged either that the clause was outdated or that it was a

matter of general international law beyond the conference’s competence. The

Chairman’s report simply mentions that the committee decided to delete the suspension clause together with a provision on non-self-governing territories.

Subsequently, the plenary accepted the deletion of both clauses without further

ado.98

5.2.4. The Pollution Prevention Conventions

• International Convention for the Prevention of Pollution of the Seas by Oil

(OILPOL), 1954

• Convention on the Prevention of Marine Pollution by Dumping of Wastes and

Other Matter (London Convention), 1972

• International Convention for the Prevention of the Pollution by Ships

(MARPOL) 73/78

A. The 1954 OILPOL Convention and the 1962 OP Conference. The 1954

OILPOL Convention constituted the first successful attempt at international regulation of oil pollution from tankers.99 Its original scope, however, was limited to

prohibiting discharges within 50 miles off land. It contains a clause, Article XIX,

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similar to the ones discussed above, according to which Parties are entitled to suspend part or whole of the convention in case of war or other hostilities:

(1) In case of war of or other hostilities, a Contracting Government which considers

that it is affected, whether as a belligerent or as a neutral, may suspend the operation of

the whole or any part of the present Convention in respect of all or any of the

territories. The suspending Government shall immediately give notice of any such

suspension to the Bureau.

(2) The suspending Government may at any time terminate such suspension and shall

in any event terminate it as soon as it ceases to be justified under paragraph (1) of this

Article. Notice of such termination shall be given immediately to the Bureau by the

Government concerned.

(3) The Bureau shall notify all the Contracting Governments of any suspension or

termination of suspension under this Article. (Italics added.)

Although the clause was probably inspired by the 1948 Convention,100 there

are two differences. The latter uses the term “war,” whilst the 1954 Convention

contains the significant addition of “other hostilities.”101 Furthermore, whilst according to Article VI (c) of the former convention, the suspension may at any time

be terminated, Article XIX (2) of the OILPOL Convention obligates governments

to end the suspension “when it ceases to be justified.”102

As far as can be gauged from the published preparatory documents, the proposal to include this contingency clause did not attract any comments. It was

discussed neither at the 1954 OILPOL Conference,103 nor at the 1962 OP Conference,104 which amended the 1954 Convention so that it applied to smaller gross

tonnage and extended the zones where dumping was prohibited.

As will be seen below, at the 1954 OILPOL Conference, most of the debate on military aspects was devoted to the issue of warships. The same occurred during the

1962 OP conference: the issue of the application of the convention to warships was

heavily debated, but the armed conflict contingency clause of the 1954 Convention

was left unchallenged.105 It may be that delegates at the OILPOL/OP conferences believed that the issue of the legal effect of war and other types of hostilities on the

treaty was clearly regulated by international law, and that it had been given adequate expression in the proposed suspension provisions. However, this explanation

seems doubtful when one considers that the question of the status of such treaties in

times of armed conflict was broached again in 1966 during the International Conference to update the Load Lines Convention.106 A more plausible explanation for

the lack of interest for the contingency clause is that the OILPOL/OP conferences

took place shortly after the 1948 and 1960 Safety Conferences, during which similar

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provisions had been the subject of extensive debate. Presumably, no delegation felt

the need to re-open this debate so soon after that, in 1954 and 1962 respectively.

B. MARPOL 73/78. The 1954 Convention and its subsequent amendments

did little to reduce the amount of oil introduced in the oceans, and their main effect was to move oil pollution outside coastal areas. The 1973 International

Convention on Marine Pollution was intended to improve this situation substantially. It incorporates the requirements and standards of the 1954 OILPOL

Convention, extends the regime to all ships operating on oceans (and not just

tankers), and sets ambitious goals for the complete elimination of all intentional

pollution of the marine environment by oil and other harmful substances and the

minimalization of accidental discharge of such substances. Nevertheless, some 40

States remain bound by the 1954 Convention and its contingency clause for war

and other hostilities.107

The 1973 International MARPOL Conference was preceded by years of preparatory work under the auspices of IMCO’s Maritime Safety Committee and its

technical Subcommittee.108 The draft provisions which were submitted subsequently to governments for comments no longer contained a clause on the

contingency of war or armed conflict.109 Surprisingly, however, the deletion of

this clause was not challenged at all, and this fact foreshadowed a similar development regarding the Safety Conventions discussed above. Finally, as will be seen

further on, the MARPOL Conference continued the tradition of the OILPOL/OP

conferences in that it was the provision related to warships that proved more controversial during the 1973 Conference.110

C. The 1972 London Dumping Convention. A final treaty instrument

which needs to be mentioned is the Convention on the Dumping of Wastes at Sea.

It was concluded at an intergovernmental conference in London, convened in

November 1972 at the invitation of the UK. IMCO was made responsible for the

Secretariat duties related to it. The Convention has a global character111 and applies to all marine waters other than internal waters.112 It entered into force in

1975 and has thus far been ratified by 72 States representing 67.64 percent of

world tonnage.113

“Dumping” is defined in the convention as the deliberate disposal at sea of

wastes or other matter from vessels, aircraft, platforms or other man-made structures as well as the deliberate disposal of these vessels or platforms themselves.114

Article IV prohibits the dumping of certain hazardous materials and requires a

prior special permit for the dumping of a number of other identified materials and

a prior general permit for other wastes or matter.115 Wastes which cannot be

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dumped and others for which a special dumping permit is required are listed in

the annexes. Article V(2) allows the issuing of permits for the dumping of even the

most dangerous wastes into the sea in cases of emergency “posing unacceptable

risk relating to human health and admitting no other feasible solution.” However, this exception—which may be waived —116 is contingent on a series of

procedural requirements: other Parties need to be consulted, and the Organisation may recommend appropriate procedures.

The Convention does not contain an express clause dealing with war or armed

conflict, but includes the following exception in Article V(1):

The provisions of Art. IV shall not apply when it is necessary to secure the safety of

human life or of vessels, aircraft, platforms or other man-made structures in cases of

force majeure caused by stress of weather, or in any case which constitutes a danger to

human life or a real threat to vessels, aircraft, platforms or other man-made

structures at sea, if dumping appears to be the only way of averting the threat and if

there is every probability that the damage consequent upon such dumping will be

less than would otherwise occur. Such dumping shall be so conducted as to minimise

the likelihood of damage to human or marine life and shall be reported forthwith to

the Organisation.117

The phrase “or in any case which constitutes a danger to human life or a real

threat to vessels etc.” seems broad enough to justify deviation from the convention in times of armed conflict. This impression is reinforced by the fact that,

unlike for emergencies (Article V(2)), no waiver is foreseen for resort to Article V

(1), nor any prior consultation procedure.

This interpretation is in accordance with U.S. domestic practice. Thus, the

1988 U.S. Public Vessel Medical Waste Anti-Dumping Act prohibits the disposal

of potentially infectious medical waste into ocean waters, unless this is done beyond 50 nautical miles from the nearest land. This interdiction does not apply,

however, when either the health or safety of individuals on board is threatened, or

“during time of war or a declared national emergency.”118

5.3. Conclusions to Chapter V

The travaux préparatoires of some of the maritime conventions show that reference was made to the contingency clauses of the Convention on Air Navigation of

1919119 and the ICAO Convention of 1944.120 These stipulate that the treaties do

not apply during war, or at least do not place limits on the freedom of action of

belligerent and neutral States during war or other types of emergency. However,

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the tenor of the maritime clauses agreed on subsequently was often different.

Leaving aside the old 1910 Salvage and 1914 Safety Conventions, the contingency clauses discussed in this chapter indicate that the drafters intended that

the conventions would, in principle, continue to apply during international

armed conflict. But the contingency clauses permit Parties to deviate from the

convention in whole or in part in accordance with certain substantive and/or

procedural requirements.

It is noteworthy that most of the conventions discussed in this subchapter

deal(t) with war or other types of armed conflict in a fairly similar manner. Whenever conference delegates were called upon to deal with the question, the majority

agreed that armed conflict was a contingency that might allow a State party to suspend some or all of its obligations under the conventions. However, it is striking

that none of the clauses under review entail any pre-determined automatic legal

effects of the outbreak of armed conflict on the treaty. Although some delegates

voiced the opinion that war “ipso facto” meant that the treaty would be terminated

or suspended between belligerents, none of the texts which were finally adopted

supports that view.

The various conference documents discussed above and the wording of the

clauses that were finally adopted demonstrate that the delegates’ overarching concern was to deal with the issue in as pragmatic a manner as possible. As a

consequence, legal subtleties that follow from the new jus ad bellum under the UN

Charter, or even the more established distinction between belligerent and neutral

countries, were not really taken into account. Many of the provisions which were

adopted after World War II reflect primarily experiences related to the large-scale

international conflicts of the First and Second World Wars. The consequences of

these conflicts were inevitably felt globally; they had affected world shipping and

navigation and had caused impacts on the commercial operations of all States, regardless of their formal political or legal status in these conflicts.

Another sign of the purposely pragmatic way in which the conference delegates dealt with the contingency of war/armed conflict is that the resulting

clauses tend to treat all types of armed conflict as temporary emergencies, which

could affect a part or the whole of the operation of the convention. At first

glance, there seems to be little real difference in the way the treaties judge instances as force majeure, stress of weather, humanitarian emergencies and war or

armed conflict. All of these may justify temporary non-application of certain

provisions. Particularly striking for instance is the substantive and procedural

similarity between the clauses on “carriage of persons in emergency” and “suspension in case of war” adopted for the first time at the occasion of the 1948

Safety Conference.

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There are nevertheless some differences between war/armed conflict and other

types of emergency: (1) instances asforce majeure and stress of weather do have automatic ipso facto effects on the execution of the treaty:121 By definition, these are

circumstances that leave a State party with little choice of action;122 by contrast,

as mentioned before, the contingency clauses for war/armed conflict assume that a

State party is still left with some freedom of choice, not only as to whether to suspend or not, but also as to what provisions to suspend; therefore, an armed

conflict contingency clause usually includes a number of procedural requirements regarding the duty to inform and notify other contracting Parties; (2)

compared to force majeure and similar emergencies, war/armed conflict may affect

a different type and range of provisions of the treaty.

It was seen as well that the insertion of a suspension clause in the 1930 Load

Lines Convention and the 1929 Safety Convention had been justified on different

legal grounds: rebus sic stantibus in the former,123 the “necessities” of war in the

latter.124 It was argued above that these claims do not meet the requirements

which current international law attaches to the pleas of either “fundamental

change of circumstances” under the law of treaties or the “state of necessity” under the law of State responsibility.

In addition, there is reason to believe that even before World War II, international law distinguished between the suspension of treaties in case of war, and

suspension/termination on the basis of rebus sic stantibus, or on other grounds such

as duress. For instance, the 1935 Harvard Research draft treaty on the law of

treaties125 contains provisions with separate substantive and procedural requirements for rebus sic stantibus,

126 duress,127 and effect of war.128 Perhaps an even

clearer example is given by the distinction which the Washington Naval Disarmament Treaty concluded in 1922—i.e., eight years before the 1930 Load Lines

Convention—makes between the procedure for revision of the treaty on the

ground of rebus sic stantibus (Article 21):

If during the term of the present Treaty the requirements of national security of any

Contracting Power in respect of naval defence are, in the opinion of the Power,

materially affected by any change of circumstances, the Contracting Powers will, at the

request of such Power, meet in conference with a view to the reconsideration of the

provisions of the Treaty and its amendment by mutual agreement. (Italics added.)

and unilateral suspension of the treaty in the case of war (Article 22):

Whenever any Contracting Power shall become engaged in war which in its opinion

affects the naval defence of its national security, such Power may after notice to the other

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Contracting Powers suspend for the period of hostilities its obligations under the

present Treaty... provided that such Power shall notify the other Contracting

Powers that the emergency is of such a character as to require such suspension.

(Italics added.)

On the basis of the above, including what has been said on this issue in Chapter

III,129 a clear case can be made that the discussed maritime contingency clauses

point to the existence in international law of a separate ground allowing Parties to

suspend a treaty in whole or in part in the case of armed conflict.

Are such contingency clauses now outdated? The analysis has shown that, at

least up to 1966, (mainly Western) States succeeded in convincing the majority of

conference delegates that it was better not only to preserve this type of treaty

clause: in 1960 and 1966 the set of circumstances under which a State party could

decide unilaterally to suspend part or whole of the convention, was even expanded; to “other hostilities” in the 1960 Safety Convention,130 and to

“hostilities or other extraordinary circumstances” (affecting) the “vital interests”

of a State, in the 1966 Load Lines Convention.131

Although some of these clauses are still in force today (e.g. the 1954 OILPOL

Convention and the 1966 Load Lines Convention), it is noteworthy that none of

the conventions concluded since the 1970s contain such a provision. Moreover, as

was seen above, the contingency clause was deleted without much ado from the

1974 SOLAS Convention,132 and does not appear in MARPOL 73/78 either.133 However, without a further examination of the other clauses of these treaties, any

conclusion on their status in times of armed conflict would be premature.

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Chapter VI

Sovereign Immunity and the Exemption of Public Vessels from Maritime Conventions

6.1. General Comments

A GREAT NUMBER OF MARITIME CONVENTIONS DO NOT APPLY TO WARSHIPS, a

fact which is sometimes seized upon in the literature as proof that these treaties would not apply in times of armed conflict.1 It is submitted that the validity of

such an inference depends on the scope of the exemption granted. The reasons for

why warships are exempted are complex, give rise to confusion, and need to be explored in detail.

There are two basic interrelated principles which have led to the current situation. Historically, the ruler was equated with the State. Under the traditional law,

laid down, inter alia, in Tobin v. The Queen, “The King could do no wrong,” which

meant that under no circumstances could a sovereign be sued in the courts, not

even of his own country.2 A similar prohibition still applies to foreign heads of

State.3 While sovereigns are no longer equated with the State, a foreign State is normally granted qualified immunity from the jurisdiction of another State, in respect

of its conduct or property.4 This is based on the concept that States are co-equal on

the international plane5 and regarded as an act of comity under customary international law.6 Sovereign immunity may be waived, but since this constitutes an

exception to the general rule, a waiver should be interpreted restrictively. 7

The precise limits of State immunity are controversial and constitute one of

the most litigated aspects of international law.8 Under current international law,

the principle is limited to acts of ius imperii, or governmental acts in official capacity, as opposed to acts of ius gestionis, or acts done in a private or commercial

capacity.9 There is also a tendency to exempt cases of non-commercial torts from

the principle of immunity,10 and in particular, cases of gross violations of human
rights by a foreign government. 11 The 1989 case of the Hercules demonstrates,

however, that acts of warfare by foreign governments are covered by the principle

of sovereign immunity and do not fall under the non-commercial tort exception. 12

Similarly, in the case of Koohi and Others v. United States (1992), the U.S. Court

of Appeals needed to decide whether the shooting down of an Iranian civilian aircraft by the U.S. cruiser Vincennes, as well as other instances of U.S. intervention

in the Iran-Iraq war, were justifiable. The Court decided in the negative, deciding

that these operations fell within the “combatant activities exception” to the

waiver by the U.S. of sovereign immunity under the Federal Tort Claims Act. 13

As noted by the U.S. Supreme Court in Alfred Dunhill Inc. v. Republic of Cuba

(1976), whilst discernible rules of international law have emerged with respect to

the commercial dealings of governments in the international market, there is no

consensus as to the rules of international law concerning exercise of governmental power, including military powers.14

Because of the legal fiction that they form part of their flag State’s territory,

ships belonging to a foreign State have of old been entitled to immunity from jurisdiction of any State other than the flag State.15 The locus classicu of U.S. and

international law is that of The Schooner Exchange v. McFaddon, decided by the

U.S. Supreme Court in 1812.16 In this case, two American citizens attempted to

assert title to a French military vessel harboured in Philadelphia, claiming that

she had been unlawfully seized from their custody by persons acting under orders

of the Emperor Napoleon. Chief Justice Marshall, in denying the claim formulated the principle that public armed vessels in the service of a foreign sovereign

are generally exempt from the jurisdiction of any nation but the flag state.17 The

next case which has strongly influenced international law is the UK case of The

Parlement Belge (1879-1880). This concerned a vessel owned by the Belgian King

that had rammed an English steam tug. Although employed primarily as a mail

carrier, the vessel was also engaged in carrying passengers and freight. Reversing

the judgement delivered in the first instance, the Court of Appeal decided that a

foreign sovereign cannot be sued in personam and that an action in rem cannot be

brought against his ship if she is being used substantially for public purposes.18

Currently, the legal situation with respect to State-owned ships is also determined by various national laws and international treaties, which lack uniformity.

Apart from provisions in maritime conventions which will be discussed below,

there have been several attempts at codification of the issue of jurisdictional immunity. The 1926 International Convention for the Unification of Certain Rules

relating to the Immunity of State-owned Vessels includes several exceptions to

the jurisdictional immunity of warships and other State-owned ships. It modified

the position taken by the English courts in The Parlement Belge by explicitly

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denying immunity in cases of collisions and other accidents of navigation.19 The

1934 Protocol thereto clarified that this convention did not affect the rights or obligations of belligerents and neutrals nor the jurisdiction of prize courts.20 The

1940 Treaty on International Commercial Navigation Law adopts the same principles as the 1926 Brussels Convention regarding actions in respect of collisions

involving warships and other State-owned ships.21

By contrast, the 1972 Council of Europe Convention on State Immunity and its

Additional Protocol include many exceptions to the principle of jurisdictional

immunity, but these do not apply to State-owned ships nor their cargo.22 In its

1991 Draft of Articles on Jurisdictional Immunities of States and their Property,

the ILC adopts the latter approach, specifying that warships, naval auxiliaries, and

other ships owned or operated by a State and used exclusively on government

noncommercial service remain covered by the sovereign immunity principle,

even in respect of collisions and other accidents of navigation.23

There is still no generally internationally recognised definition of State-owned

ships, although there is a common understanding of the basic elements and categories.24 The most important category for this study is formed by warships and

similar vessels;25 the second comprises ships employed for public, non-commercial

purposes, including for example, police, customs or other patrol vessels. The third

type of State-owned ships would be those employed for commercial purposes; however, according to current international legal theory and practice, the latter

category of ships is probably no longer entitled to traditional sovereign immunity.

Many of the provisions which will be discussed in this chapter deal ostensibly

with “sovereign immunity” or with the exemption of vessels “entitled to sovereign immunity under international law.” It is important to distinguish, however,

between jurisdictional immunity on the one hand, and exemption from substantive legal provisions on the other. State jurisdiction can theoretically cover two

distinct types of legal authority: prescriptive and jurisdictional. The first is synonymous with the authority of a sovereign nation to prescribe substantive rules

and regulations, primarily applicable and limited to its territory and its nationals.26 By contrast, the jurisdictional or enforcement authority of a State refers to

“the exercise of the power to adjudicate, normally assumed by the judiciary or

magistrate within a legal system of the territorial State,” and by extension, to the

exercise “of all other administrative and executive powers, by whatever measures

or procedures and by whatever authorities of the territorial State in relation to a

judicial proceeding.”27

Sovereign immunity is generally assumed not to entail exemption from the jurisdiction to prescribe, and therefore not to imply exoneration from compliance

with substantive rules of law.28 It follows that when a maritime treaty contains a

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classic sovereign immunity reservation, it applies fully to all ships, including warships and noncommercial ships, but that enforcement of applicable rules is

reserved exclusively for the flag State.29 If the exemption of public vessels relates

to jurisdictional matters only, it is submitted that this has no bearing on the effect

of the (substantive) rules of the treaty during armed conflict.

However, as will be seen below, many maritime treaties extend immunity to

warships from matters of substance, often under the misleading title of “sovereign” immunity. Such an exemption bears on the effect of the treaty during armed

conflict. While for most of the time navies of modern sea powers operate at least

technically in a state of peace, they may engage in some type of hostile or even

forcible action in the pursuit of their countries’ policies. Incidents at sea may

range from “bumping incidents,” i.e., deliberate collisions, to open conflicts.30

When a warship or other naval vessel is exempted from the substantive rules of a

maritime treaty under normal circumstances, it will, a fortiori, not be bound by

that treaty during armed conflict. In cases where the drafters did not wish to be

drawn on this issue,31 the substantive rules laid down in the treaty may or may not

be applicable to the “exempted” category, and the answer may have to be sought

in general international law. If the reason for the exemption is not clear from the

wording of the treaty, an examination of the travaux préparatoires may be

necessary.

6.2. Discussion

6.2.1. Load Lines

• International Convention respecting Load Lines, 1930

• International Convention on Load Lines, 1966

Both the 1966 Load Lines Convention32 and the predecessor treaty of 193033

contain a clause exempting “ships of war” from the scope of the convention. It was

seen above that during the 1966 Conference, the proposal to allow suspension of

the convention during armed conflict proved controversial.34 By contrast, the

proposal to retain the exemption of warships was not challenged at all. The conference records show that the list of exempted ships was moved from the

Regulations to the general provisions of the convention.35

The wording of the exemption provision of the 1966 Convention leaves little

room for doubt about the type of immunity warships are entitled to. The exemption extends to the entire treaty, exonerating warships from compliance with the

substantive rules of the treaty and all its regulations. In the literature, this

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exemption has been justified on the grounds of security. Professor Treves, for instance, points to the requirement of confidentiality regarding data on the

construction of warships and their operational procedures.36

6.2.2. Safety Conventions

• Convention for the Safety of Life, 1914

• International Convention for the Safety of Life at Sea, 1929

• International Convention for the Safety of Life at Sea, 1948

• International Convention for the Safety of Life at Sea, 1960

• International Convention for the Safety of Life at Sea (SOLAS), 1974

The 1913 Safety Conference was held to remedy the many safety defects of passenger ships discovered as a result of the 1912 Titanic disaster. As is made plain by

the text of Articles 2 and 5, the convention was intended to apply to merchant

ships of a certain description only: “mechanically propelled, which carry more

than 12 passengers and which proceed from a port of one of the said States to a

port situated outside that State. . . .” As a result, warships—which were not even

mentioned in the convention—were not expected to comply with the substantive

(safety) provisions.

The Final Act of the 1929 Safety Conference comprises, apart from the text of

the 1929 Convention itself, two appendices: Annex I, which contains the (Safety)

Regulations, and Annex II, which contains a proposal for amending the International Regulations for Preventing Collisions at Sea (COLREGS). The latter are

“rules of the road at sea,” which have of old applied to all types of ships, including

in particular, warships.37 However, the fact that an annex on COLREGS was appended does not imply that these became part and parcel of the 1929 Safety

Convention. On the contrary, the text of several articles make clear that the

COLREGS were considered to be wholly separate.38 The 1929 Conference could do

no more than propose amendments to the COLREGS, which dated back from the

previous century and for whose revision the agreement of parties not present at

the Safety Conference was required.39

Finally, it transpires from Article 2(4) of the main provisions of the 1929 Convention that the status of warships under the convention was unchanged from

1914:

The present Convention, unless expressly provided otherwise, does not apply to

ships of war.

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Although this cautious formulation leaves room for the possibility that some of

the convention’s provisions might apply to warships, no such express provision

has been adopted.

The 1948 Safety Conference led to a complete overhaul of the structure of the

previous convention. First, with respect to the part relating to Safety, many

clauses were moved from the main body of the convention to the regulations, including the provision on exempted ships (which became Regulation 3). The

conference decided to keep the main body of the convention as succinct as possible, confine it to matters as ratification, denunciation and modification, and move

all other “technical provisions” to the Regulations. Second, just like in 1929, the

conference proposed a series of revisions to the COLREGS, which were appended to

the final act. Although attempts were made to integrate the latter with the rest of

the Safety Convention, the task proved impossible for the following reasons:

• The COLREGS were observed by many more countries than were parties to

the 1929 Safety Convention, and it was realised that this might continue to

be the case in the future;40

• Over 50 countries had accepted the COLREGS, but only 30 were present at

this Conference: some 20 ratifications of those not present would be needed

for new COLREGS to come into force;41

• There were several technical obstacles to integration, which included different dates for entry into force and different procedures for amendment;42

During the 1948 Conference, the exoneration clause for warships became the

subject of debate. However, the question at issue was not whether warships should

or should not be exempted from the safety provisions, but what other types of military vessels might be allowed to benefit from the same exemption.43 Agreement

was eventually reached on exempting both “ships of war” and “troopships” (Regulation 3). It was noted for the record that it was the meeting’s stated intention

that the term “ships of war” should be interpreted broadly, whilst “troopships”

narrowly. The (UK) chairman of the Working Party added that it was not the intention to exempt commercial ships carrying troops on a particular voyage.44

The verdict on the application of the Safety Convention and the Safety Regulations produced by the 1948 Safety Conference is the same as for the previous

Safety Conventions. Although the exoneration clause for warships was moved in

1948 from the main body of the Convention to the Safety regulations, this was

done for the technical reasons explained above. Furthermore, none of the delegates at the 1948 Conference challenged the exemption for warships; on the

contrary, the entire debate related to what additional categories of ships with a

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military mission might be exempted. Finally, Article II of the main provisions

stipulates that the 1948 Safety Convention applies (only) to “ships registered in

countries. . . .” From the records of the 1954 OILPOL conference, it is clear that the

term “registered” was at that time understood as excluding warships.45

The 1960 Safety Conference retained the structure of the previous conference.

Annex A to the Final Act contains the text of the amended Safety Convention as

well as of the newly agreed Safety Regulations. Annex B to the final act contains

the proposed new version of the COLREGS, which, as before, were not integrated in

the Safety Convention. IMCO was requested to initiate the necessary procedure for

their revision.

The major innovation brought about by the 1960 Safety Conference was the incorporation of provisions and recommendations on the safety of nuclear ships,

despite the fact that many delegates thought that the matter was premature.46

As for warships, the 1960 Conference decided to retain the clauses of both Article II and of Regulation 3, Chapter I of the Safety Regulations of the previous

convention.47 As was the case in 1948, ships of war and troopships were hence exonerated from complying with the substance of the Safety Convention and its

Regulations “unless expressly provided otherwise.” However, like in 1948, the

1960 Conference does not seem to have adopted any such express provisions. On

the contrary, the express exclusion of warships is repeated in two of the Safety

Regulations’ Chapters: in Chapter V on the Safety of Navigation, which, according to Regulation 1, applies to all ships on all voyages, except ships of war; and in

Chapter VIII on Nuclear Ships, which, according to Regulation 1, applies to all

nuclear ships except ships of war.

The 1974 International Convention for the Safety of Life at Sea (SOLAS) was

adopted about nine years after the previous Safety Convention entered into

force,48 and about two years after the COLREGS had been revised in a separate convention.49 None of the amendments tabled either before or during the 1974 Safety

Conference pertained to the exoneration of warships and troopships. Consequently, there was no debate about their exclusion from the substance of the

Convention. As a result, the relevant provisions that are still in force today are

identical to the principal exemptions adopted by the 1948 Safety Conference.

What has been said before in relation to the meaning and the significance of these

exemptions, remains valid. According to Professor Treves, this exclusion is justified for reasons of confidentiality.50

6.2.3. COLREGS

• COLREGS appended to the Final Act of the 1929 Safety Conference

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• COLREGS appended to the Final Act of the 1948 Safety Conference

• COLREGS appended in Annex B of the International Convention for the Safety

of Life at Sea, 1960

• Convention on the International Regulations for Preventing Collisions at Sea

(COLREGS ) 1972

As indicated before, the international “rules of the road” at sea have of old applied to warships. The Regulations presently in force were revised by an

international conference held under IMCO auspices in 1972.51 As of 1 February

1998, 131 States representing 96.02 percent of the world’s tonnage were party to

this 1972 treaty.52

One of the most important innovations in the 1972 Regulations was the recognition given to traffic separation schemes (Rule 10). The Convention groups

provisions into sections dealing with steering and sailing, lights and shapes and

sound and light signals. There are also four Annexes containing technical requirements concerning lights and shapes and their positioning; sound signalling

appliances; additional signals for fishing vessels when operating in close proximity,

and international distress signals. Guidance is provided in determining safe speed,

the risk of collision and the conduct of vessels operating in or near traffic separation

schemes. Other rules concern the operation of vessels in narrow channels, the conduct of vessels in restricted visibility, vessels restricted in their ability to

manoeuvre, and provisions concerning vessels constrained by their draught.53

Since the adoption of the first international rules of the road, the number of

provisions that expressly apply to warships and other naval ships has increased

steadily. Several types of warships, amongst which are minesweepers and aircraft

carriers, are covered by the Rules either expressly54 or by implication.55

The demands of good seamanship require that naval ships comply with these

international “rules of the road.” Although the total number of naval ships is

small compared to merchant ships—for every naval vessel in 1988, there were

about ten large merchant vessels56—traffic at sea would result in chaos if naval

vessels would enjoy “immunity” with respect to the substance of the COLREGS.

However, the text of the COLREGS shows that the duties of State parties with respect to military vessels are formulated in less stringent terms. Most

conspicuously, Rule l(e) requires that governments endeavour to achieve the

“closest possible compliance” if they “have determined that vessels of a special

construction or purpose cannot fully comply with the provisions of any of the

Rules.” The wording of Rule l(e) suggests that governments enjoy a measure of

freedom to determine the extent to which naval vessels should comply with some

of the substantive provisions.

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There remains, nevertheless, the question of what legal effects, if any, armed

conflict has on the COLREGS. As was explained before, none of the Safety Conferences at which both the international Safety Regulations and the international

COLREGS were revised managed to integrate the latter with the main provisions of

the Safety Convention. Because of this legal and technical disunion, the coverage

of the general provisions of the texts of these Safety Conventions does not extend

to the international COLREGS. As a result, Article VI of the 1960 Safety Convention on Suspension in case of War could not be taken to apply to the Annex on

COLREGS. Furthermore, the 1972 conference revising the COLREGS adopted a general provision on denunciation,57 but no clause on suspension in case of armed

conflict, force majeure, or any other cases of emergency.

This does not mean however, that governments would not be entitled to resort

to suspension of certain COLREGS when they find themselves in the circumstances

mentioned, e.g., in Article VI of the 1960 Safety Convention. It is submitted that

even in the absence of an express provision to this effect, States may be entitled to

resort to special measures in times of armed conflict by virtue of general international law. Indeed, common sense alone indicates that in times of armed conflict,

States will in any case resort to amending or suspending certain COLREGS, at least

as far as their naval vessels are concerned. This submission can be substantiated

further with the following two elements of treaty practice.

First, Rule l(e) indicates that State parties may not be in a position to have certain vessels “of a special construction or purpose” comply with all COLREGS. The

same provision urges States to endeavour to achieve the “closest possible compliance,” however, “without interfering with the special function of the vessel.” It is

submitted that this provision would allow any State party to (auto-determine) the

extent to which warships need to comply with certain COLREGS when on a special

mission or when entrusted with such special functions as may be required in

times of armed conflict.

Secondly, since the 1970s, a number of naval powers have entered into bilateral

so-called Incidents at Sea Agreements (INCSEA), following the example of the

Agreement on Prevention of Incidents at Sea, concluded between the United

States and the USSR in 1972.58 Similar bilateral agreements were subsequently

concluded between the USSR and the UK, France, FRG, Italy and Canada.59

These agreements apply exclusively to naval vessels and are meant to defuse

tensions caused by quasi-hostile encounters at sea between naval powers. They

form part of the body of arms control measures and are akin to confidence-building measures.60 Taking the first of these agreements as an example, the United

States and the USSR solemnly declare in Article II that a first means for reducing

the risks associated with their military competition at sea consists of observing

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“strictly the letter and spirit of the of the International Regulations for Preventing Collisions at Sea. . . .” The bulk of this 1972 INCSEA consists of additional

undertakings—or special regulations—designed specifically for military encounters and operations.61 There is also an article on the exchange of information

between Parties on instances of collisions or other incidents (Article VII).

Although not explicitly provided for, it is patent that this INSCEA agreement

was not concluded in contemplation of hostile conflict between the Parties. This

is confirmed by military lawyers who have stressed that in the event of the outbreak of armed conflict, both Parties may decide, at a minimum, to suspend at

least some of the INSCEA provisions, including its references to the COLREGS.

62

This interpretation is reinforced moreover, by the more recent Agreement on

the Prevention of Dangerous Military Activities (DMAA) concluded in 1989 between the same two States.63 The DMAA is intended to supplement the 1972

INSCEA and is no longer limited to naval incidents.64 Significantly, the DMAA incorporates a special “savings clause,” which refers in the jus ad bellum language of

the UN Charter to the right of individual or collective self-defense in accordance

with international law:

This Agreement shall not affect the rights and obligations of the Parties under other

international agreements and arrangements in force between the Parties, and the

rights of individual or collective self-defense and of navigation and overflight, in

accordance with international law. Consistent with the foregoing, the Parties shall

implement the provisions of this Agreement, taking into account the sovereign

interests of both Parties.65

6.2.4. Prevention of Oil Pollution

• International Convention for the Prevention of Pollution of the Seas by Oil

(OILPOL), 1954

• International Conference on Prevention of Pollution of the Sea by Oil, 1962 (OP

Conference)

The 1954 International Conference on Pollution of the Sea by Oil had before it

the proposals made by the UK government dated April 1954. This included an exemption for warships and naval auxiliaries as in the 1948 Safety Convention.66 No

delegate objected to the principle of the exemption, but there was some disagreement about the range of excluded military vessels and the wording of the clause.

In addition, the idea was aired that even if Parties could not be compelled to do so,

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they should nevertheless be urged to apply the convention’s provisions on a voluntary basis to categories of vessels formally excluded from application.67

It was finally proposed to exclude “ships for the time being used as naval auxiliaries” from the convention and to add a resolution in the annex, on “The

application of the principles of the Convention so far as is reasonable and practicable to the

ships to which the Convention does not apply.” The substantive part of this Resolution

(No. 2) reads as follows:

That the governments of countries which accept the present Convention should also, by

legislation or otherwise, apply the provisions of the Convention so far as is reasonable

and practicable to all classes of sea-going ships registered in their territories or

belonging to them to which the provisions of the Convention do not apply, that is to say,

warships and other unregistered ships, ships used for the time being as naval auxiliaries.

(Italics added.)

Delegates subsequently queried why the exclusion of warships had not been

expressly mentioned in the main exemption clause, Article II (1). The Chairman’s

explanation was that no such explicit reference had been included:

. . . because the Convention refers only to ships registered by Contracting

Governments. Warships, not being registered, were, therefore, excluded from the

Convention, although they were referred to in Resolution 2. . . .68

Furthermore, the Italian delegate requested that it be put on the record that

Resolution 2 was not binding on governments. This request was granted, and Resolution 2 was carried without further comments.69

Soon after its establishment, IMCO became the administrator and depositary of

the 1954 OILPOL Convention. In 1962, the “OP” conference was convened to revise the 1954 OILPOL Convention and to consider, inter alia, a series of

amendments in respect of warships and similar military vessels. A first series of

proposals was aimed at refining, reformulating or updating the wording of the exclusion clauses, or at integrating the text of Resolution 2 in the main part of the

Convention.70 Other proposals questioned the wisdom of continuing the exemption for warships and/or naval auxiliaries altogether.71 A third series of proposals

aimed at strengthening the recommendations contained in Resolution 2, by using

more urgent and stringent language.72

During the conference the differences between the various positions seemed at

first irreconcilable.73 In the end, preliminary agreement was reached on a formula

for Article II that would still exonerate warships and ships “for the time being

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used as naval auxiliaries” from complying with the substance of the convention,

but incorporating also a new “undertaking” based on the text of the old Resolution 2.74 The revised text of Article II, which was finally adopted by the 1962 OP

conference, reads in relevant part as follows:

(1) The present Convention shall apply to ships registered in any of the territories of

a Contracting Government and to unregistered ships having the nationality of a

Contracting Party, except. . .(. . .)

(d) naval ships and ships for the time being used a naval auxiliaries

(2) Each Contracting Government undertakes to adopt appropriate measures

ensuring that requirements equivalent to those of the present Convention are, so far

as is reasonable and practicable, applied to the ships referred to in subparagraph (d)

of paragraph (1) of this Article.

It is questionable whether as a result of this compromise text more pressure is

brought to bear on Parties to apply the convention to the excluded categories of

ships. There remains of course the decision of the 1962 Conference to reformulate

the recommendations contained previously in Resolution 2 of 1954 and to incorporate these into the main body of the Convention. The impact of this change

could only be appreciated by comparing domestic State practice both before and

after the 1962 amendments.

6.2.5. Prevention of other forms of Marine Pollution

• (Oslo) Convention for the Prevention of Marine Pollution by Dumping from

Ships and Aircraft, 1972

• (London) Convention on the Prevention of Marine Pollution by Dumping of

Wastes and Other Matter, 1972

• International Convention for the Prevention of the Pollution by Ships

(MARPOL) 73/78

• Kuwait Regional Convention, 1978

• Montego Bay Convention on the Law of the Sea, 1982

• Convention for the Protection of the Marine Environment of the North-East Atlantic OSPAR Convention (OSPAR), 1992

A. The 1972 Oslo and London Dumping Conventions. The Oslo Convention, which regulates dumping in part of the Northern Hemisphere, and the

London Dumping Convention, which is universal in scope, were adopted in the

same year but deal with the issue of State-owned ships differently. The London

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Convention was signed at an intergovernmental conference in December 1972

and provides in Article VII (4):

This Convention shall not apply to those vessels and aircraft entitled to sovereign

immunity under international law. However, each party shall ensure by the

adoption of appropriate measures that such vessels and aircraft owned or operated by

it act in a manner consistent with the object and purpose of this Convention, and

shall inform the Organization accordingly.

During the preparation of the London Convention, its application to public

ships had been very controversial.75 Military powers, and particularly the United

States, maintained that the convention should not apply to vessels and aircraft entitled to sovereign immunity under international law. Other countries favoured a

classic sovereign immunity approach whereby a reservation would be made for

enforcement measures only. The latter—more restrictive—solution was adopted

only months earlier by the drafters of the Oslo Dumping Convention, Article

15(6) of which provides that:

Nothing in this Convention shall abridge sovereign immunity.76

The formula that was finally adopted at the London Conference was intended

as a compromise between those two approaches. Nevertheless, as Dr. Timagenis

writes, the overall effect of this compromise text is very close to the classic sovereign immunity approach, in that only flag State enforcement can be conceived.

The real difference—at least in theory—lies in the substantive obligations which

the latter State should enforce. Under the classic sovereign immunity approach of

the Oslo Convention, the flag State should enforce strictly the provisions of the

convention; under the London Convention, the flag State is offered more flexibility and should adopt appropriate measures to ensure that these vessels act in a

manner consistent with the object and purpose of the convention.77

It was seen earlier that the 1972 Oslo Dumping Convention was replaced in

1992 by the OSPAR Convention.78 The negotiators of the latter chose to retain the

traditional concept of sovereign immunity. Article 10 (3) of Annex II provides that:

Nothing in this Annex shall abridge the sovereign immunity to which certain

vessels are entitled under international law.

B. MARPOL 73/78 and 1982 UNCLOS. The 1973 MARPOL conference was preceded, amongst others, by an officially convened preparatory meeting earlier that

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year.79 One of the outcomes of this meeting was the following proposal (Article 3

(2)) for a subparagraph dealing with the exclusion of warships and similar vessels

from the scope of the convention:

The present Convention shall not apply to any warship or other ship (sic) owned or

operated by a State and used for the time being, only on government non-commercial

service (fn. 8). However, each Contracting State shall ensure by the adoption of

appropriate measures that such ships owned or operated by it act in a manner consistent

with the object and purpose of the present Convention.

As the preparatory work for MARPOL foreshadowed, the immunity clause

would become, once again, the focus of debate during the conference. The USSR

suggested a formula that would make the wording of the exemption clause more

precise without, however, enlarging the number of exempted ships.80 Norway and

Japan wanted to limit the exemptions to warships only.81 Greece wanted to restrict the immunity to warships, “or at least to state vessels only.”82 According to

Spain, the exemption should be formulated in broader terms, leaving scope for exclusion of all ships “entitled to exemption in accordance with international law,”83

while according to Mexico, the exemption clause should only refer to the jurisdictional aspects of sovereign immunity.84 Subsequently, the Netherlands tabled an

amendment which combined elements of several of the above proposals.85

Unfortunately, the summary records of the committee debates have not been

published. The text, which was finally adopted (Article 3(3)), reads as follows:

The present Convention shall not apply to any warship, naval auxiliary or other ship

owned or operated by a State and used, for the time being, only on government

non-commercial service. However, each Party shall ensure by the adoption of

appropriate measures not impairing the operations or operational capabilities of

such ships owned or operated by it, that such ships act in a manner consistent, so far

as is reasonable and practicable, with the present Convention.86

At the 10th plenary session of the conference, the text of Article 3 was adopted

by 55 votes to none with two abstentions.87

Despite the relative parsimony of comments from the travaux préparatoires, it is

nevertheless possible to draw conclusions on the manner in which the MARPOL

conference has dealt with the issue of State immunity. The exemption clause

adopted in Article 3(3) by the 1973 MARPOL conference differs from Article II (1)

(d) of the 1954 OILPOL Conference, as amended into II (2) by the 1962 OP Conference, in several respects. First, the range of ships absolved from compliance with

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substantive provisions has been broadened to include all State-owned or State-operated ships as long as they are used on government non-commercial service. Second,

by accepting the 1962 amendments, State Parties undertook to adopt appropriate

measuresto ensurethat requirements equivalent to those developed for other ships

apply so far as is reasonable and practicable to the exonerated military vessels. Arguably, the rephrasing of this mitigation clause by the MARPOL conference has

placed a heavier and more stringent duty on State parties, by using terminology

such as “each Party shall ensure . . . by the adoption of appropriate measures. . . that

such ships act . . .” in conformity with the convention.

The phrases “each Party shall ensure,” and “by the adoption of appropriate

measures” were most likely borrowed from Article VII (4) of the 1972 London

Dumping Convention. Unfortunately, the MARPOL conference did not follow the

latter’s example in requesting that State Parties inform the Organization of the

measures taken. It is submitted that the incorporation of such a reporting requirement would significantly increase the pressure brought to bear on State Parties.

Although these differences may only be questions of degree, it is the MARPOL

formula which has gained wide acceptance in subsequent treaty practice, and not

the formula of the 1972 London Dumping Convention. Significantly, the negotiators of the Third United Nations Law of the Sea Conference (UNCLOS III) copied

the MARPOL exemption/mitigation formula almost verbatim for inclusion in Part

XII of 1982 UNCLOS on the Protection and Preservation of the Marine Environment. The resulting “sovereign” immunity clause in Article 236 of 1982 UNCLOS

stipulates that:

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 owner or operated by it, that such vessels or aircraft act in a manner

inconsistent, so far as is reasonable and practicable, with this Convention.

The origins of Article 236 can be traced to proposals submitted by Australia in

1973 during UNCLOS III. These were aimed at exempting warships from the provisions on the protection of the marine environment and based explicitly on the

immunity provisions of the 1954 OILPOL and 1972 London Dumping Conventions.88 Competing proposals were lodged by Canada, the USSR and the United

States. The Canadian text stated that the Convention should not apply to:

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. . . those vessels and aircraft entitled to sovereign immunity under international law

and continued with a phrase reflecting the substance of the Australian proposal.89 The text submitted by the USSR was more general and referred to the

existing immunity for such vessels and aircraft under international law, but without a mitigation clause, 90 whilst the U.S. proposal was akin to the Canadian

one.91

The proposed exemption clause was subsequently discussed in depth during

informal meetings. In 1974, the United States tabled a new proposal, visibly inspired by the MARPOL formula, which contained the elements of what would

become Article 236.92 The only criticism came from Tanzania, whose delegate

pointed out that:

(. . .) Since the issue under consideration was the prevention of pollution and not the

protection of ships, the draft articles should deal with the status rather than the nature of the

vessels in question.93

Subsequent texts produced as a result of informal negotiations confirm that the

issue under discussion was not merely immunity from jurisdiction, but a genuine

exemption from the substance of the provisions of the prospective convention regarding the protection and preservation of the marine environment.94

One of the main principles underlying Article 236 can be traced back to several

other articles of 1982 UNCLOS: principally Articles 30, 31, 32, 95 and 96. However,

the major difference between these articles and the stipulations of Article 236 is

that the former deal primarily with immunity from jurisdiction, whereas the latter goes much further and grants immunity from substantive provisions.

Although included in Part XII on the Protection and Preservation of the Marine Environment, Article 236 should be regarded as bearing on the entire

Convention, for the provisions regarding the protection and preservation of the

marine environment are scattered throughout the Convention.95 The end result

is that warships are exempt from the material applicability of the pertinent

rules.96

Apart from the all-important 1982 UNCLOS, the MARPOL formula has been borrowed, often verbatim, by a multitude of other treaties and instruments. It was

included, amongst others, in two important instruments concluded in the 1990s:

the International Convention on Oil Pollution Preparedness, Response and

Co-operation (OPRC Convention), 1990, Article 1 (3) and the Protocol on Environmental Protection to the Antarctic Treaty, 1991, Article 11 (1);

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In addition, the MARPOL formula forms part of practically all regional framework maritime treaties concluded under UNEP auspices over a period of more than

two decades.97 A prominent example is the Kuwait Regional Convention for

Co-operation on the Protection of the Marine Environment from Pollution, concluded in 1978 for the Persian-Arabian Gulf (Kuwait Regional Convention). It

was seen earlier98 that the applicability of this convention became contentious

during the 1980–1988 Iran-Iraq war in connection with the 1983 Nowruz Oil

Spill. Its exemption clause reads as follows:

Warships or other ships owned or operated by a State, and used only on Government

non-commercial service, shall be exempted from the application of the provisions of

the present convention. Each Contracting State shall, as far as possible, ensure that

its warships or other ships owned or operated by that State, and used only on

government non-commercial service, shall comply with the present Convention in

the prevention of pollution to the marine environment.99

The clause not only bears a strong resemblance to the MARPOL formula, both

the Kuwait and MARPOL Conventions deal in principle with the same subject

matter: pollution of the marine environment. There is consequently no reason to

believe that the respective immunity clauses would have a substantially different

meaning.

Finally, the MARPOL formula has been relied on by countries such as the

United States and the UK in “interpretative statements” made in respect of various instruments, including regarding environmental sectors other than the

marine environment.100

C. Environmental Implications in General. The exclusion of warships from

the substantive provisions of 1982 UNCLOS has been justified in the literature on

the following grounds: (1) Pollution regulations of a general character, including

international regulations, may be inappropriate to the special configuration or

mission of certain warships; (2) It was feared that coastal States, in the exercise of

powers to prevent and control pollution from foreign ships, could thereby acquire

leverage over warship passage in general and the passage of nuclear warships in

particular; a question regarding the compliance of a warship with a particular

standard might require the inspection or release of data regarding the ship, which

most flag States would be reluctant to disclose; (3) Warships were not considered

a substantial source of marine pollution, and because the rules of sovereign immunity would have restricted the possibilities of enforcement against the will of the

flag State in any event, there was no significant opposition to Article 236; (4)

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Moreover, given the political mission of naval vessels that operate far from their

home shores in peacetime, it would not be unrealistic to expect a high degree of

self-imposed environmental diligence by major flag States. 101

There is no question that the configuration and the mission of naval vessels

differ fundamentally from commercial vessels. Still, the single most important

reason why immunity clauses for warships are adopted centres on security issues.

States are extremely averse to allowing foreign nations access to their military

ships.102 In a position paper advocating adoption of 1982 UNCLOS, the U.S. Department of Defense articulated the rationale in this way:

[T]o support military operations around the globe, there must be assurance that military

vessels and their cargoes can move freely without being subject to levy or interference by

coastal states.

103

However, the amount of waste generated by such ships is far from trivial. Aircraft

carriers may house as many as 5,000 crew members.104 The United States owns over

2,000 vessels, including 600 Navy ships, with over 300,000 crew members. Each sailor

is estimated to generate approximately three pounds of garbage per day. Processing

and storing such huge quantities of waste presents a considerable challenge to navies.

This problem is exacerbated by the fact that military operations often require naval

vessels to remain at sea for prolonged periods of time, often conducting operations in

areas which lack adequate shore disposal facilities. 105

Because of the implications for marine pollution, the MARPOL/UNCLOS “sovereign” immunity clause has been the subject of severe criticism:

This serious derogation [the sovereign immunity clause] is not only irreconcilable with the rest

of the Convention, it is incompatible with the usual principles of immunity which provide

only for exemption from enforcement procedures, not from applicability of the law. [T]here is

no reason why government ships should not be governed by marine pollution rules.106

Although campaigns for the total abolition of the immunity of State-owned

ships were not unknown around the turn of the century,107 national and international public sentiment is now said to turn against such exclusions on

environmental grounds.108 Sweden spearheaded a recent effort to remove the immunity clause from the 1972 (London) Dumping Convention.109 However, the

new 1996 protocol to this convention proves that this was unsuccessful.110 On the

one hand, the protocol strengthens and updates environmental protection provisions through the introduction of principles such as “the polluter pays,” and

precautionary and preventive measures.111 On the other hand, the clause on

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immunity of public vessels, far from being dropped, was replaced by the following text:

Article 10 (4): This Protocol shall not apply to those vessels and aircraft entitled to

sovereign immunity under international law. However, each Contracting Party shall

ensure by the adoption of appropriate measures that such vessels and aircraft owned

or operated by it act in a manner consistent with the object and purpose of this

Protocol and shall inform the Organisation accordingly.

Article 10 (5): A State may, at the time it expresses its consent to be bound by this

Protocol, or at any time thereafter, declare that it shall apply the provisions of this

Protocol to its vessels and aircraft referred to in paragraph 4, recognising that only

that State may enforce those provisions against such vessels and aircraft.

The fourth subparagraph of the new protocol introduces only cosmetic

changes to the previous clause, but the fifth subparagraph makes it absolutely

clear that even if the convention’s substantive provisions are made applicable to

public ships, it does not entail a waiver by the flag State of jurisdictional

immunity.

In mitigation one should add that the second sentence of the MARPOL/UNCLOS

formula obligates Parties to use their best efforts to prevent pollution by public

vessels. Yet the widespread adoption of this sentence in many other international

instruments does not reveal the extent to which State Parties comply with this undertaking. Moreover, there are several built-in obstacles preventing such an

assessment. First, as noted above, unlike for the 1972 London (Dumping) Convention, there is no requirement for States Parties to report to the administrating

or depositary organisation on any implementation measures taken. The IMO has

virtually no organised means of monitoring compliance of military vessels and

has acknowledged that:

Since warships are outside MARPOL 73/78, we do not receive any information on the

national legislation for these ships. Even if it exists, information we do receive from time to

time is more in the form of research and development work, and this again from more informal

contacts rather than established procedure.112

Furthermore, the MARPOL/UNCLOS formula entitles State Parties to auto-determine what the “appropriate measures not impairing the operations or

operational capabilities” of excluded categories of ships are. Of course, there is

much force in the argument that this consequence is an essential part of sovereign

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immunity.113 Still, the lack of international schemes for monitoring, reporting

and control of compliance by public vessels has convinced some writers that the

second sentence of the formula in question is of academic value.114 Others indicate that the absence of international control will inevitably cause potentially

huge differences in implementation by State parties.115

On a more positive note, there is nonetheless increasing evidence of the application of national and international environmental standards to the military

sector, especially in industrialised States. At a meeting organized in 1995 by

UN/ECE and UNEP, many countries reported that their armed forces were, as a rule,

subject to national environmental standards and legislation.116 World-wide, the

military have been forced to study alternatives to ozone-depleting substances

which form part of many military applications. This is the result of the scheduled

phase-out of these substances following the protocols and amendments to the

1985 Vienna Convention which were discussed earlier.117 The military response

was partly motivated by a growing environmental consciousness within the sector, but also by the realisation that these chemicals would soon become either

unavailable or too expensive.118 NATO has organized two International Conferences on the Role of the Military in Protecting the Ozone Layer119 and has also

sponsored a Pilot Study on Defense Environmental Expectations to examine the

impact of military activities on the environment in general.120

To illustrate a point of interest to this study, the U.S. Navy is required by domestic law to comply with Annex V of MARPOL 73/78, which deals with different types

of garbage and specifies the distances from land and the manner in which they may

be disposed of. The requirements are much stricter in a number of “special areas,”

but the most important feature of the Annex is the complete ban imposed on the

dumping into the sea of all forms of plastic.121 As for international developments,

NATO’s Special Working Group Twelve, a technology-sharing collection of nations,

is striving to develop “The Environmentally Sound Ship of the Twenty-First Century.” In addition, in October 1994, representatives of 14 NATO navies and of

former Warsaw Pact navies met to discuss vessel-source pollution. 122

D. Environmental Implications during Armed Conflict. The most important question in view of the present inquiry is the following: what is the fate of

these environmental requirements when the country at issue is engaged in armed

conflict or other types of hostile activity?

An analysis of the environmental legislation applicable to the U.S. Navy indicates that there are indeed unspecified “peacetime” limits on the Navy’s

Environmental Program. The Navy is subject to the National Environmental

Policy Act (NEPA), which requires federal agencies to document the effects of

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their actions on the environment, including the marine environment, for any activity that would he considered a major federal action significantly affecting the

quality of the human environment.123 However, NEPA provides no express war or

national emergency exemption. Common sense indicates of course, that U.S.

commanders:

. . . should not be required to prepare an environmental impact statement for amphibious

assault, nor obtain a permit for whale harassment before conducting an attack on enemy

shipping.124

That NEPA does not apply to belligerent activities can be inferred from the text

of its provisions as well. For one, the bulk of the environmental legislation applicable to the Navy—and to other components of the U.S. armed forces—is limited

to military activities within U.S. jurisdiction.125 Furthermore, the preparation of

environmental documentation such as EIAs is not required for certain “categorical exclusions,” including “maintaining law and order.” There are also special

waivers related to “classified action” and “emergency actions.” The regulations

provide that if emergency circumstances make it necessary to take action without

observance of NEPA requirements, the agency should consult the Council on Environmental Quality.126 It appears that during Operation Desert Storm, the U.S.

Department of Defense did in fact consult with this Council regarding pursuit of

various emergency military requirements in the United States without full NEPA

compliance. 127

Whilst NEPA contains only implicit peacetime limits for domestic military operations, there are express limits for U.S. military activities abroad. For the latter

type of activities, the major piece of legislation is Executive Order 12144, entitled

“Environmental Effects Abroad of Major Federal Actions.”128 It applies to the

“global commons,” defined as the geographical areas outside the jurisdiction of

any nation, and to areas (land, water, and airspace) under the jurisdiction of one or

more foreign governments. Its stated objective is to further foreign policy and national security interests “while at the same time taking into consideration

important environmental concerns.”

If a “major federal action” is determined to do significant harm to the environment of a foreign nation or to a protected global resource, the Executive Order

requires as a general rule that a prior environmental study, an environmental review, or an environmental impact statement be prepared and conducted. As with

operations within U.S. jurisdiction, some of these requirements may be waived,

postponed or mitigated in case of “emergencies” and “classified actions.” But in

addition to this, the Executive Order expressly exempts a wide range of

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(hostile/military) operations and activities related to the U.S. national security

from its provisions: from actions related to armed conflict (encompassing officially declared wars and other types of hostilities), actions affecting the national

security or the national interest, to intelligence activities, arms transfersetc. Additional case-by-case or class exemptions may be added to this list by the

Department of Defense because of “emergencies, national security considerations, exceptional foreign policy requirements, or other special circumstances

which preclude or are inconsistent with the preparation of environmental documentation and the taking of other actions prescribed” by the Order. An example

of such case-by-case exemptions are “actions that must be taken to promote the

national defense or security and that cannot be delayed.” Therefore, the conclusion must be that there are indeed peacetime limits to the U.S. Navy

Environmental Program.

These limitations to the environmental obligations incumbent on the Navy

are supported by the qualifying language of the MARPOL exemption clause. Accordingly, a Party may determine for itself which measures—comparable or

equivalent to the MARPOL provisions—apply by analogy to its naval vessels, “so far

as is reasonable and practicable” and taking into consideration the “operations or operational capabilities of such ships.” “Operations” in relation to naval vessels is a

term with a clear military connotation: it is barely coded language that may encompass military activities executed in a hostile environment, as is the case

during armed conflict. Consequently, the phrase “operations or operational capabilities of such ships” is a crucial qualifying condition which defines and limits

the scope of the MARPOL mitigation clause to unspecified peacetime military activities. It seems therefore correct to state that:

One cannot but conclude that the second sentence leaves the protection of the environment

legally subordinated to operational demands in times of peace and military necessities in times

of naval war.129

As with the war suspension clauses that were examined in the previous chapter, the MARPOL clause does not point to any automatic—ipso facto—effects of the

outbreak of armed conflict on the treaty. However, it does suggest that it is within

a Party’s own, sovereign judgement to decide which of the MARPOL (or comparable national) provisions may be affected by the outbreak of armed conflict. Given,

however, that the integration of environmental concerns into military actions is

still in its infancy in many States, much may depend, ultimately, on the judgement of an individual commander. A recent study made available by the U.S.

military uncovered a real void in military environmental planning. The report,

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which was limited to an examination of environmental policy for operations other

than war (OOTW), acknowledges that a legal basis for such a policy is currently

lacking in the United States. Its author concludes that most environmental laws

affecting the U.S. military are primarily designed for use at the installation level

and are closely linked with local civilian environmental standards. Faute de mieux,

these peacetime environmental standards have been used in environmental annexes in the Operations Plans of U.S. “peace” military operations in Somalia,

Haiti, and the former Yugoslavia. They are, nevertheless, regarded as too restrictive for use across the full spectrum of military operations. On the other hand, the

report’s author asserts that the laws of war do not provide an appropriate level of

environmental protection during operations short of war. As a result, there is a

grey area in which the application of environmental law is currently being left to

the discretion of the individual commander.130

A final observation is that like the many war suspension clauses discussed before, the phrase “operations or operational capabilities of such ships” constitutes

rather unsophisticated language from a jus ad bellum perspective. There is no distinction between, e.g., legal actions taken in self-defence and operations

conducted to pursue illegal aggression in violation of Article 2 (4) of the UN

Charter.

6.2.6. (Civil) Liability Conventions

• (Paris) OECD Convention on Third Party Liability in the Field of Nuclear Energy, 1960

• Convention on the Liability of Operators of Nuclear Ships, 1962

• (Vienna) Convention on Civil Liability for Nuclear Damage, 1963

• International Convention on Civil Liability for Oil Pollution Damage, 1969

• International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage, 1971

• Convention on the Early Notification of Nuclear Accidents, 1986

• Convention on Assistance in the Case of a Nuclear Accident or Radiological

Emergency, 1986

• Convention on Civil Liability for Damage Caused during Carriage of Dangerous

Goods by Road, Rail and Inland Navigation Vessels, 1989

• International Convention on the Carriage of Hazardous and Noxious Substances

by Sea (HNS), 1996

• Protocol to Amend the 1963 Vienna Convention, 1997

• Convention on Supplementary Compensation for Nuclear Damage, 1997

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Since the maritime “civil liability” conventions have been largely modelled on

the schemes set up for the nuclear industry, it would seem appropriate to start the

analysis with the latter conventions.

A. The 1960 Paris Convention and the 1963 Vienna Conventions. The

1960 Paris OECD and the 1963 Vienna IAEA Conventions apply in the first instance

to land-based nuclear installations, broadly defined as encompassing reactors, reprocessing, manufacturing and storage facilities where nuclear fuel, nuclear

material, and radioactive products or waste are used or produced.131 In addition,

both conventions also apply to the transport of nuclear material and to the handling of nuclear waste.132

Despite the lack of express exclusion provisions to that effect, it is accepted

that neither convention applies to military installations.133 This is supported by

the tenor of the preamble of both conventions, which emphasises their civilian

and “peaceful” rationale. Furthermore, as seen earlier,134 both conventions exonerate operators from liability for damage directly caused by armed conflict,

hostilities, civil war, and insurrection.135

As far as the Vienna Convention is concerned, the above conclusion is confirmed a contrario by the discussions held from ’90 to ’94 within the IAEA’s

Standing Committee on Liability for Nuclear Damage. One of the areas up for

discussion was precisely the proposed extension of the convention to military installations.136 The result of these discussions are contained in two new

instruments concluded in 1997. According to Article IB of the new 1997 Protocol,

the 1963 Vienna Convention:

. . . shall not apply to nuclear installations used for non-peaceful purposes.

A similar term is used in Article II (2) of the new Convention on Supplementary Compensation for Nuclear Damage, the scope of which extends to:

. . . nuclear damage for which an operator of a nuclear installation used for peaceful

purposes situated in the territory of a Contracting Party is liable. . . .

What is meant by “peaceful purposes” is open to interpretation. It will be remembered that this expression is also used in 1982 UNCLOS. The majority

understanding in regard to the latter is that the clause prohibits only military activities in violation of Article 2(4) of the UN Charter.137

However, the phrase “(non-) peaceful purposes” may have a different meaning

in the above IAEA instruments. It seems that these terms were agreed early on

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within the Standing Committee. Although no official interpretation is available,

there are reasons to believe that the term “non-peaceful purposes” was used to refer to so-called dual-use facilities and therefore has a broader meaning than

“military installations.” 138 If this interpretation is correct, it would mean that instead of extending coverage to military installations as well, the new instruments

will end up narrowing the field of application of the nuclear liability conventions

by excluding dual-use (military/civilian) installations.

The recent interest for the application of the Vienna Convention to military installations arose as a result of the serious difficulties experienced during the

negotiation of two IAEA Conventions in response to the 1986 Chernobyl nuclear

disaster.139 During the negotiation of the 1986 Convention on the Early Notification of Nuclear Accidents and the Convention on Assistance in the Case of a

Nuclear Accident or Radiological Emergency, the nuclear superpowers disagreed

sharply over whether these should apply to accidents involving military facilities

and military activities. Deadlock was only narrowly avoided by agreement over a

text which does not expressly mention military and civilian installations or activities, but which distinguishes instead between accidents for which notification is

mandatory and those for which notification is voluntary. In accordance with this

compromise, Article l(2) of the Notification Convention lists facilities and activities which are subject to the mandatory notification provisions, which are widely

understood to represent civilian facilities and applications. Apart from this, in accordance with Article 3, State Parties have the opportunity to notify “nuclear

accidents other than those specified in Article I.” This compromise reportedly met the

wishes of the nuclear powers on the division of military and civil matters. In addition, some nuclear weapon States have made declarations to the effect that they

are prepared to use Article 3 in order to notify releases caused by accidents involving nuclear weapons and nuclear weapons tests. Nonetheless, since most of these

declarations stress the “voluntary” character of such undertakings, it is debated

whether State Parties are under a positive legal duty to notify accidents related to

military activities or military installations.140 The USSR is thus far the only State

to have notified two accidents involving military nuclear submarines.

B. The 1962 Nuclear Ships Convention. The text of the 1962 Nuclear Ships

Convention (NS convention) was agreed as a result of negotiations conducted

during the 11th session of the Diplomatic Conference on Maritime Law, held in

Brussels from 17-29 April 1961. However, major disagreements over several

points in the draft text prepared by the Comité Maritime International (hereinafter

Comité) and the IAEA, made it necessary to reconvene the Conference on 14 May

1962 for the sole purpose of dealing with nuclear ships. The final act of the NS

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Convention was eventually opened for signature on 25 May, after it had been

adopted with a mere 28 votes in favour, 10 against (amongst which were the

United States and the USSR), four abstentions and with eight of the fifty participants absent at the time of the final vote.141

The incorporation of nuclear warships into the NS Convention continues to

remain a divisive issue: it is the principal reason why, more than 30 years after its

negotiation, not a single licensing State has ratified the convention, thereby preventing its entry into force.142 The arguments in favour of the inclusion of these

warships into the convention were primarily of practical nature:

• It was expected that for years to come the large majority of nuclear ships

would be military ships; the ratio in 1960 was 30:2 and would increase to

much higher levels by the end of the decade;

• It was argued that nuclear propulsion represented a real hazard and that the

public needed protection against nuclear warships as well; 143

The contrary views were of a more legal, technical, and even ideological nature.

The objectors maintained:

• that rules concerning warships are a matter of public international law since

any accident involving these will engage primarily the public, international

responsibility of States; that such rules have no place in a convention on private civil liability;

• that if warships would be covered, the resulting limitation of liability would

encourage the use of nuclear warships;

• that coverage of warships by the Convention might presage an attempt to

impose other types of regulations (safety, international inspection and licensing) on these military ships, which would be wholly unacceptable;

• that no treaty sponsored even in part by the IAEA may relate to any military

use of nuclear energy;144

The warships question was raised relatively late during the negotiations and

led to an extraordinary coalition between the two principal Cold War foes. During

the preparatory stages of the Convention, the United States had pushed strongly

for the inclusion of warships, but at the Conference itself, the United States delegate declared that he was no (longer) authorised to do so.145 The United States

and the USSR faced a solid block of opposition led by the UK and formed from delegations from all continents and ideologies.146 In an attempt to appease the two

major nuclear powers, the conference agreed on two concessions: one on the

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maintenance of liability insurance, the other on the question of jurisdiction.

First, Article III.3 provides that the States operating nuclear warships, as well as

any other ships operated directly by a Contracting State or by any constituent

subdivision thereof, need not maintain any insurance or other coverage.147 The

second conciliatory gesture was that, whereas according to Article X. 1, primary

jurisdiction lies at the option of the claimant, either in the courts of Licensing

State or of the Party in whose territory the damage was sustained. If the claim is in

respect of a warship, resort must be had exclusively to the courts of the Licensing

State (X.3).

Writing in the beginning of the 1970s, Professor Szasz noted that the hesitation of the United States to ratify the convention related solely to the question of

warships, presumably reflecting the views of the U.S. Navy.148 Likewise, during

the negotiation of the 1969 CLC and Intervention Conventions, the Russian delegate warned against repeating the failed experiment of the NS Convention.149

Nevertheless, the compromise which was pioneered in the 1962 Convention—

i.e., incorporation of a waiver of sovereign immunity related to State vessels, combined with an exemption for liability coverage and jurisdiction—has re-emerged

in other civil liability conferences. Apart from those related to the maritime sector, which will be discussed below, it also inspired the negotiations for the 1989

UN/ECE Convention on Civil Liability for Damage Caused during Carriage of

Dangerous Goods by Road, Rail and Inland Navigation Vessels (hereinafter CRTD

Convention).150 Although this convention does not appear applicable to military

premises or installations,151 it expressly covers cases in which the carrier is a State

Party or any constituent part of a State. In furtherance of Article 16 (1) to (4), however, contracting Parties may provide that State carriers shall be dispensed from

the obligation to cover their liability by insurance or other financial security.

C. The 1969 Civil Liability Convention. The Brussels Conference, at which

both the 1969 Intervention Convention and the Civil Liability Convention (hereinafter CLC) were negotiated, had before it the draft texts prepared by the IMCO

Secretariat. The draft articles for the CLC contained a substantive exoneration

clause for warships or other ships owned or operated by a State and used for the

time being, only on government non-commercial service.152

This proposal elicited several comments and amendments revealing widely

different views on the matter. With the support of other countries, Norway argued

that the CLC should contain no such exception, asserting that the purpose of the

convention—ensuring that adequate compensation would be available to persons

who suffer damage caused by the escape of discharge of oil from ships—applied as

much with regard to warships and State-owned ships as to merchant ships.

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Nevertheless, the Norwegian government was willing to consider an exception to

the provisions on compulsory insurance and jurisdiction, modelled on the compromise achieved at the 1962 NS Convention.153 Similarly, the UK government

commented that there was no justification for the exoneration proposed by IMCO,

adding that these ships might need to be exempted from the provisions on jurisdiction. In any case, the UK did not think that the issue was likely to affect

genuine warships, since they did not carry oil in bulk as cargo.154

Japan and the United States did not object to the IMCO proposal as such, but

wished to add a special provision by which State parties would waive jurisdictional immunities with regard to State-owned or State-operated ships used for

commercial purposes.155

However, during the discussions in the conference committee, most delegations

warned that there had been many difficulties in the past with subjecting warships to

the substantive provisions of conventions. The declaration made by Mr. Zhudro of

the Soviet delegation was characteristic for this school of reluctant States. He

pointed out that State-owned ships were already exempted under several conventions; that it should be borne in mind that the prospective convention would

necessarily be linked with the liability provisions of the 1957 and 1924 Conventions, neither of which applied to warships; that attempts to extend the provisions

on the Liability of Operators of Nuclear Ships to warships and State-owned ships

had led to the failure of the 1962 NS Convention, which not a single State had ratified, and that this unfortunate experience should not be repeated.156

The Norwegian amendment was subsequently rejected by 19 votes to 10 with

12 abstentions.157 By contrast, there was a much clearer majority of delegates in

favour of waiving sovereign immunity in regard to State-owned or State-operated

ships used for commercial purposes. An amendment to that effect was carried 28

to 6 with 7 abstentions, over strong objections by the USSR.

158 The text (Article

XI), finally agreed on, reads as follows:

(1) The provisions of this Convention shall not apply to warships or other ships

owned or operated by a State and used, for the time being, only on Government

noncommercial service;

(2) With respect to ships owned by a Contracting State and used for commercial

purposes, each State shall be subject to suit in the jurisdictions set forth in Article IX

and shall waive all defences based on its status as sovereign State.

D. The 1971 IOPC Fund Convention. As had been the case for the 1969 CLC,

the IMO Secretariat proposed excluding coverage for oil pollution damage caused

by warships from the IOPC Fund Convention.159 The proposal to exonerate the

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Fund from liability for damage caused by armed conflict or natural phenomena of

an exceptional character was hotly debated at the conference.160 By contrast, the

exemption provision relating to warships and other State-owned ships was accepted without discussion. The final provision (Article 4(2)) reads as follows:

The Fund shall incur no obligation under the preceding paragraph if: a) it proves

that the pollution damage resulted from an act of war, hostilities, civil war or

insurrection or was caused by oil which has escaped or been discharged from a

warship or other ship owned or operated by a State and used, at the time of the

incident, only on Government non-commercial service.

Use of the terms “escape” and “discharge” clearly indicates that both accidental and non-accidental releases are excluded from coverage when caused by these

State-owned vessels.

E. The 1971 Convention on Maritime Carriage of Nuclear Material. This

1971 Convention does not contain an express exoneration clause for warships and

other State-operated or State-owned ships. Yet, apart from arguments derived

from general international law, there are several legal-technical reasons implied

in the treaty itself pointing to such an exemption, As explained previously, the

convention was concluded to unlock serious problems that had arisen for the maritime transport of nuclear material since the conclusion of the Paris Convention

and Vienna Conventions. According to an OECD report on the matter, commercial

transport of such material had virtually come to a standstill because of the indemnity coverage requested by the commercial carriers. Nuclear operators had to rely

on transport by air, or wait instead for a warship to be made available.161 Seen

against this background—reflected in the preamble of the 1971 Convention—it is

clear that the latter was intended to deal with private, commercial transport of nuclear material and not with warships. Secondly, the wording of Article 1

demonstrates that the provisions of the 1971 Convention should be interpreted in

conjunction, inter alia, with both the Paris and Vienna Conventions:

Any person who by virtue of an international convention or national law applicable

in the field of maritime transport might be held liable for damage caused by a

nuclear incident. . . .

Therefore, any defence under the established (civil) nuclear liability régimes

will by analogy be available under the 1971 Convention as well. As was explained

above, it is commonly assumed that neither the Paris nor the Vienna Conventions

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applied to military installations and activities. The two new instruments concluded in 1997 appear to have confirmed this and extended the exclusion to

“dual-use” installations.162

F. The 1996 HNS Convention. Almost two decades after it was first planned,

the International Convention on Liability and Compensation for damage in connection with the carriage of Hazardous and Noxious Substances (HNS) by sea, was

finally adopted in 1996 under IMO auspices. It was only at a very late stage, in

1991, that the first proposals on State-owned ships surfaced within IMO’s Legal

Committee.163 It would soon become clear that some delegations were of the view

that sovereign immunity of State-owned ships was satisfactorily regulated by general international law and domestic law, whereas others thought that the HNS

Convention could usefully contribute to achieve uniformity and consistency in

this area.

The Committee’s first draft was strongly inspired by the civil liability regimes

for oil pollution damage, and based on the relevant provisions of the 1969 CLC and

1971 Fund Conventions.164 These proposals were immediately criticised on several grounds. One delegation considered the provisions superfluous on the

ground that it was adequately regulated by Article 96 of 1982 UNCLOS. However,

another delegation pointed out that the paragraph might still be of use in the case

of States not party to 1982 UNCLOS. Other delegations voiced their preference for

the wording of Article 4 of the 1989 Salvage Convention,165 claiming that this

represented a more recent formulation of the sovereign immunity doctrine.166

Mexico insisted that the exoneration provision should be amended so as to include a recommendation to States “when reasonably possible,” to endeavour to

ensure that such ships do not hinder the application of this convention.167

Discussion of the issue was resumed at the Legal Committee’s 66th session in

March 1992, on the basis of alternative proposals tabled by the United States and

Mexico. The new texts were based on provisions borrowed from Article 4 of the

1989 Salvage Convention and Article 236 of 1982 UNCLOS. The draft was thoroughly amended and discussed during subsequent sessions at which it became

clear that some delegations still held opposite views on the matter. Some regarded

a detailed regulation of the matter desirable to promote uniformity and consistency on the matter of sovereign immunity in the field of maritime law, others

claimed that the issue of a possible waiver of sovereign immunity was a matter of

domestic law.168

After still more discussions,169 agreement was eventually reached within the

Legal Committee on a version combining elements of three previous conventions: 1969 CLC, 1989 Salvage Convention and 1982 UNCLOS.

170 This latest

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proposal formed the basis of the provision finally accepted by the 1996 Conference. Article 4 reads in relevant part as follows:

(4) Except as provided in paragraph 5, the provision of this Convention shall not

apply to warships, naval auxiliary or other ships owned or operated by a State and

used, for the time being, only on Government non-commercial service.

(5) A State Party may decide to apply the Convention to its warships or other vessels

described in paragraph 4, in which case it shall notify the Secretary-General thereof

specifying the terms and conditions of such application.

(6) With respect to ships owned by a State Party and used for commercial purposes,

each State shall be subject to suit in the jurisdictions set forth in article 38 and shall

waive all defences based on its status as a sovereign State.

The exemption clause for the “Fund” part of the convention was never challenged, and covers accidental and non-accidental releases. Final Article 14 (3) (a)

exempts the Fund when it proves that:

. . . the damage was caused by hazardous and noxious substances which had

escaped or been discharged from a warship or other ship or owned or operated by a

State and used, at the time of the incident, only on Government non-commercial

service.

6.2.7. Intervention Series

• International Convention Relating to Intervention on the High Seas in Cases of

Oil Pollution Damage, 1969

• Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution

by Substances other than Oil, 1973

A. The 1969 Intervention Convention. The 1969 Intervention Convention

was adopted under IMCO auspices by the International Legal Conference on Marine Pollution Damage, 1969. This was held in the wake of the 1967 Torrey

Canyon disaster, in which a Liberian-registered tanker, stranded outside British

territorial waters near the Scilly Isles, was seriously polluting beaches in

Cornwall, Devon, the Channel, and Brittany. The UK took unprecedented action to protect its interest: it employed military aircraft which used rockets and

napalm to bomb and destroy the vessel and to set fire to the oil. Naval forces as

well carried out extensive spraying of the oil slick with chemicals and by mechanical means.171

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One of the main purposes of the 1969 Conference was to clarify the measures which coastal States may take in similar circumstances. Without

passing direct judgement on the UK actions, the conference parties were able

to reach agreement on the conditions and modalities of the right of intervention by coastal States with respect to certain maritime casualties occurring

on the high seas. In the case of a maritime casualty, defined in the Convention as:

...a collision of ships, stranding or incident of navigation, or other occurrence on

board a ship external to it resulting in material damage or imminent threat of

material damage to a ship or cargo.172

State Parties to the 1969 Convention:

may take such measures on the high seas as may be necessary to prevent, mitigate or

eliminate grave and imminent danger to their coastline or related interests from

pollution or threat of pollution of the sea by oil. . . .173

Furthermore, the terms “related interests,” which a coastal State may take into

account, include conservation of living marine resources and of wildlife.174

However, before taking the measures deemed necessary, and unless extreme

urgency requires otherwise,175 the coastal State is obligated to notify and consult

other affected States, including the flag State as well as independent experts

drawn from an IMCO list.176 Furthermore, any measures taken by the coastal State

will need to be proportionate to the damage actual or threatened to it, and may not

go beyond what is reasonably necessary to achieve the purpose laid down in Article I.177 Any Party which causes damage by contravening the provisions of the

Convention is liable to pay compensation.178

The Conference parties had before it a draft text which was the outcome of almost two years of discussions within IMCO’s Legal Committee. The resulting

draft included in Article I an explicit but partial waiver with respect to

State-owned ships, as follows:

However, no measures shall be taken under this Convention against any warship or

other ship owned or operated by a State and used for the time being only on

government non-commercial service.179

This draft exemption clause was objected to on several grounds:

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• Since the purpose of the convention was to deal with measures in case of

(oil) pollution casualties, no ship should be allowed to escape the convention by a virtue of its special status or ownership;180

• A blanket prohibition to take measures against the ships mentioned in the

clause would only be acceptable if the coastal State had an undisputed right

of recourse to the flag State (quod non);181

• In a Resolution on the subject adopted by the Institut at its session at Edinburgh on 12 September 1969, all oil tankers had been excluded from an

otherwise identically worded warship exemption clause;182 Ghana subsequently lodged an amendment with the IMCO conference in this

sense;183

• Some delegations were dissatisfied with IMCO’s proposal to exempt certain

State-owned ships in addition to warships. The Italian delegation considered it arbitrary and tabled an alternative proposal according to which no

measures would be allowed “against any warship or other ship owned by a

State and used to carry oil for military purposes”;184 Other intervenors also

thought that the IMCO proposal seemed to place the burden of proof unfairly

on the coastal State;185

• Norway regarded the draft clause as ambiguous and proposed a separate article to exempt warships and other State-owned ships—used for the time

being on government non-commercial service—from the scope of the convention altogether;186

However, after extensive debate, none of the above views carried the day. The

Norwegian proposal was not put to the vote, because it was felt that it might imply

that warships could not be used to prevent or eliminate pollution of the sea.187 All

other proposals were rejected by substantial majorities.188 The views held by majority can be summarised as follows:

• The USSR and other Eastern Block countries invoked general international

law, which in their view left no room for doubt: warships could not be made

subject to the jurisdiction of another State; furthermore, the proposal to exempt measures against State-owned ships used on non-commercial service

was similar to Article 9 of the 1958 Geneva Convention on the High Seas.

The USSR added that it “would be a political error to grant immunity exclusively to warships, since the conference would give the impression of

favouring warlike interests”;189

• Sweden, Germany and Poland appealed to “realism” and pointed out that

all conventions made exceptions for warships and State-owned ships,

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and that hence many countries would oppose the deletion of the exemption;190

• Finally, the Chairman of IMO’s Legal Committee assured delegates that the

proposed exemption was the outcome of two long years of thorough discussion and research, during which, all legal aspects of the problem had been

considered.191

The final provision (Article l(2)) reads in relevant part as follows:

However, no measure shall be taken under the present Convention against any

warship or other ship owned or operated by a State and used, for the time being, only

on government non-commercial services.

B. The 1973 Protocol. The 1973 Protocol to the 1969 Intervention Convention,

as its title indicates, was concluded to establish a right of intervention by coastal

States for marine casualties on the high seas involving marine pollution by substances other than oil. It was adopted by the same international conference that led to

the 1973 MARPOL Convention.192 On the question of warships and other State-owned

ships, IMCO proposed that the Conference adopt the same solution as agreed in 1969

for oil pollution casualties.193 This proposal did not encounter any opposition. The

relevant article was adopted by forty votes to none, with six abstentions.194

C. Conclusions Regardinq the Intervention Series. From the views that

prevailed during the preparation of the 1969 Conference, it is clear that the nature

of the agreed exemption clause relates only to jurisdictional immunity. What the

drafters of the convention wanted to prevent at all cost was establishing a right of

intervention or interference on the high seas by a coastal State with regard to vessels

and property owned by a foreign State. Protests that this would be unfair to coastal

States, especially since there was no general right of recourse to the flag State, fell on

deaf ears. Another “progressive” view that was aired but quickly dismissed during

the conference was that pollution and environmental considerations should outweigh conservative misgivings based on sovereign immunity. Whether these views

have undergone change in later IMO conventions will be examined below. On the

other hand, it is now accepted that the right of intervention by coastal States beyond their territorial sea has become part of customary international law.195 The

1969 Convention has been widely ratified, and similar provisions can be found in

Article 221 of 1982 UNCLOS and, as will be seen below, in the 1989 Salvage and the

1990 OPRC Conventions.196 Moreover, there have been no serious disputes in practice involving coastal States’ rights of intervention.197

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Finally, since the type of immunity agreed in the 1969 Convention and the

1973 Protocol is of a pure jurisdictional nature, it is impossible to draw conclusions on the fate of the convention and its protocol during war/armed conflict on

the basis of the exemption clauses alone.

6.2.8. Salvage

• Convention for the Unification of Certain Rules of Law relating to Assistance

and Salvage at Sea, 1910

• 1926 International Convention for the Unification of Certain Rules relating to

the Immunity of State-owned Vessels, 1926

• International Convention for the Unification of Certain Rules relating to Assistance and Salvage of Aircraft or by Aircraft at Sea, 1938

• Montevideo Treaty on International Commercial Navigation Law, 1940

• Protocol to Amend the Convention for the Unification of Certain Rules of Law

relating to Assistance and Salvage at Sea, 1967

• International Convention on Salvage, 1989

A. The 1910 Salvage Convention. On September 23, 1910, two conventions

were signed in Brussels at a Conference convened under the auspices of the

Comité: one establishing uniform provisions on rules relating to collisions, the

other relating to salvage. The initiative for a convention on salvage rules dated

back from 1885 and was discussed at three international conferences before the final text could be agreed on.198

Pursuant to Article 14, the Convention does not apply to ships of war and government ships appropriated exclusively to a public service. While there is little

trace of any substantive discussion in the conference records, the exemption became the subject of divergent interpretations after the conclusion of the treaty.

Although Article 14 does not distinguish between salvage services rendered by or

to the exempted categories of ships, it was suggested that the article would not exclude application of the convention to services rendered by warships.199

Such views were firmly rejected by Dutch commentator Wildeboer, on the following two grounds: 1) At the time the 1910 Convention was negotiated, the

question of whether warships were entitled to salvage remuneration at all, was

heavily debated amongst scholars; 2) Article 14 reflects a simple truth: the convention was intended to regulate matters of private maritime law and not matters

of public international law. In particular, Article 14 does not state that no salvage

awards can be obtained for services rendered to a ship belonging to the excluded

categories, but neither does it state that such ships would not be entitled to a salvage

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reward for salvage services rendered.200 Wildeboer maintained that all that can be

derived from Article 14 is that no salvage award could be claimed for services rendered to or by the excluded categories of ships on the basis of the convention. It was

up to the domestic law of the contracting Parties to regulate instances involving

public vessels. This account concurs with the comments made by a French

writer.201

B. The 1967 Protocol. On May 27, 1967, a protocol amending the 1910 Convention was adopted at a Diplomatic Conference convened in Brussels at the

initiative of the Comité. Its sole purpose was to introduce a new provision202 completely reversing Article 14. In furtherance of the first paragraph of Article 1 of the

protocol, the 1910 Convention also applies to assistance or salvage services rendered to or by ships of war and other State-owned or State-operated ships. The

second paragraph stipulates that claims for salvage awards rendered to such ships

shall only be brought in the courts of the State concerned, whereas according to

the third paragraph, State parties have the right to determine to what extent the

duty to render assistance laid down in Article 11 of the main convention applies to

the State-owned ships in question

The reason for this striking reversal is that Article 14 of the 1910 Convention

had reportedly become outdated; by the 1960s, salvage rewards could be obtained

in most countries for services rendered to the previously excluded categories of

ships.203 This change was reflected in various international instruments concluded since the beginning of the century. In accordance with these, State parties

agreed to waive their jurisdictional immunity in part, in regard to claims involving assistance and salvage services rendered to public ships.204

It is noteworthy that the 1967 Brussels Protocol differs from these instruments

in that it also deals with the question of salvage services rendered by warships and

other State-owned ships. This issue was addressed at the Comité’s Rijeka Conference in 1959, at which proposals for modification of Article 14 were discussed.205

Subsequently, the conference passed a resolution on the matter which stipulates,

inter alia:

When a ship of war or any other ship owned or operated by a State or a Public

Authority has rendered assistance or salvage services, such State or Public Authority

has liberty to claim remuneration but only pursuant to the provisions of the

Convention.

If such is the meaning underlying Article 14, as amended by the 1967 protocol,

it involves a significant change in the scope of the rules on sovereign immunity

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for State parties to the 1967 protocol. Indeed, in addition to a (partial) waiver of

their jurisdictional immunities in regard to salvage services rendered to

State-owned ships, parties to the Protocol would thus undertake to subject their

ships to the substantive rules of the treaty regarding salvage services and remuneration by such ships.

The last paragraph of Article 1 of the 1967 protocol modifying Article 14 of the

1910 Convention confirms the view expressed above;206 namely, that Article 11

on the duty of shipmasters to render assistance to all persons in danger at sea, even

if they are enemies, does not allow for any conclusions on the application of the

1910 Convention between opposing belligerents in time of war. Indeed, the meaning of the last paragraph of Article 1 can be traced to a sentence in the above

mentioned Rijeka resolution which reads:

The High Contracting Parties reserve themselves the right of fixing the conditions

in which Article 11 will apply to Masters of ships of war.

This phrase demonstrates that what Article 11 was meant to address was the

universal moral duty incumbent on any master of a “civilian ship” to render assistance to persons in need, a duty which held good in times of war. Finally, it should

be noted that the 1967 protocol has received only a moderate following. It took ten

years to receive the required five instruments of ratification or accession necessary for its entry into force207 and has at present barely 10 State parties.208

C. The 1989 Salvage Convention. Following the 1978 Amoco Cadiz disaster,

the subject of the shortcomings of the international law on salvage was placed on

IMCO’s agenda at the insistence of France.209 In March 1979 the Comité offered to

assist IMCO in the preparation of a new draft convention. The offer was accepted

and the Comité adopted a draft at its 32nd Conference held in Montreal in 1981.

The proposal was then submitted for consideration by IMCO’s Legal Committee at

its 46th session held the same year.210

The 1989 Convention differs from the 1910 Convention in many respects. One

of these differences was already highlighted, namely the explicit incorporation of

financial incentives to minimise or reduce environmental pollution into the salvage award.211 Furthermore, the 1910 Convention regulates matters generally

considered as belonging to the sphere of private maritime law and is concerned

only with the contractual relationships between the salvor, the master of the ship,

and the owner of the property. In contrast, the 1989 Convention is not only concerned with these relationships but adds to the international law of salvage a

substantial body of rights and duties that belong to the sphere of public

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international law. The most conspicuous innovations, apart from the

above-mentioned financial incentives, are the explicit duty of the salvor, master

and the owner to exercise due care to prevent or minimise damage to the

environment212 and the explicit recognition of the rights of coastal States “to take

measures in accordance with generally recognised principles of international law

to protect its coastline or related interests from pollution,” including the right to

give instructions to the salvor.213

The conference records of the 1989 Convention are of particular interest for

the evolution of the concept of immunity and its application to maritime conventions. During the preparatory work in IMO’s Legal Committee, the provisions

touching on sovereign immunity were extensively debated by government delegates. The ensuing declarations and the provisions of the treaty itself constitute in

many respects among the most recent evidence of treaty practice and opinio juris

on the subject.

The 1981 draft by the Comité, which served as a basis for discussion by

IMCO/IMO, followed the 1910 Convention in exempting from the scope of the

convention:

. . . warships or other vessels owned or operated by a State and being used at the time

of the salvage operations exclusively on governmental non-commercial services.214

In its commentary to this provision, the Comité noted that whilst such

State-owned ships had been excluded from the 1910 Convention, the situation was

reversed by the 1967 Brussels Protocol. However, the Comité felt that in view of the

rather limited acceptance of the latter instrument, the new Convention should not

deal with these issues, which should instead be left for separate regulation.215

The question of the status of warships and other State-owned vessels led to divergent views from the very moment that IMO’s Legal Committee commenced the

in-depth study of the Comité’s draft. During its 52nd session in 1984, and subsequent sessions up to the 56th, several delegates argued that they saw no reason why

these ships should not be subject to the ordinary rules on salvage, while others

wanted to allow an option for States to apply the provisions of the draft if they saw

fit. Still other delegates wanted to broaden the exemption to include government-owned non-commercial cargo as well. The Comité’s draft was also criticised

for failing to distinguish between instances where State-owned ships rendered

salvage services and those where salvage services were rendered to such ships, and

for not dealing with the question of State-owned cargoes transported on commercial ships. Finally, some delegates thought that the matter should be left out from

the convention altogether, claiming that the question of immunity should either

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be dealt with by a special convention on the subject or by the laws of the individual States. Others drew attention to the fact that the matter of sovereign immunity

was being studied by the ILC.

216

The first genuine alternatives to the Comité’s draft were proposed in 1986 during the 56th session of IMO’s Legal Committee, during which three alternatives

were proposed. According to the first one, a State party may stipulate in its national legislation that the convention shall not apply to warships and other

State-owned ships either for services rendered to such ships or for services rendered by such ships. The State would be required to notify the depositary of such

an exemption. According to the second alternative, a State party wishing to apply

the convention to public ships would be required to so notify the depositary. In furtherance of a third alternative, the convention would contain a provision

extending the scope of its application expressis verbis to salvage services rendered

to warships and other enumerated State-owned ships, whilst States would have to

notify the depositary should they wish to apply the convention to State-owned

ships beyond that.217

Shortly thereafter, a further proposal was submitted to the Legal Committee’s

57th session, according to which the convention would not apply to “property

owned, possessed, shipped or controlled by a State and not in use or intended for

use for commercial purposes.”218 The United States in particular warned that failure to specifically exclude governmental non-commercial cargo would have a

significant impact upon traditional principles of sovereign immunity. She accepted that the application of the convention to government-owned commercial

cargo was entirely appropriate, but argued that application to non-commercial

cargo interfered with vital government functions and would be inconsistent with

current international and U.S. national law.219

The report on the Legal Committee’s 57th session shows that most delegates

were concerned that extending the scope of the convention automatically to warships and State-owned ships might encroach on the principle of sovereign

immunity by subjecting these ships to all of the treaty’s provisions. There was a

clear majority for the proposal to exempt warships and other State-owned or

State-operated ships in principle from the convention and to add a paragraph to the

effect that States that elect to waive this exemption shall so notify the depositary.

On the other hand, the U.S. proposal to exonerate in addition State-owned noncommercial cargo ran into opposition on practical grounds. Many delegates argued

that it would be very difficult for a salvor rendering assistance to a vessel to determine which of the cargoes on board fell within the scope of the exemption.220

During the Legal Committee’s 58th session, the above views were firmed up.

Agreement was reached on the text of a new article (code-named “Y”) for

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inclusion among the final clauses of the convention.221 At the same session, delegates engaged also in an in-depth discussion of a revised U.S. submission to

exempt from the scope of the convention:

. . . property owned or shipped by a State for governmental and non-commercial purposes

whether on board a vessel described in subparagraph (c) or a commercial vessel.

However, the various misgivings among the Committee’s members on this issue could not be ironed out. Objections were voiced on practical grounds—the

impossibility for a salvor to identify the cargo benefiting from immunity—and on

legal-technical grounds: the term “property” was considered as being too wide

and deviating from the concept of State-owned cargo in the 1926 Brussels Convention; on the whole, the number of exemptions from the salvage treaty would

become too numerous.222

The International Conference on Salvage was convened in London, in April

1989. Two countries made further special submissions for consideration by the

Conference. Germany (FRG) claimed that the above mentioned article “Y” confused

two elements of generally accepted principles of public international law. She argued that extending the Convention’s provisions to warships should either be

entirely up to the national legislator without any obligation to notify this act, or that

there should be a reservation clause combined with a duty of notification. However,

the delegate indicated that Germany would be prepared to accept a provision like

Article 1 of the 1967 Brussels protocol amending the 1910 Convention.223

The United States submitted proposals for two new articles to the conference.

The first related to the status of State-owned property/cargo on commercial vessels. In the text accompanying this submission, the United States explained at

length that it was not concerned with the substantive issue, for it recognised that

government owners were obligated to pay for salvage services rendered in respect

of such cargo, but that it wanted to ensure that the Convention would not be used

“as a basis for abridging sovereign immunity principles.” The following new provision was proposed:

Unless the State owner consents, no provision of this Convention shall be used as a

basis for the seizure, arrest or detention of cargoes owned by a State and entitled to

sovereign immunity under accepted principles of international law, nor shall

articles 4, 2, 17, 18, 19, 21 and 22 apply to such cargoes.

In the eyes of its promoter, the text had two main advantages: it would reconcile the Salvage Convention with what it regarded as the “evolving nature” of

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sovereign immunity and would also take the specific treaty obligations of State

Parties to the 1926 Brussels Convention on the Immunity of State-owned Ships

into account.224

The second proposal related to a new subject, the status of humanitarian cargoes donated by the State to private charities and shipped world-wide. There are

cases in which the donating State does not hold title to such cargoes as a consequence of which they would not be covered by the sovereign immunity

exemption. The United States suggested that in cases where the donor State voluntarily undertakes to pay for salvage services in respect of such cargoes, a way

should be found to avoid subjecting such cargoes to unnecessary delay. Its delegation therefore proposed an additional provision to this effect.225

During the conference, the sovereign immunity issue raised much less controversy than was presaged by the preparatory work. First, the proposed article “Y”

on State-owned vessels was accepted after provision was made for salvage operations controlled by public authorities.226 The U.S. proposal in relation to

humanitarian cargoes was well received, whilst the proposal on State-owned cargoes was debated by an informal working group.227

The text of the final provision relating to State-owned vessels (Article 4), reads

as follows:

(1) Without prejudice to article 5, this Convention shall not apply to warships or to

other non-commercial vessels owned or operated by a State and entitled, at the time

of the salvage operations, to sovereign immunity under generally recognised

principles of international law unless that State decides otherwise.

(2) Where a State Party decides to apply the Convention to its warships or other

vessels described in paragraph 1, it shall notify the Secretary-General thereof

specifying the terms and conditions of such application. 228

D. Evaluation.

(1) The 1989 Convention entered into force on 14 July 1996. It has thus far attracted 25 States representing 27.67 percent of world tonnage.229 Although it does

not contain an express clause to that effect, there can be little doubt that it is

meant to replace the whole of the 1910 Brussels Convention. This follows from

the rules of general treaty law on successive conventions on the same subject230

but can also be substantiated with observations made during the Comité’s preparatory work.231 This is confirmed by the title page of the Report and Commentary

prepared by Comité.

232

The above issue is important because conflicts between the rights and duties of

States that are parties to two or more of the discussed international instruments

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on salvage cannot be excluded.233 Precisely the provisions on immunity of public

vessels might conceivably be a source for conflicts, for they were treated differently in each of the instruments discussed.

(2) A second question is that of the nature of the exemptions related to immunity that were incorporated into the 1989 Convention. This has taken on added

importance because of the convention’s environmental protection provisions.

Thus far not a single State has taken advantage of the offer contained in Article

4(2) and notified IMO of its desire to apply the provisions of the convention to its

warships and other state-owned ships. Presumably therefore, the convention does

not apply to the majority of the current Parties’ public vessels. But does this mean

that masters of such ships, in case they are involved in salvage operations, are also

exempted from the duty “to exercise due care to prevent or minimise damage to

the environment”?234

It is submitted that the answer to this question cannot be derived from the

treaty itself but should be sought in general public international law and the domestic laws of States for the following reasons:

• It was submitted that the better interpretation of the warships provision in

the 1910 Convention was that the latter regulated provisions of private maritime law and was not intended to deal with matters of public international

law at all. Although the 1989 Convention covers matters of public international law in addition to contractual ones, the discussions held within the

Comité, within IMO’s Legal Committee and during the 1989 Conference do

not permit to conclude that the tenor and scope of the exemption relating to

State-owned vessels would have changed. Obviously, this consideration

leaves aside the reversal of the exemption by the 1967 Protocol, for that solution seems to have fallen out of international favour. Thus, the 1981 draft by

the Comité and the commentary in relation to the proposed exemption relied entirely on the 1910 Convention and advised against adopting the

solution of the 1967 protocol. It is noteworthy too that the draft articles on

Jurisdictional immunities of States and their Property, which were presented by the ILC to the UN General Assembly in 1991, confirm the general

direction taken by the 1989 Salvage Convention: draft provisions Article 16

(1) and Article 16 (5) explicitly exempt warships and other State-owned vessels used for non-commercial purposes, in addition to ditto State-owned

cargoes, from the proposed rules on proceedings in respect of salvage and

other instances of marine emergency.

• The 1989 Convention deals in Article 5 with “salvage operations controlled

by public authorities.” This Article was proposed by the Comité and has

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been adopted without change by IMO. In its commentary to the Article the

Comité explained the tenor of this article as follows:

The draft convention does not deal directly with questions related to salvage operations by or

under the control of public authorities, nor does it deal with the rights of salvors to payment in

such cases from the authority concerned.

235

Since such salvage operations may involve State-owned vessels, although admittedly not always, the Comité’s commentary is indicative of the fact that much

like in 1905-1910, the drafters of the revised convention preferred to adopt a

hands-off approach for issues related to public authority.

• Whenever the question of immunity came up during the context of the preparatory work of the 1989 Convention, only jurisdictional aspects of

immunity were addressed. This limitation of the scope of the discussed exemptions is also apparent from the subject matter of the other international

instruments to which reference was made during the discussions—e.g., the

1926 Brussels Convention and the work of the ILC.

• The text of the provisions on State-owned cargoes and humanitarian cargoes itself leaves no doubt about the limitation of the breadth of the

exemptions: Articles 25 and 26 only mention jurisdictional or procedural

issues.

• It was seen above that the problem of “Humanitarian cargoes” was presented as an issue related to the sovereign immunity of State vessels and

State-owned cargoes. Although the protection afforded by Article 26 resembles jurisdictional immunity, it should not be considered an addition to

theory and practice of “sovereign immunity.” This is so because the State

which donates the cargoes—as explained by the promoter of the article—does not always retain title to the property; furthermore, the

prohibition contained in Article 26 is far from unconditional: the cargoes

cannot be seized “if such State has agreed to pay for salvage services rendered in respect of such humanitarian cargoes.” In other words, the article

does not exclude litigation involving such cargoes.

(3) The next question that arises is how the above reflects on the status of the

convention during armed conflict. Clearly, the 1989 Salvage Convention is an example of a treaty the drafters of which did not wish to be drawn on the issue of the

application of the substantive provisions of the convention to public vessels.

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Consequently, the exemption of warships in Article 4(l) cannot be taken to

imply that these vessels would not be under a duty to take due care to protect the

environment when engaged in salvage operations. The extent of the environmental duties incumbent on such vessels would depend (1) on the domestic law of the

State concerned; (2) on whether this State has made a notification in accordance

with Article 4(2) to the effect that it shall apply the provisions of the convention to

its vessels; (3) on general international law. With respect to the latter it should be

remembered that the incorporation of environmental provisions into the international law of salvage is of recent vintage, and that the convention itself entered

into force for State parties by mid-1996 only. Therefore, it is rather unlikely that

its environmental provisions would have reached customary law status.

It is nonetheless possible to draw some conclusions on the effect of the 1989

Salvage Convention during naval war. This will be done in the next chapter.

6.2.9. The 1990 OPRC Convention

• International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC Convention), 1990

As suggested earlier, the 1990 OPRC Convention occupies a special place in the

context of this enquiry.236 It was resorted to by IMO to deal with the aftermath of

(an) oil spill(s) caused in the course of the 1990–1991 Gulf war. Some of its provisions were implemented on a provisional basis in 1991, well before it formally

entered into force in 1995. Furthermore, as will be seen immediately below, part

of the preparatory work for the convention was held during the Gulf war itself.

Iraq invaded Kuwait on August 2, 1990; the diplomatic conference leading to the

OPRC Convention was held in November 1990 when the Desert Shield operation

took place, during which troops were deployed in preparation for the Desert

Storm phase of the Gulf war. The latter phase started on January 16-17, active

combat was stopped on February 27, and the terms of a cease-fire were set by Security Council Resolution 686 of March 2, 1991. The reason why this time frame is

important is that several of the principal “belligerents” participated in the preparatory work for the Convention:e.g., the United States, the UK, Saudi Arabia, and

Kuwait.

The catalyst for the 1990 OPRC Convention was, once again, a genuine maritime incident. Following the March 1989 Exxon Valdez disaster in Prince William

Sound in Alaska,237 the IMO Assembly requested the Marine Environment Protection Committee (hereinafter MEPC) to:

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. . . develop, for consideration at a conference, a draft international convention on oil

pollution preparedness and response which would provide a framework for

international co-operation for combating major oil pollution incidents taking into

account the experience gained within existing regional arrangements on combating

marine pollution. . . .238

Subsequently, the MEPC established a Working Group which was instructed to

prepare a draft for a convention.239 This was based on a proposal made earlier by

the United States, developed in informal consultations with experts from several

IMO Member States, the EEC and the IMO Secretariat.240

The next stage was the convening of a Preparatory Meeting for the Conference

on International Co-operation on Oil Pollution Preparedness and Response, which

was held at IMO headquarters from 14-18 May 1990.241 This Preparatory Meeting

reviewed the text of the draft convention as well as the report prepared by the MEPC

Working Group.242 The outcome of this meeting was a new draft for an “International Convention on Oil Pollution Preparedness and Response” as well as seven

draft resolutions dealing, inter alia, with an appeal for the early implementation of

the Convention and with the expansion of the scope of the Convention to Hazardous and Noxious Substances.243 During none of these preparatory stages did

questions related to warships and other State-owned ships arise.

The Conference on International Co-operation on Oil Pollution Preparedness

and Response was convened in London from 19 to 30 November 1990. It is worth

observing that it was attended by Kuwait, Saudi Arabia, the UK, the United

States and many other countries that would form part of the Gulf War Coalition,

in addition to Iran (but not Iraq).244 Only at this fairly advanced stage was the status of warships and other State-owned ships under the prospective convention

brought up. As has been the case with so many other treaties, the initiative came

again from the U.S. delegation. She explained that her proposal was borrowed

from MARPOL 73/78, giving the following justification:

The draft Convention calls upon Parties to impose certain requirements upon ships flying

their respective flags. Such regulatory requirements are appropriately applied, pursuant to

international agreements, to ships engaged in commercial service. However, it would be

inconsistent with long-standing international practice for an international convention to

require the application of such requirements to warships, naval auxiliaries, or other ships

owned or operated by a State and used, for the time being, only on government

non-commercial service.245

Apart from “long-standing international practice,” it might be that the impetus for the U.S. proposal was inspired by the then on-going military buildup in

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the Persian/Arabian Gulf. But this is only an assumption, since there is no written

evidence that the Persian Gulf situation was discussed during the November conference. In any event, the U.S. proposal for the insertion of an immunity clause

modelled on MARPOL 73/78, was adopted without much discussion.246 The final

text can be found in Article l(3) of the Convention.

As for the scope of the immunity clause of the OPRC Convention, it is manifest

that the State-owned ships in question are formally exempted from the substantive provisions of the Convention; this follows not only from the fact that the

clause was borrowed in its entirety from MARPOL 73/78, but also from the commentary provided by its initiator, the U.S. delegation. Consequently, what has

been said above on the environmental implications of the MARPOL formula in

general, and during armed conflict in particular,247 applies mutatis mutandis to the

OPRC Convention as well.

6.2.10. Wreck Removal

• Draft Convention on Wreck Removal 1995

In the view of its advocates, the proposed international convention on wreck removal would enhance and complement the international law relating to maritime

casualties by clarifying the duties of shipowners and States with respect to hazardous wrecks. Shipowners would not only be responsible for making a full report on

casualties involving their ships in accordance with IMO guidelines, but would also

be financially liable for locating, marking, and removing the hazardous wrecks.248

The States whose interests are the most directly threatened by the wreck would be

responsible for determining whether a hazard exists. Furthermore, the prospective

convention would provide guidance for this determination through a non-exhaustive list of criteria encompassing considerations relating to the marine

environment, public health and the economic interests of the coastal States.249

The 1995 draft submitted to IMO’s Legal Committee contains a proposal for an

exoneration clause, identical to Article 4(l) and (2) of the 1989 Salvage Convention.250 Its promoters have justified this provision citing grounds of general

international law:

In accordance with customary international law (as reflected in Articles 32, 95 and

96 of UNCLOS) the Convention would not apply to warships and other ships owned

or operated by a State and used for non-Commercial purposes.251

One may conclude therefore that in accordance with this comment, Article 4 of

the 1989 Convention and proposed Article III of the draft Convention on Wreck

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Removal constitute either a reflection or a special application of the general rule

of international law on the substantive aspects of immunity of public vessels.

6.3. Conclusions to Chapter VI

1. The above examination has borne out that there exists a great diversity of exemption clauses for State property in maritime and other treaties. The differences

relate not only to the wording of the clauses, but also to their meaning and scope,

and in particular to the question of whether they offer only jurisdictional immunity or, in addition, immunity from the material provisions of the instruments. It

would be impossible to formulate general conclusions, in particular regarding the

relationship between armed conflict and these treaties. Nonetheless, the following trends can be discerned

2. During the preparatory work for many maritime conventions, it was often argued that exempting warships and other State-owned ships was a sensible solution, in

view of the principle of sovereign immunity. There can be little doubt that sovereign

(jurisdictional) immunity of public vessels forms part of customary international law.

However, whether this should be broadened to cover exemption from substantive

provisions of maritime conventions is the subject of continuous debate. In addition,

the above analysis has shown that international law on jurisdictional immunity itself

is not immutable. Some of the treaty clauses discussed here have made a substantial

contribution to general public international law by either confirming the accepted

wisdom, or by producing a refined version of the pre-existing rules.

3. The above examination has also demonstrated that especially in the 1960s,

many countries started to question the traditional wisdom that warships should

be exempted automatically from compliance with maritime conventions. Most

conspicuous in this regard were the discussions held during the following conferences: the 1962 “OP” Conference to amend the 1954 OILPOL Convention, the

Brussels Conference leading to the 1962 NS Convention, the 1967 Brussels Conference of the Comitéleading to the 1967 Protocol to the 1910 Salvage Convention,

and the 1969 Brussels IMCO Conference leading to the 1969 Intervention Convention and the 1969 CLC.

4. Although the principle of the exemption of warships was not seriously challenged as such, the 1973 MARPOL Conference constitutes in a sense a watershed. It

was seen that the compromise formula which was agreed during that conference

has been widely copied by an impressive range of treaties and other international

instruments, both within and outside IMCO/IMO context, and is used even in interpretative statements in regard to treaties dealing with media other than the

marine environment. Crucially, the MARPOL formula was included in 1982

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UNCLOS. As a result, one may conclude that it is now a rule of general public international law that States should apply appropriate rules and standards for the

protection and preservation of the marine environment to public vessels “insofar

as reasonable and practicable,” and “without impairing their operations or operational capabilities.” It was seen too that the entire military sector is increasingly

required to comply with domestic environmental legislation, at least in

peacetime.

5. When the groundwork was laid for the 1989 Salvage Convention, the issue of

immunity of warships, of other State-owned ships and ditto cargo was again subjected to a thorough review by delegations of various countries. The outcome of

this was, at a minimum, the addition of a nuance to and a change of tone of the

classic exemption clause. Whereas under the MARPOL formula, Parties undertake

to apply equivalent standards to State-owned ships, they are not required to report

such measures to the depositary or other State parties. Under the formula of the

1989 Salvage Convention, States are explicitly offered the opportunity to apply

the Convention to ships which are normally exempted. In addition, States that

wish to take this course need to inform the depositary of this fact. Since the new

Salvage Convention entered into force in 1996, it is too early to tell whether the

new formula represents not only a development of the doctrine, but whether it

will be widely accepted as a new (treaty) norm. Already, the record seems mixed.

It is true that the 1989 “Salvage formula” has been used in the texts of two other

IMO conventions: in the HNS Convention, adopted in 1996 and in the recently tabled draft convention on Wreck Removal. On the other hand, none of the States

that have thus far ratified the 1989 Salvage Convention have made use of the offer

to apply its provisions to the State-owned ships in question. Furthermore, the immunity clause incorporated into the 1990 OPRC Convention follows the MARPOL

Convention and not the Salvage Convention. The 1992 OSPAR Convention, replacing the 1972 Oslo Regional Dumping Convention, includes a reference to

mere jurisdictional immunity. Finally, it was seen above that in response to criticism on the exemption of public vessels, the most recent protocol to the London

(Dumping) Convention, concluded in 1996, clarifies that States may in derogation of the general principle elect to apply the substantive provisions of the

protocol to public vessels without, however, waiving their right to jurisdictional

immunity in this regard. Although not entirely identical, this resembles the solution chosen in the 1989 Salvage Convention.

6. The effect of the exoneration clauses on the status of the treaty during

war/armed conflict and other types of hostilities was discussed above for each of

the conventions under consideration The first general rule that can be distilled is

that an exoneration clause—e.g., the 1989 Salvage Convention or the 1992 OSPAR

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Convention—which deals only with jurisdictional immunities, is not in itself a

good indicator of the status of the convention during war, armed conflict or other

types of hostilities. On the other hand, there are exoneration clauses that genuinely affect the substantive obligations under the convention. If the wording of

the exoneration clause exempts warships and similar vessels or objects from the

substantive provisions of the treaty altogether—e.g., the 1969 CLC—the logical

conclusion is that this exemption remains valid in the event of the outbreak of

war, armed conflict, or other types of hostilities. However, if the exoneration

clause is tempered in the treaty itself by a mitigation clause, the conclusion might

be different. The upshot of the relevant provisions of MARPOL 73/78 is that State

parties would not be justified in exempting warships ipso facto from complying

with the substance of the provisions of the convention or of comparable domestic

provisions; this is, a fortiori, the case with the international COLREGS, which States

are required to apply to the maximum extent possible, to warships and other public vessels. The above analysis has shown that while the vessels at issue are

normally subject to the substance of the provisions of these conventions, State

parties may decide to suspend some of these in the event of war, armed conflict, or

other types of hostilities. Still, as was the case with the contingency clauses that

were discussed in the previous chapter, the drafters of these immunity clauses intended to provide pragmatic solutions and were evidently unconcerned by the

intricacies of the new jus ad bellum under the Charter.

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Chapter VII

Conclusions on the Relationship between Maritime

Treaties and Naval War

THE AIM OF THIS CHAPTER IS TO MAKE A FINAL ASSESSMENT of the relationship between armed conflict and the treaties reviewed in this study. To this

end, the conclusions reached in the previous chapters will be collated and evaluated together with other relevant information. The conventions that will be

examined in this chapter have been grouped around the following themes: 1)

Conventions dealing with Safety Aspects and Navigation; 2) (Civil) Liability

Conventions; 3) Conventions on Prevention of Oil Pollution and other forms of

Marine Pollution; 4) Conventions Dealing with Maritime Emergencies.

7.1. Conventions Dealing with Safety Aspects and Navigation

7.1.1. The 1966 Load Lines Convention

The 1966 International Convention on Load Lines has proven of special interest to this study. It was in response to past State practice that its drafters agreed on

an express provision (Article 31) dealing with armed conflict. Pursuant to this

clause, any contracting Party, irrespective of its position in the armed conflict

may unilaterally decide to suspend the operation of the whole of the convention

or a part of it. As discussed earlier, armed conflict has been broadly defined by the

convention as “hostilities” or other “extraordinary circumstances” affecting the

“vital interests” of the State party contemplating suspension.1 In addition, the

means of recourse or protest of other Parties under the convention are limited:

apart from a mere procedural right to be informed of the suspension and its termination, third Parties cannot be deprived of their right of control granted by the

convention to port States. Any disagreement on the application of Article 31 will
need to be solved via diplomatic channels, although one can never exclude judicial review.

Furthermore, following Article 5(l), warships are exempted from complying

with the substantive rules established by the treaty; but unlike the exoneration

clause of MARPOL 73/78, the 1966 Load Lines Convention does not require State

parties to apply equivalent domestic provisions to their public vessels. Evidently,

this exemption of warships in peacetime will stand should the emergency conditions defined in Article 31 materialise.

7.1.2. The 1972 International Collision Regulations

The International Collision Regulations (COLREGS) were singled out in the previous chapter because of their explicit incorporation of provisions applicable to

State ships, including warships and minesweepers. However, the wording of Rule

l(e) of the 1972 Convention, as well as the complementary treaty practice of the Incidents at Sea (INSCEA) agreements, demonstrate that the application of COLREGS to

State ships may be less straightforward in conditions other than times of peace. It

was argued on the basis of the two elements just mentioned that States are entitled

to suspend part of the COLREGS applicable to warships, in case of armed conflict, at

least insofar as relations with opposing belligerents are concerned.

One may venture to suggest that since the COLREGS are an expression of the

rules of good seamanship, belligerent States would not be justified in ignoring

these “rules of the road” in their relations with States not involved in the conflict.

Ignoring such widely accepted standards would be a self-defeating attitude: it

would raise questions of State responsibility and might possibly lead to a broadening of the geographical scope of the hostilities.

In similar vein, there would normally be no reason why genuine merchant vessels would not continue to be bound by the COLREGS in the event of the outbreak

of armed conflict. Usually, merchant vessels steer well clear of war zones at sea,

and furthermore, the 1972 COLREGS Convention provides for special circumstances at sea: Rule 2 (a) on Responsibility refers to the requirements of “the

ordinary practice of seamen,” and of the “special circumstances of the case.” This

wording is flexible enough to include emergencies such as war, armed conflict, or

other type of hostilities.

7.1.3. The 1974 Safety of Life at Sea Convention (SOLAS)

In Chapter Five, much attention has been paid to the Safety Conferences of

1948 and 1960, during which, contingency clauses on armed conflict were

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accepted after thorough debates among State delegates.2 First, there is unequivocal evidence that several Parties had unilaterally suspended (parts of) the 1929

Safety Convention during the second World War. This was acknowledged by the

1948 Conference in two ways. According to a special contingency clause—Article

VI—any Party would, in case of war, irrespective of its position in the conflict, be

allowed to suspend part or whole of the Safety Regulations. As with the 1966 Load

Lines Convention, the right of recourse or protest of other Parties under the convention was limited to a procedural right to be informed of the suspension and its

termination and to the preservation of their rights of control under the convention. The second element pointing to the effect of war on the Safety Convention

and its Regulations came with the adoption of Resolution 1, according to which,

State parties were granted a temporary waiver to deal with “the situation created

by the second World War.”

After much debate, the 1960 Safety Conference accepted a proposal not only to

retain the suspension clause in the main part of the Convention but to broaden

the circumstances in which suspension might be justified from “war” to “war or

other hostilities.”

In view of this legacy, the move to drop the contingency clause from the 1974

SOLAS Convention comes as a surprise, the more so since the deletion aroused apparently very little official comment. It was submitted that the deletion of the

special suspension clause should not be equated with an abrogation of the right

for State parties to resort to suspension. As demonstrated by the travaux

préparatoires of many of the conventions discussed in Chapter Five, there is evidence of State practice and opinio juris pointing to the existence of such a right

under general international law: i.e., States may, under certain emergency conditions, at the outbreak of war, armed conflict, or other types of hostilities, suspend

part or whole of the operation of maritime conventions by virtue of general international law, irrespective of whether this has been explicitly recorded in the

convention or not. The incorporation of the contingency clauses into the 1948

and 1960 Safety Conventions had been preceded each time by extensive and often

passionate debates. Hence, if it had been the intention of the 1974 SOLAS Conference to abolish the right to resort to suspension in such circumstances, one would

expect that this would have been reported in a much more explicit way.

Finally, according to Regulation 3 of the General Provisions, the 1974 SOLAS

Regulations do not apply to ships of war nor to troopships, “unless expressly provided otherwise.” No such explicit provision has been adopted. Since this clause

affects the substance of the Regulations, there can be no doubt that warships and

troopships are, a fortiori, exempted from the 1974 SOLAS Convention in case of

war, armed conflict, or other type of hostilities.

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7.2. Maritime (Civil) Liability Conventions

• The 1962 Nuclear Ships Convention (NS Convention)

• The 1969 Civil Liability Convention (CLC)

• The 1971 Fund Convention

• The 1971 Convention on Maritime Carriage of Nuclear Material

• The 1996 Hazardous and Noxious Substances Convention (HNS Convention)

It was seen in Chapter IV that exclusion of war damage has become a standard

clause in all civil liability conventions3 and that it is implied in the 1971 Convention on Maritime Carriage of Nuclear Material. The wording of each of the

reviewed war damage clauses unambiguously excludes coverage of marine pollution caused by practically all types of armed conflicts: acts of war, hostilities, civil

war, insurrection. This is barely mitigated by the fact that the burden of proof of

such circumstances lies with the person, the company, or the fund to which the

main liability has been channelled.

All of the reviewed civil liability conventions contain, in addition, an express

provision excluding application of the substantive rules to warships or other naval vessels. The only exception is the 1962 NS Convention, but it was seen that it is

precisely because of the explicit inclusion of warships that this treaty is not yet in

force. In addition, the discussions held during the preparation of the 1969 CLC, for

example, clarify that it was the drafters’ intention to exclude claims for war damage regardless of the status of the victim (belligerent or neutral).

The inevitable conclusion is that the reviewed liability conventions do not apply to circumstance of war, armed conflict, or other types of hostilities, such as

civil war and insurrection.

7.3. Prevention of Oil Pollution and other Forms of Marine

Pollution

• The 1954 OILPOL Convention

• The 1972 Oslo Dumping Convention

• The l972 London Dumping Convention

• The MARPOL 73/78 Convention

The 1954 Convention for the Prevention of Pollution of the Seas by Oil, as

amended by the 1962 OP Conference, contains an explicit provision (Article

XIX) that allows any State party, regardless of its status in relation to the conflict,

to suspend any part or even the whole of the treaty, if it “considers that it is affected” by “war or other hostilities.” As was the case under the 1948 and 1960

Safety Conventions, and still is the case under the 1966 Load Lines Convention,

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the suspending government is under a procedural duty to notify the depositary of

the Convention of its actions under Article XIX. Unlike the other conventions just

mentioned, the wording of the 1954 OILPOL suspension clause does not include a

reference to any rights retained by other Contracting Parties in case suspension is

resorted to under these circumstances.

As discussed earlier,4 while this suspension clause was not challenged at all

during the 1962 OP conference, it has not been incorporated into MARPOL 73/78,

which was intended to supersede the 1954 OILPOL Convention. What has been

said above in relation to the deletion of the suspension clause by the 1974 SOLAS

Convention applies mutatis mutandis in this case. It was submitted that the non-incorporation of the suspension clause in MARPOL 73/78 cannot be interpreted as an

abolition of the right to suspend part or whole of the operation of its provisions in

circumstances of war, armed conflict, or other types of hostilities. There is no indication that the 1973 MARPOL Conference intended to restrict or abolish the

customary right of States parties to resort to suspension of some or all of the provisions in case of armed conflict.

Finally, warships and other State ships are, in principle, exempted from complying with the substantive provisions of both the OILPOL and the MARPOL

Conventions, although State parties are, to varying degrees, expected to apply

equivalent measures “insofar as reasonable and practicable,” to the exempted categories. In the case of MARPOL 73/78, however, this application should not impair

“the operations or operational capabilities” of such ships. Apart from the limitations inherent in this qualifying terminology itself, an analysis of the

implementing legislation for the U.S. military sector confirms that the application of the mitigating factors is subject to conditions of peace.

It was shown earlier that whilst the Oslo and London Dumping Conventions

contain different immunity clauses, the MARPOL formula for the exoneration of

State ships has been widely copied not only in other maritime conventions but

also in conventions dealing with other media.5 The latter can therefore be considered reflective of customary international law. In addition, some commentators

believe that there are strong grounds for treating MARPOL 73/78 as a customary

standard to be complied with by the vessels of all states, whether or not they have

chosen to ratify.6

7.4. Conventions Dealing with Maritime Emergencies

7.4.1. The 1969 Intervention Convention and the 1989 Salvage Convention

It was submitted in the previous chapter that it proves impossible to determine

the legal effect of either treaty during armed conflict.7 One reason is that the only

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treaty clauses with a bearing on armed conflict deal with classic sovereign immunity and hence concern only jurisdictional aspects: Article 1(2) of the 1969

Convention and Articles 4, 25 and 26 of the 1989 Salvage Convention. Another

reason is that there is no trace in the travaux préparatoires of any discussion of the

effect of armed conflict on the treaties in question.

Despite the foregoing, one may venture to suggest the following regarding the

status of the 1989 Salvage Convention in times of armed conflict. It will be remembered that there is case law indicating that the 1910 Salvage Convention was applied

or at least considered to be applicable between mutually friendly countries during

the Second World War.8 It was also seen that Article 14 of the 1910 Convention refers explicitly to a duty incumbent on the shipmaster to render assistance to persons

in need, even to enemy nationals. It was submitted that this article indicates that

the Convention as a whole, apart from the preceding moral duty, was not applicable

between opposing belligerent States. Building on the foregoing, one could make the

following—admittedly obvious and “soft” law— deductions with respect to the effect of armed conflict on the execution of the 1989 Convention:

(1) Presumably, between opposing belligerents that are at the same time party

to the 1989 treaty, the latter may become inoperative or irrelevant for the duration of the armed conflict;

(2) However, nothing prevents the treaty from being applied between State

parties not involved in the armed conflict;

(3) The treaty may even be applicable between a State party to a conflict and a

Party not involved in the conflict;

(4) The incorporation of a provision on Humanitarian cargoes in Article 26 of

the Salvage Convention demonstrates at the very least that the drafters of the

treaty did not assume that the outbreak of armed conflict would engender any

automatic “cut-off” effects on the execution of the treaty. 9

As for the 1969 Intervention Convention, it will be remembered that the main

pre-occupation of the drafters of the immunity clause was to avoid at all cost acknowledging a right of interference by coastal States on the high seas vis-à-vis

warships and other vessels owned or operated by a foreign State. 10

While circumstances of both international and internal armed conflict were

discussed at length in the context of the 1969 CLC’s “war damage exclusion

clause,”11 the matter was not touched on at all in relation to the draft articles on

Intervention. Still, it could be argued that the fact that both conventions were

adopted by the same conference indicates that if circumstances of armed conflict were excluded from the scope of the CLC, the same should hold true for the

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Intervention Convention. However, such an inference is open to challenge

on several grounds. A major objection is that the 1969 CLC and the 1969 Intervention Convention deal with two entirely distinct matters. During the 1969

Brussels Convention, the draft for the civil liability convention was thought

of as dealing with the question of (private) civil liability of shipowners,

whereas the draft Convention on Intervention was meant to deal with matters of public international law. A second problem is that any

contemporaneous interpretation based on observations made during the

travaux préparatoires is of doubtful value in view of the plain meaning of the

texts: the fact remains that war damage is explicitly excluded from the 1969

CLC, but that circumstances of war or armed conflict are not mentioned at all

in the 1969 Intervention Convention.

Building on the foregoing, it cannot be ruled out that the definition of maritime casualty, defined in Article II (1) of the latter convention as:

...a collision of ships, stranding or incident of navigation, or other occurrence on board

a ship or external to it resulting in material damage or imminent threat of material

damage to a ship or cargo

could encompass incidents caused by belligerents in the course of armed conflict.

Indeed, the purpose of this convention is to establish and regulate the right of

coastal States to intervene on the high seas in order (Article I (1)):

. . . to prevent, mitigate or eliminate grave and imminent dangers to their coastline or

related interests

caused by maritime casualties. From the point of view of the threatened coastal

State, the exact circumstances in which such casualties occur make little difference. Yet, in spite of its common-sense appeal, the validity of this deduction

remains uncertain. The negotiating history of many maritime conventions shows

that advocates of common-sense arguments favouring the interests of the victims

invariably lost out to proponents of conservative views on issues such as armed

conflict and the immunity of warships. For instance, it will be recalled that during the 1969 Brussels Conference, a proposal to exclude all oil tankers from the

exemption provisions, irrespective of their status or ownership, was rejected on

grounds of “sovereign” immunity.12

On the whole, the effect of armed conflict on the 1969 Intervention Convention remains uncertain. If one considers the 1969 Intervention Convention on its

own, one might conclude that the taking of measures by a coastal State against a

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foreign nation’s warships under the convention remains forbidden, regardless of

whether the nations involved are at peace or whether one or more is involved in

armed conflict. On the other hand, there is no recorded evidence pointing either

to the application or the non-application of the convention with respect to civilian ships between State parties during the course of an armed conflict. Any

conclusions to that effect remain purely speculative.

7.4.2. The 1990 OPRC Convention

At first sight, the 1990 OPRC Convention poses the same dilemma as the 1969 Intervention and 1989 Salvage Conventions: the only clause that might have an

apparent bearing on armed conflict is Article 1(3), under which, warships and other

State-owned ships are exempt from the scope of the Convention. Yet, the 1990 OPRC

Convention presents a different case altogether. First, the exoneration clause of Article 1(3) deals with the substance of the provisions of the Convention and goes

beyond preserving mere jurisdictional immunities. This means, for instance, that

warships are not under as strict an obligation as civilian ships to carry the shipboard

oil pollution emergency plans described in Article 3 of the Convention. Furthermore, warships are not under the same firm obligation to comply with the oil

pollution reporting procedures dealt within Article 4 of the Convention.

As was mentioned earlier, the immunity clause of Article 1(3) was inserted at

the request of the U.S. delegation, who borrowed the text from MARPOL 73/78.13

Hence, the conclusions that were reached for the MARPOL formula apply mutatis

mutandis to the OPRC Convention: i.e., during armed conflict, the obligation of

States to apply equivalent provisions to the exempted categories of ships is probably non-existent.

Secondly, a more striking difference between the other conventions on maritime casualties and the OPRC Convention is that the latter was applied even prior

to its entry into force in connection with the oil spill(s) that occurred during the

1990–1991 Gulf conflict. The genesis of the Gulf War oil spill(s)14 and the negotiating history of the OPRC Convention15 were described earlier. An indication was

also given of the chronology of the events of the 1990–1991 Gulf conflict, putting

the salient steps in the preparation of the OPRC Convention in historic relief. It

was noted that the final diplomatic conference was held in November 1990 during

the Desert Shield phase of the conflict, and that many of the Governments represented were either already involved in the conflict or would shortly form part of

the Desert Storm coalition.16 Yet, there is no recorded evidence in the conference

records that circumstances such as war and armed conflict were taken into consideration by the drafters.

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Considered in isolation, the definition of “oil pollution incident” adopted by

the OPRC Conference could technically cover both accidental—non-war related—disasters as well as spills deliberately caused during armed conflict:

Art. 2(2): “Oil pollution incident” means an occurrence or series of occurrences

having the same origin, which results or may result in a discharge of oil, and which

poses or may pose a threat to the marine environment, or to the coastline or related

interests of one or more States, and which requires emergency action or other

immediate response.

Yet, there are plenty of indications that during the preparatory stages of the

OPRC Convention only peaceful and not deliberate wartime spills were thought of:

• The impetus and catalyst for drafting of the convention was the 1989 Exxon

Valdez disaster that occurred entirely in peacetime;

• During the preparatory stages of the OPRC Convention, reference was often

made to the 1969 CLC and the 1971 IOPC Fund Convention. The possibility

of pre-financing or coverage by the latter fund of the cost of actions dealing

with pollution or threat of pollution was thoroughly examined,17 and it was

decided eventually to include references to both conventions in the preamble to the OPRC Convention. The point here is that the 1969 CLC and the

1971 IOPC Fund Conventions explicitly exclude coverage for damage caused

during armed conflicts;

• Similarly, the question whether only “oil pollution” incidents should be

covered or whether the prospective convention should also deal with “hazardous and noxious substances” (hereinafter HNS) was contentious

during the preparatory stages of the OPRC Convention.18 Eventually, a

compromise was reached under which HNS substances would be left out from

the convention, whilst a special resolution would be adopted on the subject

(Resolution 10) urging IMO and State parties to expand the scope of the convention to HNS.

19 It is noteworthy that the 1996 HNS Convention excludes

war damage;20

• What is more, the resolution adopted by the OPRC conference on the HNS

question mentions only accidental discharges. Its third preambular paragraph reads:

Recognising that pollution of the sea by accidental discharge of hazardous and noxious

substances into the waters may threaten the marine environment and the interests of

coastal States.... (Italics added.)

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The latter point needs to be addressed in more detail. The HNS resolution was

proposed early on by a Working Group. In the accompanying commentary, it was

noted that some delegations were of the view that the Convention should apply to

HNS substances and that the proposed resolution was a compromise intended to

form “a package with the Convention,” to be considered “by the Conference in

conjunction therewith.”21

In view of the foregoing, one can only conclude that the OPRC Convention was

intended for non-accidental oil spills such as the 1991 Gulf war oil spill. This was

confirmed later by the Secretary-General of IMO:

Delegates to the November Conference had been thinking of an accidental disaster, such as

spillage from a tanker. . . .22

Because of this negotiating history, the resort to its mechanisms in connection

with the 1990–1991 Gulf war appears all the more remarkable. Nonetheless, it

would be wrong to conclude on the basis of this single precedent that the OPRC

Convention could be applied unreservedly during armed conflict in the future. A

close scrutiny reveals that there are serious constraints on the application of the

convention machinery during armed conflict.

• It is noteworthy that the early implementation of the OPRC machinery was

already envisaged before the oil spill became known. Indeed, the November

Conference adopted a resolution (No. 2) calling for the early implementation of the Convention pending its entry into force,23 and another

resolution (No. 3) on the early implementation of Article 12 of the Convention.24 The latter article deals with institutional arrangements and outlines

the tasks and responsibilities given to IMO, whilst Resolution 3 calls upon

the Secretary-General of IMO to initiate the early implementation of the article in question.

• Unlike in the 1983 Nowruz oil spill, the 1991 oil slick had affected regions

largely outside the zones of active combat. Even if the opposing belligerent

(Iraq) would have wished to, she would probably have been unable to prevent the initial relief and remediation efforts undertaken by other states.

• Nevertheless, it is important to note that most of the international relief effort could only take place after the cessation of hostilities, and that the

activities of IMO under the OPRC Convention were no exception to this. Operation Desert Storm commenced on 16-17 January 1991 with large-scale air

and missile attacks, and the Coalition ground offensive was started on 24

February 1991. Kuwait was liberated and all fighting was ceased on 27

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February 1991. The first reports of the Gulf War oil spill reached the outside

world by the end of January 1991, and shortly thereafter, IMO began receiving offers of assistance to the country that was seemingly worst affected,

Saudi Arabia.25 As mentioned earlier, the impacts of the oil spill(s) on the

coastal and marine environments were most severe along the Saudi Arabian

coast, with lesser effects for the Kuwaiti, Iraqi, and Iranian coasts. 26 During

the hostilities, local teams in Saudi Arabia managed to save strategic installations from impending disaster. The IMO dispatched its first civilian

co-ordinator to Saudi Arabia some 10 days after the cease-fire, and IMO Secretary-General O’Neill called for the establishment of a special trust fund

and the setting up of an international co-ordination centre in the month of

March 1991. 27 The first money from the fund was disbursed in early April

1991.

• A further observation is that IMO concentrated its relief efforts on Saudi

Arabia, the country that was most severely affected by the oil slick. However, it should be noted that this was in response to an explicit request for

assistance by this victim State, and that IMO depended for its operations

not only on the co-operation but also on the initiative of the latter. Although it was the IMO Secretary-General himself who concluded at an

early stage that the oil spill was of the “severity” envisaged by Article 7 of

the OPRC Convention, the text of this provision places the right of initiative for co-operation and assistance squarely with State parties. In view of

the Nowruz experience—which will be further discussed below—it is unlikely that the OPRC Convention could be relied on when State parties

disagree or when a belligerent has the power to block relief efforts.

• Finally, now that the OPRC Convention has entered into force, State parties

are obliged to give effect to Articles 4 and 5 of the Convention. These deal

with oil pollution reporting procedures and actions subsequent to receiving an oil pollution report. While the 1991 Gulf War oil spill was

publicised world-wide soon after its occurrence, it should be recalled that

pursuant to the exemption clause of Article 1(3) of the OPRC Convention,

warships, naval auxiliaries or other ships owned or operated by State parties for non-commercial purposes are under no duty to report oil spills

encountered during armed conflict.

7.4.3. The 1978 Kuwait Regional Convention

The 1990–1991 Gulf war precedent stands in sharp contrast to the situation

surrounding the 1983 Nowruz oil spill. As mentioned earlier, although the origin

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of this spill was probably accidental, Iraq soon aggravated it by regularly bombing

the oil field.28 During the entire incident, co-operation between the belligerent

States was lacking, and the various meetings held under the auspices of the Regional Organisation established under the Convention (Ropme), failed even to

lead to a partial cease-fire in order to allow capping of the burning wells. 29 As a

consequence, international as well as unilateral relief efforts were effectively ruled

out since it would have required entering an active war zone.30 In addition, most

of the unilateral remediation efforts planned or undertaken by Iran proved futile,

since Iraq resumed bombing of the fields feeding the spill.31

On the basis of the conclusions reached above regarding, inter alia, the MARPOL

and the OPRC Conventions, the various claims made during the Iran-Iraq war regarding the 1978 Kuwait Regional Convention can now be evaluated.

It will be remembered that this Convention contains no express clause on

armed conflict. It does, however, contain a provision (Article IX (a)) on “pollution emergencies,” which obligates all Parties to take individually and/or jointly:

. . . all necessary measures . . . to deal with pollution emergencies in the Sea Area,

whatever the cause of such emergencies, and to reduce or eliminate damage resulting

therefrom. (Italics added.)

Furthermore, it contains an exemption clause, Article XIV, providing that:

Warships or other ships owned or operated by a State, and used only on Government

non-commercial service, shall be exempted from the application of the provisions of

the present convention. Each Contracting State shall, as far as possible, ensure that

its warships or other ships owned or operated by that State, and used only on

government non-commercial service, shall comply with the present Convention in

the prevention of pollution to the marine environment.

It was seen that Iraq justified its behaviour during the Nowruz incident by asserting in a letter to the UN Secretary-General that:

. . . the provisions of the Kuwait Regional convention on Cooperation for the Protection of the

Marine Environment from Pollution and the protocol annexed thereto have no effect in cases

of armed conflict.32

Whilst there is no record of any official reaction from other States, the Iraqi position was rejected explicitly by five experts convened by the EC Commission.

They argued that since the Kuwait Regional Convention was negotiated for a

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region where tensions were known to exist, the terms “whatever the cause of such

emergencies” in Article IX (a) must be taken to include instances such as the

Nowruz oil spill. They further suggested that since the convention contained no

express provision to that effect, State parties would not be entitled to suspend the

operation of the convention, or at least not in their relations with neutral States.33

To assess these claims, two main questions have to be distinguished. Can the

Kuwait Regional Convention be said to apply at all during armed conflict? If so,

would Iraq be entitled to suspend a part or the whole of the operation of the treaty

on the ground of armed conflict?

First, there is incontrovertible evidence that the multilateral institution established by the Kuwait Regional Convention,34 although no doubt “affected” by the

1980–1988 Iran-Iraq conflict, and despite the fact that it failed to reach any meaningful result, continued to function. The sources consulted for this work indicate

that both belligerents continued to participate in the meetings of the Regional

Organisation established under the 1978 Convention. Therefore, and despite

Iraq’s statement to the UN, the Kuwait Convention continued to operate, at least

in part, during the Iran-Iraq conflict.

It is an entirely different issue, however, whether the 1978 Convention could

be construed so as to deny Iraq the right to attack the Nowruz oil field. As discussed in Chapter II, under current jus in bello, oil fields and oil installations are

not, as such, immune from attacks by belligerents.35 Could a belligerent such as

Iraq nevertheless be denied the right to attack the Nowruz oil field on the basis of

its adherence to a maritime treaty which obligates Parties to prevent incidents of

marine pollution and to co-operate in their resolution? Insofar as the relationships between contending States are concerned, it is submitted that this question

has to be answered in the negative, for two principal reasons.

In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons,

the ICJ indicated that for questions related to the conduct of belligerent activities,

the law of armed conflict operates as lex specialis with respect to multilateral environmental treaties.36 Insofar as the attacks by Iraq on the Nowruz oil field

conformed to the requirements of the law of armed conflict, any rights derived by

Iran from the Kuwait Regional Convention were overridden by the law of armed

conflict.

This conclusion is supported by a close examination of the convention itself.

As argued in the previous chapter,37 the exemption clause of Article XIV of the

Kuwait Regional Convention means that Iraqi warships are not required to comply with the substance of the treaty nor with any possible equivalent domestic

provisions in time of armed conflict. This suggests that the Convention was not

intended to regulate questions of armed conflict.

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Moreover, contrary to what was claimed by the EC experts, there is reason to

believe that the Kuwait Convention was concluded only with accidental, non-war

related emergencies in mind. This is supported by a protocol concluded on the

same day as the main framework convention and which forms an integral part of

the Convention.38 The Protocol Concerning Regional Co-Operation in Combating Oil and Other Harmful Substances in Cases of Emergency defines “marine

emergency” as:

. . . any casualty, incident, occurrence or situation, however caused, resulting in

substantial pollution or imminent threat of substantial pollution to the marine

environment by oil or other harmful substances. . . .39

However broad and all-encompassing this phrase may seem, the provision

cites only non-intentional and non-war related accidents:

... inter alia,... collisions, strandings and other incidents involving ships, including

tankers, blow-outs arising from petroleum drilling and production activities, and

the presence of oil or other harmful substances arising from the failure of industrial

installations. . . .

Whether the above analysis is equally valid for the relationships between Iraq

and third States that were affected by the Nowruz oil spill is more difficult to answer. First, in case the affected third State was not a party to the Kuwait Regional

Convention, the latter could derive no rights vis-à-vis Iraq on the basis of the latter agreement.

Secondly, if the affected State was a party to the Convention, several further

variables complicate the analysis. The first question to be asked is whether the affected State was truly neutral in the conflict or instead a co-belligerent siding with

one of the parties involved. If the latter, it is submitted that the affected State’s

claim to immunity from the effects of the conflict would be in any event tenuous,

regardless of whether this claim is based on the law of armed conflict or on any

purported rights arising from the Kuwait Convention. If the affected State was

genuinely neutral in the conflict, current international law, as seen in Chapters II

and III, offers no clear answer to the question of whether such a State may invoke

the right to be immune from the effects of armed conflict between other States,

and if so, to what extent.40

However, even if the law of armed conflict and the law of neutrality offer no

clear guidelines, the analysis of the Kuwait Regional Convention does seem to indicate that, on balance, it did not outlaw the Iraqi belligerent conduct in question,

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even if this affected third States. The reason for this suggestion is twofold. First,

Article XIV, as seen above, exempts Iraqi warships from the duty to comply with

the substance of the convention and leaves the protection of the environment legally subordinated to operational demands in times of peace and military

necessities in times of naval war. Secondly, Iraq would in any event be entitled to

suspend the operation of the entire convention because of the ongoing conflict.

The view that suspension of the convention could not be allowed failing an express provision to that effect, however attractive from an environmental point of

view, could only be accepted if the Kuwait Convention were to be considered in

isolation. The latter premise is, however, open to challenge. The examination

conducted in the previous chapters indicates that the Kuwait Convention is but

one treaty in a long list of treaties on the marine environment that point to the existence of rules of customary international law on the subject of the legal effect of

this type of multilateral treaty during international armed conflict. It was argued

in Chapter Five that the rule according to which State Parties—regardless of their

status in the conflict—are allowed to suspend maritime treaty provisions in

armed conflict is still current international law, despite the fact that most treaties

concluded since the 1970s no longer contain such an express contingency clause.

Finally, it should be noted that these conclusions are advanced as a matter of

principle. They neither approve of the Iraqi conduct in general nor of the continued bombing of the oil field in particular. Procedural questions have been left

aside in this assessment, whilst perhaps more importantly, the implications of the

prohibition to use armed force in international relations were not considered.

The main import of the above analysis is twofold. First, it was not the intention of

the drafters of the Kuwait Regional Convention to regulate activities and consequences related to armed conflict. Secondly, in abstracto, Iraq would be justified in

claiming that she could not be denied the right to bomb the Nowruz oil field on the

ground of any contractual obligations under the Kuwait Regional Convention.

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Chapter VIII

General Conclusions on the Legal Effect of

Multilateral Environmental Agreements during International Armed Conflict

• It was seen in the first chapter that the most clearly established principle of

general IEL is that no State may conduct activities or permit the conduct of

activities on its territory or in international areas that cause harm to the territory of another State if that harm is of serious consequence and is

established by clear and convincing evidence. It was demonstrated also that

modern IEL is predominantly treaty-based and that it encompasses detailed

régimes for various environmental sectors such as the marine environment,

freshwater resources, biodiversity, and the atmosphere.

• It is now well accepted that States need to take environmental considerations into account in the pursuit of military activities, including during

armed conflict. The analysis of the lex specialis of the laws of armed conflict

in Chapter II has demonstrated not only the environment-protective potential but also the limitations of current jus in bello, jus ad bellum, and

neutrality law. It was seen too that the generally accepted principles of environmental protection during military operations remain at a very high level

of abstraction. The main purpose of this study, as set out in the introduction, was to examine the extent to which international law has developed

more detailed rules to protect the environment in armed conflict.

• In Chapter III, the author has examined the main legal principles involved

and suggested a methodology to determine the legal effect of general IEL during armed conflict.

Following, inter alia, the 1996 Advisory Opinion of the ICJ on the Legality of the

Threat or Use of Nuclear Weapons and the records of the 1972 UNCHE and the 1992
UNCED conferences, it was submitted that the laws of armed conflict operate as lex

specialis for questions related to the conduct of armed conflict. This means that

whilst certain State obligations towards the environment continue to apply during armed conflict, IEL cannot be construed as overriding a State’s right to use

armed force in self-defence.

To determine the legal effect of multilateral environmental agreements in general during armed conflict, two doctrinal questions were distinguished. First, can

these agreements be said to apply at all to belligerent activities during international armed conflict? If so, do contracting Parties have the legal right to

terminate or suspend the operation of such agreements during the conflict?

It was noted that modern international State practice, case law, and legal theory led to two main principles of interpretation. First, as mentioned before, the

laws of armed conflict operate aslex specialis vis-à-visIEL. Second, there is a strong

tendency towards maintaining the validity of treaties insofar as compatible with

national policy and with obligations stemming from Security Council decisions

under Chapter VII.

Drawing further on the two main disciplines involved, the Law of Treaties and

the Law of State Responsibility, it was suggested that each multilateral treaty

needs to be examined separately in order to determine its application to the problem in question. First, the pactum between contracting States needs to be

examined, applying the relevant articles of the 1969 Vienna Convention on treaty

interpretation as well as those principles related to armed conflict. Second, provision needs to be made for obligations arising from jus cogens, humanitarian

provisions, and binding Security Council decisions. Third, regard must be had to

the grounds of suspension and termination arising from the Law of Treaties, and

fourth to the “circumstances precluding wrongfulness” arising under the Law of

State Responsibility. The final possibility which needs examining is whether

there are any customary rules on the fate of multilateral environmental agreements during armed conflict, outside the frames of reference of the Law of

Treaties or the Law of State Responsibility.

• For the reasons explained in the introduction, the second part of this study

focused on the marine environment, examining the legal relationship between naval warfare and a series of representative treaties dealing with

maritime safety and marine pollution.

The analysis conducted in Part Two confirms that each treaty needs to be examined separately to determine its possible effect during armed conflict. For instance, there is sufficient evidence to support the conclusion that none of the

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reviewed civil liability conventions apply to questions of armed conflict. By contrast, the analysis of the pactum agreed in MARPOL 73/78 and the 1972 COLREGS

Convention indicates that these agreements could, in principle, apply in their entirety during armed conflict. As for the 1989 Salvage Convention, it was submitted that it does not apply between contending States, but that it may continue to

be relevant for relationships involving non-contending States.

Nevertheless, it is difficult to escape the conclusion that a great number of the reviewed maritime treaties are unlikely to apply during armed conflict, either because

war damage is expressly excluded or because the treaties do not apply to warships.

It was seen that the drafters of the majority of the reviewed treaties tended to

adopt a categorical “hands-off” approach to the subject of international armed

conflict. The overriding concern of the negotiators of the maritime treaties reviewed in this study was to provide pragmatic solutions to certain problems

encountered at sea, not to solve questions related to armed conflict. Whenever

pressed to take an official stand on the issue, drafters opted either for excluding

the matter from the convention altogether (e.g., through war damage exoneration

clauses and warship exemption clauses), or for leaving it up to the discretion of

the State parties (e.g., through armed conflict contingency clauses and warship exemption clauses). However unsatisfactory from an environmental and jus ad

bellum point of view, it is difficult not to conclude that the majority of the reviewed treaties were not intended to deal with belligerent activities nor with the

consequences of armed conflict.

• As for the treaties that are in principle applicable during armed conflict, the

analysis shows that, under international law, all contracting Parties, regardless of their status, have the legal right to suspend those treaties, either

wholly or partially. This conclusion has wider implications, since it supports the existence of a customary rule of law according to which all

contracting Parties have the legal right to suspend (certain) multilateral

treaties in whole or in part during circumstances of war, armed conflict, and

other types of hostilities. Because of the discretion which the discussed contingency clauses accord to State parties, it was argued that this constitutes a

separate ground on which treaties may be suspended, which differs, inter

alia, from the rebus sic stantibus ground arising under the 1969 Vienna Convention on the Law of Treaties and the “state of necessity” defence under

the general Law of State Responsibility.

• There is no support in the treaty practice examined in Part Two of this

study for any mechanical consequences linked to the “outbreak” of armed

conflict: none of the reviewed treaties become automatically “inoperative.”

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Moreover, contracting Parties would only be allowed to suspend part or

whole of the operation of a treaty on the ground of international armed conflict, but would not be entitled to withdraw permanently from a treaty.

• This study confirms also that it would be difficult to formulate an all-purpose single rule on the legal effect of the reviewed treaties during

international armed conflict. One may even venture to suggest that there is

little prospect of any such rule developing in the future. There is probably

no single rule capable of satisfying the many divergent interests of States in

regard to multilateral treaties during armed conflict. Resort to armed force

in international relations is per definition a breakdown of international diplomacy. In these circumstances, States involved or affected by the conflict

naturally wish to recapture their freedom as much as possible in respect of

treaties they have entered into previously.

• This study also reveals that there have been many instances in which attempts to adapt the old contingency rules to the new jus ad bellum failed. As a

result, most of the current armed conflict contingency clauses may be regarded as defective or even out of date. No distinction is made between

aggressors and victims, and all contracting Parties, regardless of their status

in the conflict, enjoy broad discretion not only as to when to suspend the operation of a treaty in whole or in part, but in addition, as to when to

terminate the suspension.

Because the prohibition to use armed force in international relations is jus

cogens, and because of the primacy of the UN Charter law, it was submitted in

Chapter III that measures taken pursuant to Chapter VII of the UN Charter may

override certain treaty rights and obligations. Therefore, the rights or wrongs of

hostile military activity under UN Charter law may affect the operation of the contingency clauses of maritime treaties.

Nevertheless, it was seen in Chapter II that under the current UN collective security system, authoritative judgements on the legality or illegality of belligerent

activity are rare and that the status of non-contending States is unsettled and

complicated, to say the least.

• The question that arises, then, is whether one should expect every jus ad

bellum contingency to be provided for in treaties on technical matters such

as maritime safety and prevention of marine pollution. The treaty practice

and the travaux préparatoires discussed in this study suggest that this would

not be realistic. Failing widespread agreement internationally on the legality of particular instances of use of armed force, it would be too much to

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ask—if not futile to expect—that Parties to a treaty such as MARPOL 73/78

agree on which belligerent is waging a bellum illegale and should henceforth

not be allowed to resort to the suspension of the convention or its equivalent

domestic provisions. If, on the other hand, there is consensus within the international community as to the identity of the illegal aggressor(s), the

ensuing international sanctions may include binding decisions on matters

of treaty law, as illustrated by Res. 687 (1991) on the cease-fire conditions

imposed against Iraq, and particularly by the ongoing work of the UN Compensation Commission.

• It may nevertheless be useful to provide expressly for the contingency of

armed conflict in multilateral environmental treaties. This would counter

the customary presumption that where an instrument is silent, any Party

may decide to suspend the treaty or some of its provisions during armed

conflict.

A first requirement would be that the possibility of the occurrence of armed

conflict be discussed at the negotiating stage of a treaty. To reduce the negative effects of auto-determination by any Party, the contingency clause should be

restrictive and leave the treaty rights of other Parties unaffected to the maximum

extent possible. To bring future international environmental treaties at least formally in line with the current jus ad bellum precepts, the right to suspend a treaty

should be reserved strictly for non-aggressor States. Finally, the resort to suspension should be subject to continuous review by the other Parties to the treaty—

provided of course that they are also non-victim States.

• There seems little justification for the unqualified substantive exemptions

which many maritime treaties continue to grant to warships and other

State-owned craft. This study has indicated that military forces are by virtue

of the domestic laws of several States already under the obligation to comply

with the environmental duties imposed on other sectors of society, at least

in times of peace. In this day and age, when military roles are changing, one

may require that the latter comply with current environmental standards to

the maximum extent possible. Therefore, a case can be made that exemption

clauses in maritime treaties need to be adapted so as to better reflect these

national practices.

• Finally, this study has signalled that there is major work to be done regarding the incorporation of environmental standards in the full spectrum of

contemporary military operations. Military commanders need to be given

appropriate guidance on environmental standards for all types of military

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operations, including for the so-called operations other than war (OOTW),

which have taken on added significance since the end of the Cold War. This

is required to implement the admonition of the ICJ in its advisory opinion

on the Legality of the Threat or Use of Nuclear Weapons:

. . . States must take environmental considerations into account when assessing what

is necessary and proportionate in the pursuit of legitimate military objectives.

Respect for the environment is one of the elements that go to assessing whether an

action is in conformity with the principles of necessity and proportionality.1

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Table of International Case Law Cited

Permanent Court of International Justice (PCIJ)

• The SS Wimbledon PCIJ, Series A, No. 1 (1923)

• Chorzow Factory Case (indemnity) PCIJ, Series A, No. 17 (1928), 23

• Case relating to the Territorial Jurisdiction of the River Oder, PCIJ, Series A, No.

23 (1929)

• Diversion of Water from River Meuse Case, Judgment, PCIJ, Series A/B, No. 70

(1937)

International Court of Justice (ICJ)

• Corfu Channel Case, Merits, ICJ Rep. (1949), 4

• South West Africa Cases, Second Phase, Judgment, ICJ Rep. (1966), 6

• BarcelonaTraction,LightandPowerCo.Case,SecondApplication, ICJRep.(1970),3

• Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa), Advisory Opinion, ICJ Rep. (1971), 16

• Fisheries Jurisdiction Case (UK v. Iceland), Jurisdiction, ICJ Rep. (1973), 3

• Nuclear Tests Case (Australia v. France), Interim Protection, ICJ Rep.

(1973), 99

• Nuclear Tests Case (Australia v. France), Judgment, ICJ Rep. (1974), 253

• Nuclear Tests Case (New Zealand v. France), Interim Protection, ICJ Rep.

(1973), 135

• Nuclear Tests Case (New Zealand v. France), Judgment, ICJ Rep. (1974), 457

• Case Concerning Diplomatic and Consular Staff in Tehran, Judgment, ICJ Rep.

(1980), 3

• Military and Paramilitary Activities in and against Nicaragua Case, Jurisdiction

and Admissibility, ICJ Rep. (1984), 392

• Military and Paramilitary Activities in and against Nicaragua Case, Merits, ICJ

Rep. (1986), 14

• Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK), Order regarding

Interim Measures of 14 April 1992, ICJ Rep. (1992), 3
• Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Order regarding

Interim Measures of 14 April 1992, ICJ Rep. (1992), 113

• Request for an Examination of the Situation in Accordance with Paragraph 63 of

the Court’s 1974 Judgment in the Nuclear Tests case, ICJ Rep. (1995), 288.

• East Timor Case, Judgment, ICJ Rep. (1995), 90

• Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep.

(1996), 226

• Case concerning Oil Platforms, Preliminary Objections, 12 December 1996,

ICJ General List No. 90

• Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK); (Libya v. U.S.),

Judgment on Preliminary Objections, 27 February 1998, ICJ General List

No. 88

• Case concerning the Gabcíkovo-Nagymaros Project, Merits, 25 September 1997,

ICJ General List No. 92

• Case concerning Oil Platforms, Counter-Claim Order, 10 March 1998, ICJ

General List No. 90

See ICJ website at www.icj-cij.org

Awards of International Arbitral Tribunals

• North Atlantic Coast Fisheries case (1909-1910), Permanent Court of Arbitration, Award of 7 September 1910, 11 RIAA 167 (1961)

• Palmas Island Arbitration, Permanent Court of Arbitration, Max Huber, Arbitrator, Award of 4 April 1928, 2 RIAA 829 (1949)

• Naulilaa Arbitration, Versailles Peace Treaty Arbitral Tribunal, Award of 31

July 1928 on responsibility of Germany, 2 RIAA 1011 (1949); Award of 30

June 1930 on compensation, 2 RIAA, 1035 (1949)

• Trail Smelter Arbitration, U.S.-Canada International Joint Commission Tribunal, Award of 16 April 1938, 3 RIAA 1903 (1949)

• Gut Dam Arbitration, U.S. Agent’s Report before the Lake Ontario Claims

Tribunal, 8 ILM 118 (1969)

• Lac Lanoux Arbitration, Spain-France Arbitral Tribunal, Award of 16 November 1967, 24 ILR, 101

• Dalmia Cement Ltd. v National Bank of Pakistan, Award of 18 December 1976

by Pierre Lalive, 67 ILR, 611

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• Rainbow Warrior Arbitration, France-New Zealand Arbitration Tribunal,

Award of 30 April 1990, 82 ILR, 499

• “La Bretagne,” Canada-France Arbitration Tribunal, Award of 17 July 1986;

82 ILR, 590

• Libyan Arab Foreign Investment Co. (Lafico) and The Republic of Burundi,

Lafico and Burundi Arbitral Tribunal, Award of 4 March 1991, 96 ILR 179

Other International Decisions

• Polish Forests Case, United Nations War Crimes Commission, History of the

United Nations War Crimes Commission and the Development of the Laws of

War, London: HMSO, 412-3 (1950)

• The Trial of German Major War Criminals, Nuremberg Military Tribunal,

Part 22, 517 (1950)

• Well Blowout Control Claim, United Nations Compensation Commission,

Award of 18 December 1996, 36 ILM 1289 (1997)

• Decision in Prosecutor v. Dusko Tadic, 2 October 1995, ICTY No.

IT-94-I-AR72, 35 ILM 32 (1996)

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Table of Treaties Cited

1907-1919

• Convention IV Respecting the Laws and Customs of War on Land and its annex:

Regulation concerning the Laws and Customs of War on Land (Hague Convention

IV and Hague Regulations), The Hague, 18 October 1907, in force 26 January

1910; Schindler, D. and Toman, J., The Laws of Armed Conflicts, 69 (1988)

• Convention V Respecting the Rights and Duties of Neutral Powers and Persons in

Case of War on Land (Hague Convention V), The Hague, 18 October 1907, in

force 26 January 1910; Schindler & Toman, op. cit., 942

• Convention VIII Relative to the Laying of Automatic Submarine Contact Mines

(Hague Convention VIII), The Hague, 18 October 1907, in force 26 January

1910; Schindler & Toman, op. cit., 805

• Convention XIII concerning the Rights and Duties of Neutral Powers in Naval

War (Hague Convention XIII), The Hague, 18 October 1907, in force 26

January 1910; Schindler & Toman, op. cit., 951

• Convention for the Unification of Certain Rules of Law relating to Assistance and

Salvage at Sea, Brussels, 23 September 1910, in force 1 March 1913; Singh,

N., International Maritime Law Conventions, vol. IV, 3084 (1983); Parry, C.,

Consolidated Treaty Series, vol. 212, 187-9

• Convention for the Safety of Life at Sea, London, 20 January 1914, never entered into force, HMSO publication, 1914 Cd. 7246

• Versailles Peace Treaty, 28 June 1919, Parry, op. cit., vol. 225, 188

• Peace Treaties of Saint-Germain-en-Laye, 10 September 1919; Parry, op. cit.,

vol. 226, 8, 170, 182

• Peace Treaty of Neuilly-sur-Seine, 27 November 1919, Parry, op. cit., vol. 226, 332

• Convention on Air Navigation, Paris, 13 October 1919, Parry, op. cit., vol. 226, 246

1926-1940

• International Convention for the Unification of Certain Rules relating to the Immunity of State-owned Vessels and Additional Protocol, Convention signed at

Brussels, April 10, 1926, and Additional Protocol signed at Brussels, May
24th, 1934; 176 LNTS, 199, 215; Signed at Brussels, 24 May, 1934, reprinted

in UN Doc. A/46/10, Chapter II, Jurisdictional Immunities of States and their

Property [hereinafter ILC, Jurisdictional Immunities], 175

• Washington Naval Disarmament Treaty (Five Power Naval Treaty), Washington, 6 February, 1922, in force 17 August 1923; 25 LNTS 201

• International Convention for the Safety of Life at Sea, London, 31 May 1929, in

force 1 January 1933; HMSO Treaty Series No. 34 (1932); Cmnd 4198

• International Convention Respecting Load Lines, London, 5 July 1930, l January 1933, UKTS No. 35 (1932); 135 LNTS 303

• International Convention for the Unification of Certain Rules relating to assistance

and salvage of aircraft or by aircraft at sea, Brussels, September 28, 1938, not in

force; Singh, N., International Maritime Law Conventions, vol. IV, 3091 (1983)

• Treaty on International Commercial Navigation Law, Montevideo, 19 March

1940; 37 AJIL 114 (Supp. 1943), reprinted in ILC, Jurisdictional Immunities,

177

1944-1954

• Convention on International Civil Aviation (ICAO Convention) Chicago, 7

December 1944, in force 4 April 1947, 15 UNTS 295

• Agreement for the Prosecution and Punishment of the Major War Criminals of the

European Axis, and Charter of the International Military Tribunal (Nuremberg

Charter), London, 8 August 1945; Schindler & Toman, op. cit., 912

• International Convention for the Safety of Life at Sea, London, 10 June 1948,

entry into force 19 November 1952; HMSO, Cmnd. 7492

• Convention I for the Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field (Geneva Convention I), Geneva, 12 August 1949, in

force 21 October 1950; Schindler & Toman, op. cit., 23

• Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II), Geneva, 12

August 1949, in force 21 October 1950, Schindler & Toman, op. cit., 51

• Convention III relative to the Treatment of Prisoners of War (Geneva Convention III), Geneva, 12 August 1949, in force 21 October 1950, Schindler &

Toman, op. cit., 75

• Convention IV Relative to the Protection of Civilian Persons in Time of War

(Geneva Convention IV), Geneva, 12 August 1949, in force 21 October 1950,

Schindler & Toman, op. cit., 153

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• International Convention for the Prevention of Pollution of the Seas by Oil (1954

OILPOL Convention) London, 12 May 1954, in force 26 July 1958, 327

UNTS 3

• Convention for the Protection of Cultural Property in the Event of Armed Conflict,

The Hague, 14 May 1954, in force 7 August 1956; Schindler & Toman, op.

cit., 747

• Protocol for the Protection of Cultural Property in the Event of Armed Conflict,

The Hague, 14 May 1954, in force 7 August 1956; Schindler & Toman, op.

cit., 777

1958-1962

• Convention on the Territorial Sea and the Contiguous Zone, Geneva, 20 April

1958, in force 10 September 1964; 516 UNTS 205

• Convention on the Continental Shelf, Geneva, 29 April 1958, in force 10 June

1964, 499 UNTS 311

• Convention on the High Seas, Geneva, 29 April 1958, in force 30 September

1962, 450 UNTS 82

• The Antarctic Treaty, Washington, 1 December 1959, in force 23 June 1961;

402 UNTS 71

• International Convention for the Safety of Life at Sea, London, 17 June 1960, in

force 26 May 1965, 536 UNTS 27

• OECD (Paris) Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 29 July 1960, in force 1 April 1968; 956 UNTS 251

• Convention on the Liability of Operators of Nuclear Ships (1962 NS Convention)

Brussels, 25 May 1962, not in force, 57 AJIL 268 (1963)

1963-1969

• OECD Agreement Supplementary to the Paris Convention of 1960 on Third Party

Liability in the Field of Nuclear Energy, Brussels, 31 January 1963, in force 4

December 1974; 1041 UNTS 358

• Convention on Civil Liability for Nuclear Damage, Vienna, 29 May 1963, in

force 12 November 1977; 1063 UNTS 265

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• Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and

Under Water (PTBT), Moscow, 5 August 1963, in force 10 October 1963; 480

UNTS 43

• International Convention on Load Lines, London, 5 April 1966, in force 21

July 1968, 640 UNTS 133

• Protocol to amend the Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea, May 27, 1967, in force 15 August 1977;

Singh, International Maritime Law Conventions, vol. IV, 3089

• European Convention for the Protection of Animals during International Transport, Paris, 13 December 1968, in force 20 February 1971; UNEP, Selected

Multilateral Treaties in the Field of the Environment, vol. I, 216

• African Convention on the Conservation of Nature and Natural Resources, Algiers, 15 September 1968, in force 9 October 1969; 1001 UNTS 4

• Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January

1980, 8 ILM 679 (1969)

• Agreement for Co-operation in Dealing with Pollution of the North Sea by Oil and

other Harmful Substances, Bonn, 9 June 1969, in force 9 August 1969; 704

UNTS 3

• International Convention Relating to Intervention on the High Seas in Cases of Oil

Pollution Damage, Brussels, 29 November 1969, in force 6 May 1975; 970

UNTS 212

• International Convention on Civil Liability for Oil Pollution Damage (CLC),

Brussels, 29 November 1969, in force 19 June 1975, 973 UNTS 3

1971-1973

• Convention on Wetlands of International Importance Especially as Waterfowl

Habitat (1971 Ramsar Convention) Ramsar, 2 February 1971, in force 21 December 1975; 996 UNTS 245

• Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other

Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof (1971 Seabed Treaty) 11 February 1971, in force 18 May 1972;

955 UNTS 115

• Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, Brussels, 17 December 1971, in force 15 July 1975, Cmnd.,

5094; UNEP, Selected Treaties, vol. I, 253

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• International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971 Fund Convention) Brussels, 18

December 1971, in force 16 October 1978, 11 ILM 284 (1972)

• European Convention on State Immunity and Additional Protocol, Convention

(and Protocol) done at Basle, 16 May 1972, Protocol (1985), in force 11 June

1976, Council of Europe, No. 74; European Treaty Series, No. 74,

Strasbourg, 1972; reprinted in ILC, Jurisdictional Immunities, 156

• Convention for the Prevention of Marine Pollution by Dumping from Ships and

Aircraft (Oslo Dumping Convention), Oslo, 15 February 1972, in force 7 April

1974, 932 UNTS 3

• Convention on International Liability for Damage Caused by Space Objects, London/Washington/Moscow, 29 March 1972, in force 1 September 1972; 961

UNTS 187

• Convention on the Prohibition of the Development, Production and Stockpiling of

Bacteriological (Biological) and Toxin Weapons, and on their Destruction, London/Washington/Moscow, 10 April 1972, in force 26 March 1975; 1051

UNTS 163

• Agreement for the Prevention of Incidents at Sea (United States-USSR)

(INSCEA), Moscow, 22 May 1972, 11 ILM 778 (1972)

• Convention on the International Regulations for Preventing Collisions at Sea

(COLREGS), London, 20 October 1972, in force 15 July 1977, UKTS 77

(1977); 28 UST 3459; TIAS No. 8587

• Convention for the Protection of World Cultural and Natural Heritage (World

Heritage Convention), Paris, 17 November 1972, in force 17 December

1975; 11 ILM 1358 (1972)

• Convention on the Prevention of Marine Pollution by Dumping of Wastes and

Other Matter (London Dumping Convention), London/Mexico City/Moscow/Washington D.C., 29 December 1972, in force 30 August 1975, 1046

UNTS 120

• Convention on International Trade in Endangered Species of Wild Fauna and

Flora (1973 CITES), Washington, 3 March 1973, in force 1 July 1975; 993

UNTS 243

• International Convention for the Prevention of the Pollution by Ships (MARPOL

73), London, 2 November 1973, not in force; 12 ILM 1319, 1434 (1973)

• Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by

Substances other than Oil (1973 Intervention Protocol), London, 2 November

1973, in force 30 March 1983, 13 ILM 605 (1974)

261

International Environmental Law and Naval War
1974-1977

• Convention on the Protection of the Marine Environment of the Baltic Sea Area

(Helsinki Convention), Helsinki, 22 March 1974, in force 3 May 1980; 13

ILM 546 (1974)

• Convention for the Prevention of Marine Pollution from Land-Based Sources,

Paris, 4 June 1974, in force 6 May 1978, 13 ILM 352 (1974)

• International Convention for the Safety of Life at Sea (SOLAS), 1 November

1974, in force 25 May 1980; 14 ILM 959 (1975)

• Convention for the Protection of the Mediterranean Sea Against Pollution, Barcelona, 16 February 1976, in force 12 February 1978; 15 ILM 290 (1976)

• Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping

from Ships and Aircraft, Barcelona, 16 February 1976, in force 12 February

1978, 15 ILM 300 (1976)

• Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources, London, 1 May 1977, not

yet in force, 16 ILM 1450 (1977)

• Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), New York, concluded 10

December 1976, opened for signature 18 May 1977, in force 5 October 1978,

1108 UNTS 151; Schindler & Toman, op. cit., 164

• Protocol I Additional to the 1949 Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional

Protocol I), Geneva, 8 June 1977, in force 7 December 1978; Schindler &

Toman, op. cit., 621

1979-1982

• Egypt-Israel: Treaty of Peace, Washington, 26 March 1979, 18 ILM 362 (1979)

• European Convention for the Protection of Animals for Slaughter, Strasbourg, 10

May 1979, in force 11 June 1982, UNEP, Selected Treaties, vol. II, 70

• Protocol Relating to the Convention for the Prevention of Pollution from Ships

(MARPOL 78), London, 17 February 1978, in force 2 October 1983, 17 ILM

246 (1978)

262

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• Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment From Pollution (Kuwait Regional Convention), Kuwait, 24 April

1978, in force 1 July 1979, 17 ILM 526 (1978)

• Kuwait Protocol concerning Co-operation in Combating Pollution by Oil and

Other Harmful Substances in Cases of Emergency, Kuwait, 24 April 1978, in

force 1 July 1979, 17 ILM 526 (1978)

• Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23

June 1979, in force 1 November 1983; 19 ILM 15 (1980)

• Convention on Long-Range Transboundary Air Pollution (LRATP), Geneva, 13

November 1979, in force 16 March 1983; 18 ILM 1442 (1979)

• Convention on Prohibitions or Restrictions on the Use of Certain Conventional

Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Inhumane Weapons Convention), Geneva, 10 October

1980, in force 2 December 1983; 19 ILM 1523 (1980); Schindler & Toman,

op. cit., 179

• Convention on the Conservation of Antarctic Marine Living Resources

(CCAMLR), Canberra, 20 May 1980, in force 7 April 1982; 19 ILM (1980)

• Convention for the Co-operation in the Protection and Development of the Marine

and Coastal Environment of the West and Central African Region, Abidjan, 23

March 1981, in force 5 August 1984, 20 ILM 746 (1981)

• Convention for the Protection of the Marine Environment and Coastal Area of the

South-East Pacific, Lima, 12 November 1981, in force 19 May 1986; UNEP,

Selected Treaties, vol. II, 130

• Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, Jeddah, 14 February 1982, in force 20 August 1985; UNEP, Selected

Treaties, vol. II, 144

• United Nations Convention on the Law of the Sea, Montego Bay, 10 December

1982, in force 16 November 1994, 21 ILM 1261 (1982)

1983-1986

• Convention for the Protection and Development of the Marine Environment of the

Wider Caribbean Region, Cartagena de Indias, 24 March 1983, in force 11 October 1986, 22 ILM 221 (1983)

• Protocol to the 1969 Civil Liability Convention, 25 May 1984, not yet in force,

IMO Doc LEG./Conf.6/66 of 25 May 1984

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• Protocol to the 1971 IOPC Convention, 25 May 1984, not yet in force, IMO

Doc LEG./Conf.6/67 of 25 May 1984

• Convention for the Protection of the Ozone Layer, Vienna, 22 March 1985, in

force 22 September 1988, 26 ILM 1529 (1987)

• Convention for the Protection, Management and Development of the Marine and

Coastal Environment of the Eastern African Region, Nairobi, 21 June 1985, not

in force (1995); UNEP, Selected Treaties, vol. II, 324

• Association of South-East Asian Nations Agreement on the Conservation of Nature

and Natural Resources (ASEAN Agreement), Kuala Lumpur, 9 July 1985,

not in force (1995), UNEP, Selected Treaties, vol. II, 337

• Convention on the Early Notification of Nuclear Accidents, Vienna, 26 September 1986, in force 27 October 1986, 25 ILM 1370 (1986)

• Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, Vienna, 26 September 1986, in force 26 February 1987, 25 ILM 1377

(1986)

• Convention for the Protection of the Natural Resources and Environment of the

South Pacific Region (SPREP), Noumea, 24 November 1986, in force 22 August 1990, 26 ILM 38 (1987); UNEP, Selected Treaties, vol. II, 372

• Protocol for the Prevention of Pollution of the South Pacific Region by Dumping,

Noumea, 25 November 1986, in force 18 August 1990; UNEP, Selected

Treaties, vol. II, 381

• Convention on the Law of Treaties between States and International Organisations

or between International Organisations, Vienna, 21 March 1986, not in force

(1997), 25 ILM 543 (1986)

1987-1989

• European Convention for the Protection of Pet Animals, Strasbourg, 13 November 1987, in force 1 May 1997, UNEP, Selected Treaties, vol. II, 403

• Protocol on Substances that Deplete the Ozone Layer, Montreal, 16 September

1987, in force 1 January 1989; 26 ILM 1987, 154.

• Convention on the Regulation of Antarctic Mineral Resource Activities

(CRAMRA), Wellington, 2 June 1988, not yet in force; 27 ILM 868 (1988)

• Joint Protocol Relating to the Application of the Vienna Convention and the Paris

Convention, Vienna, 21 September 1988, in force 27 April 1992, UNEP, Selected Treaties, vol. II, 447

264

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• Basle Convention on the Control of Transboundary Movement of Hazardous

Wastes and Their Disposal, Basle, 22 March 1989, in force 24 May 1992, 28

ILM 657 (1989)

• International Convention on Salvage, London, 28 April 1989, in force 14 July

1996, IMO/LEG/Conf. 7/27

• Agreement on the Prevention of Dangerous Military Activities (DMAA), Moscow, 12 June 1989, in force 1 January 1990, 28 ILM 877 (1989)

• UN/ECE Convention on Civil Liability for Damage Caused during Carriage of

Dangerous Foods by Road, Rail and Inland Navigation Vessels, Geneva, 10 October 1989, not in force, UN doc. ECE/Trans/79

1990-1992

• Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean Region (SPAW Protocol), Kingston, 18 January 1990, not in force,

Protocol to the 1983 Convention, 1 Ybk. IEL (1990); Int’1 Env’. Rep. 21:

3261

• International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC Convention, London, 30 November 1990, in force 13 May 1995, 30

ILM 733 (1991)

• Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October

1991, not in force (1995); 30 ILM 1461 (1991)

• Convention on the Protection of the Marine Environment of the Baltic Sea Area

(Helsinki Convention), Helsinki, 9 April 1992, see also May 1980 Convention,

UN LOS Bulletin, No. 22, Jan. 1993, at 54

• Convention on the Protection of the Black Sea Against Pollution, Bucharest, 21

April 1992, not in force (1995), 31 ILM 1101 (1992)

• United Nations Framework Convention on Climate Change (UNFCCC), New

York, 9 May 1992, in force 24 March 1994, 31 ILM 849 (1992)

• Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29

December 1993, 31 ILM 822 (1992)

• Convention for the Protection of the Marine Environment of the North-East Atlantic (Ospar Convention), Paris, 22 September 1992, not in force (1995), 32

ILM 1069 (1993)

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1993-1997

• Convention on the Prohibition of the Development, Production, Stockpiling and

Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention), 13 January 1993, in force 29 April 1997, 32 ILM 800

• Convention on Civil Liability for Damage Resulting From Activities Dangerous to

the Environment (1993 Lugano Convention), Lugano, 21 June 1993, not in

force (April 1998), 32 ILM 1228 (1993)

• Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, UNGA Res. 48/263, 29 July

1994, in force 28 July 1996, 33 ILM 1309

• Israel-Jordan: Treaty of Peace, Done at Arava/Araba Crossing Point, 26 October 1994, 34 ILM43 (1995)

• General Framework Agreement for Peace in Bosnia and Herzegovina, Paris, 14

December 1995 (Dayton/Paris Peace Agreements), 35 ILM 75 (1996)

• Comprehensive Test Ban Treaty, concluded 10 September 1996, opened for

signature 24 September 1996, 35 ILM 1439 (1996)

• Convention on Liability and Compensation for Damage in connection with the

Carriage of Hazardous and Noxious Substances by Sea (HNS Convention),

London, 3 May 1996, 35 ILM 1406 (1996)

• Protocol to the Convention on the Prevention of Marine Pollution by Dumping of

Wastes and Other Matter (London Convention), London, 7 November 1996,

36 ILM 1 (1997)

• Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 21 May 1997, 36 ILM 700 (1997)

• Protocol to amend the 1963 Vienna Convention on Civil Liability for Nuclear

Damage, Vienna, 12 September 1997, IAEA, PR 97/21

• Convention on Supplementary Compensation for Nuclear Damage, Vienna, 12

September 1997, IAEA, PR 97/21

266

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Notes

Introduction

1. ICJ Rep. (1996), 226 at 243, para 32.

2. Ibid., 242, para 30, in fine.

3. NWP l-14M, para 8.1.3 (1996).

4. Under the auspices of the Institut de Droit International, 26 Ann. IDI (1913), 641–672.

5. Under the auspices of International Institute of Humanitarian Law, published by Cambridge

University Press (1995).

Chapter I

1. Birnie & Boyle, International Law & The Environment (1992), 1, 9.

2. Caldwell, International Environmental Policy (1990), 19, 22, 30ff.

3. Hohmann, Präventive Rechtspflichten und -prinzipien des modernen Umweltvölkerrechts (1992),

20ff., 35ff., 59ff.

4. Kiss & Shelton, International Environmental Law (1991), 33–7.

5. Report of the Home Office, The Torrey Canyon, Cmnd. (1967) 3246; “Chronique de faits

internationaux: France, Grande Bretagne et Libéria. Affaire du Torrey Canyon,” 71 RGDIP (1967),

1092–1099; Smith, State Responsibility and the Marine Environment (1988), 219–20; Dupuy &

Rémond-Gouilloud, in Dupuy & Vignes, A Handbook on the New Law of the Sea, vol. II. (1991), Chapter 22, 1153–1158; Kiss & Shelton, op. cit., 38; Birnie & Boyle, op. cit., 251; Sands, Principles of

International Environmental Law, vol. I (1995), 333ff.; Gehring & Jachtenfuchs, 4 EJIL (1993), 97–99.

6. Meadows et al., Limits to Growth. A Report to the Club of Rome (1972).

7. Sohn, 14 Harv. ILJ( 1973), 424–5; Caldwell, op. cit., 49.

8. Birnie & Boyle, op. cit., 39–40.

9. UN Doc. A/CONF 48/14 and Corr. 1 (1972), 11 ILM (1972), 1416; Sohn, 14 Harv. ILJ (1973),

433–9; Sands, op. cit., 37; Palmer, G., 86 AJIL (1992), 266.

10. ‘Im umweltbewusten Kreisen beginnt die Zeitrechnung im Jahr 1972, dem Jahr der

Stockholmer Umweltkonferenz’: Hohmann, op. cit., 67, fn. 37

11. Ibid., 117–40, 140–158, 158–63; Sands, op. cit., 650–2; Boyle, 30 ICLQ (1990), l–26; Symposium on State Responsibility and Liability for Injurious Consequences Arising Out of Acts Not Prohibited by

International Law, 16 NYIL (1985), 3–278.

12. Sands, op. cit., 38–9.

13. Ibid., 87–9; Hohmann, op. cit., 166–80, 180–189, 190–209.

14. UNEP was established as a special fund by the UN General Assembly (Res. 2997 (XXVII)

1972) upon a recommendation by UNCHE: Caldwell, op. cit., 71; Sands, op. cit., 71–2; Timoshenko, in

Al-Nauimi & Meese, International Legal Issues Arising Under the United Nations Decade of International

Law (1995), 154.

15. Kiss & Shelton, op. cit., 45, 59ff.; Plant, in Churchill & Freestone, International Law and Global

Climate Change (1991), 167–8; Birnie & Boyle, op. cit., 4l–52; Sands, op. cit., 38; Palmer, G., 86 AJlL

(1992), 266, fn. 11.

16. UNGA Res. 37/7, adopted on 28 October 1982, adopted by a vote of 111 in favour, 18 abstentions and one vote against (U.S.), 23 ILM (1983), 455.

17. Sands, op. cit., 42–44; Birnie & Boyle, op. cit., 431–2; Hohmann, op. cit., 81–89.

18. Sands, op. cit., 48ff.; Barber & Dickson, in Cooper & Palmer, Just Environments (1995), 124.
19. UN Framework Convention on Climate Change; Convention on Biological Diversity; a set of

“Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests”: See Sands et al.,

Documents in International Environmental Law (1994), vol. II A, 246, 845, 874; Adede, in Kiss &

Burhenne-Guilmin, A Law for the Environment (1994), 16.

20. See chapter 1, Preamble to Agenda 21, para 1.3 in the Report on UNCED, UN Doc. A/151/26

(vol. I).

21. Sands, op. cit., 52ff.

22. Sands, 4 EJIL (1993), 386–7.

23. Report of the UNGA 19th Special Session (UNGASS), 23–28 June 1997: UN Doc. A/S-19–29,

27 June 1997.

24. 5 Earth Negotiations Bulletin, No. 88 (30 June 1997).

25. See infra 1.2.2. C for the concept of sustainable development.

26. Cited by Birnie & Boyle, op. cit., 3.

27. ICJ Rep. (1996), 241–2, para 29; see too Gabcíkovo-Nagymaros Project, judgment of 25 September 1997, ICJ General List No. 92, para 112.

28. But see definitions by Meyer and Tolbert in Plant, Environmental Protection and the Law of War

(1992), 255–6 & 257–61.

29. Op. cit., 22.

30. Caldwell, op. cit., 27; Kiss & Shelton, op. cit., 9.

31. Lehnes, Probleme der eindeutigen Emittlung der Ausdehnung, der Dauer und der Schwere einer

Umweltschädigung, (1993), 22–23, paras 9.1, 9.2 (on file with author).

32. Palmer, J., in Cooper & Palmer, op. cit., 27–8.

33. Moroni et al., in Bourdeau et al., Environmental Ethics (1990), 141–54; Robinson, ibid., 263;

Palmer, J., op. cit., 28.

34. Report of the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities (hereinafter: Working Group on Environmental Damage),

UNEP/Env. Law/3/Inf. 1, 15 October 1996, 10, para 42.

35. Stone, 45 SCLR (1972), 456.

36. Stone, in Westing, Cultural Norms, War and the Environment (1988), 77–9.

37. Lynch, in Bourdeau et al., op. cit., 160.

38. Stone, 59 SCLR (1985), 4–5.

39. Glennon, 84 AJIL (1990), 1–2.

40. D'Amato & Chopra, 85 AJIL (1991), 23.

41. Cooper, in Cooper & Palmer, Just Environments, 144.

42. Lynch, in Bourdeau et al., op. cit., 161.

43. Moroni et al., op. cit., 15; Cooper, op. cit., 146.

44. Preambular paragraphs; Sohn, 14 Harv. ILJ (1973), 436.

45. UNGA Res. 37/7 on a World Charter for Nature, 28 October 1982, 37 UNGAOR, (Supp. No.

51), 17; II A Documents in International Environmental Law, 31.

46. Glennon, 84 AJIL (1990), 5–10.

47. See infra, 1.2. 2. C.

48. Stone, in Westing, Cultural Norms, War and the Environment (1988), 76–77; D’Amato &

Chopra, 85 AJIL (199l), 23.

49. The Preambular paragraphs recognise both the intrinsic value of biological diversity and its

value for humankind.

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50. See infra, 1.2.1. C.

51. Birnie & Boyle, op. cit., 423–4.

52. See Stone’s example about what people would prefer if asked to choose between an additional

1,000 million persons on earth, or an additional 1,000 million trees, in Westing, Cultural Norms, 78.

53. Stone, 45 SCLR (1972), 489.

54. For concept of “Reflexwirkung” see Spieker, Gewohnheitsrechtlicher Schutz der natürlichen

Umwelt im internationalen bewaffneten Konflikt (1992), 184.

55. Stone, 45 SCLR (1972), 462ff.

56. Infra, 2.2.

57. Boelaert-Suominen & Cullinan, Legal and Institutional Aspects of Integrated Coastal Area Management in National Legislation (1994), l–7; Kiss & Shelton, op. cit., 307.

58. Between 1980 and 1995, the UNEP multilateral treaty register increased from 102 to 164:

Bodansky, 3 Ind. J. Global Legal Stud. (1995), 106, fn. 1; There could be more than a 1,000 treaties dealing with environmental protection: O’Connell, M., 35 GYIL (1992), 295; Sands counts more than

2,000 bilateral environmental treaties since the mid-l8th century: op. cit., 106.

59. A first attempt was the 1982 World Charter for Nature, mentioned supra, 1.1.1; A second, the

“Legal Principles for Environmental Protection and Sustainable Development,” annexed to the 1987

Report of the World Commission on Environment and Development: Our Common Future (1987); A

further failed attempt was the suggested “Earth Charter” at the 1992 UNCED Conference: Sands, 4

EJIL (1993), 381–2; A fourth example is the IUCN-proposed “International Covenant on Environment and Development,” launched at the UN Congress on Public International Law, New York,

13–17 March 1995 (on file with author).

60. O’Connell, M., 3 Ind. J. Global Legal Stud. (1995), 53.

61. Pisillo-Mazzeschi, in Francioni & Scovazzi, International Responsibility for Environmental

Harm (1991), 17, 34.

62. Spieker, op. cit., 186; Birnie & Boyle, op. cit., 3, 102;

63. Birnie & Boyle, ibid., 11.

64. O’Connell, M., 35 GYIL (1992), 303.

65. Brownlie uses the terms “general” and “customary” international law interchangeably: 13

Natural Resources Journal (1973), 179.

66. Bodansky, 3 Ind. J. Global Legal Stud. (1995), 106

67. Kiss & Shelton, op. cit., l61.

68. Ibid., 162; Dupuy & Rémond-Gouilloud, op. cit., 1169.

69. Signed by 31 States; Dupuy & Rémond-Gouilloud, op. cit., 1169.

70. Arts. 24, 25.

71. Art. 5.

72. Dupuy & Rémond-Gouilloud, op. cit., 1155–57.

73. It declares that all States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, harm living resources and marine life,

damage amenities or interfere with other legitimate uses of the sea.

74. Recommendations 86–94 on marine pollution: Kiss & Shelton, op. cit., 164.

75. Annex VI containing Regulations for the Prevention of Air Pollution from Ships was adopted

on 26 September 1997 by the International Conference on Air Pollution Prevention, 15–26 September

1997; IMO Fax 17/97 of 26 September 1997.

76. See IMO/Lloyd's data of l/2/98: MARPOL 73/78 (Annex I/II) has been ratified by 104 States

representing 93.49 percent of world tonnage.

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International Environmental Law and Naval War
77. Sands, op. cit., 327; Status on 31/10/97: between 83 and 100 States, covering 82.02 to 93.47 percent of world tonnage.

78. Schachte, 23 ODIL (1992), 60–l.

79. Birnie & Boyle, op. cit., 252–3.

80. Art. 45

81. Art. 220

82. Press Release UN Office of Legal Affairs, SEA/1396/Rev. 1 of 19 November 1993.

83. Agreement Relating to the Implementation of Part XI of the Convention, GA Res. 48/263 of

29 July 1994, adopted by a vote of 121 in favour, none against and seven abstentions, into force since 28

July 1996; Platzöder, 4 EJIL (1993), 390–402; Stevenson & Oxman, 88 AJIL (1994), 488; Anderson, 44

ICLQ (1995), 314ff.; Freestone & Mangone, The Law of the Sea Convention: Unfinished Agenda and Future Challenges, 10 IJMCL 1995, Special Issue, Number 2.

84. Malanczuk, Akehurst’s Modern Introduction to International Law (1997), 174.

85. Source: UN Division for Ocean Affairs and the Law of the Sea

86. Even the U.S. administration seemed to embrace Part XII during the 1980s: Schachte, 23

ODIL (1992), 56; Stevenson & Oxman, 88 AJIL (1994), 490; Larson, 25 ODIL (1994), 81.

87. Birnie & Boyle, op. cit., 253, 255; Kiss & Shelton, op. cit., 165; Dupuy & Rémond-Gouilloud,

op. cit., 1187–8.

88. Dupuy & Rémond-Gouilloud, ibid., 1193; Schachte, 23 ODIL (1992), 61.

89. Anderson, 44 ICLQ (1995), 313, 320–l.

90. Agenda 21, paras 17.1, 17.22.

91. Birnie & Boyle, op. cit., 260.

92. Sands, op. cit., 303–5.

93. Birnie & Boyle, op. cit., 261; Sands, op. cit., 303.

94. Birnie & Boyle, op. cit., 261.

95. Sands, op. cit., 297.

96. Ibid., 301.

97. Birnie & Boyle, op. cit., 262; Sands, op. cit., 301.

98. Heintschel von Heinegg & Donner, 37 GYIL (1994), 311; Walker, in Grunawalt et al., Protection of the Environment During Armed Conflict (1996), 189.

99. E.g., Art. 3, 1976 Convention for the Protection of the Mediterranean Sea Against Pollution;

Art. 3, 1985 Convention for the Protection, Management and Development of the Marine and Coastal

Environment of the Eastern African Region; Art. 4, 1986 Convention for the Protection of the Natural

Resources and Environment of the South Pacific Region.

100. Arts. 208, 210, 211.

101. See literature cited by Birnie & Boyle, op. cit., 256, fn. 16.

102. Anderson, 44 ICLQ (1995), 321; Birnie & Boyle, op. cit., 54.

103. Birnie & Boyle, op. cit., 266; Dupuy & Rémond-Gouilloud, op. cit., 1183; Walker, op. cit., 207,

fn. 33; Heintschel von Heinegg & Donner, 37 GYIL (1994), 310; Schachte, 23 ODIL (1992), 62–3.

104. For a definition of “watercourse” see, e.g., Art. 2 (a) and (b) of the 1997 International Watercourse Convention mentioned below and ILC Report (1994), UN Doc. A/49/10, 200.

105. Kiss & Shelton, op. cit., 208.

106. UN Doc. A/51/869, 11 April 1997, 51st session, Report of the 6th Committee.

107. ILC Report (1994), UN Doc. A/49/10, 210.

108. Arts. 5–10.

109. Arts. 11–19.

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110. Art. 20.

111. Art. 21.

112. Art. 23.

113. Arts. 27–28.

114. Art. 29.

115. Birnie & Boyle, op. cit., 219–222; Kiss & Shelton, op. cit., 208; see too ILC Report by

McCaffrey, Yearbook ILC (1986), vol. II, pt. 1, 103–5, 1l0ff.; Schwebel, ibid., (1982), pt. I, 75ff.; For

States’ views, see ILC Report (1987), UN Doc. A/42/10, 70 & and ILC Report (1994), UN Doc. A/49/10,

222–30.

116. Judgment of 25 September 1997, ICJ General List No. 92, para 97, citing Art. 5 para 2 of the

1997 International Watercourse Convention in full.

117. Birnie & Boyle, op. cit., 219–242.

118. River Oder Case, PCIJ (1929), Ser. A, No. 23; Diversion of Water from the Meuse Case, PCIJ,

(1937) Ser. A/B, No. 70; Lac Lanoux arbitration, 24 ILR (1957), 101; Gut Dam Arbitration, 8 ILM

(1968), 118; Gabcíkovo-Nagymaros Project, Judgment of 25 September 1997, ICJ General List

No. 92.

119. Birnie & Boyle, op. cit., 225; Kiss & Shelton, op. cit., 208; Lammers, Pollution of International

Watercourses (1984), 124–7; but see Sands, op. cit., 347 who suggests that this may be changing.

120. On the controversy surrounding this article, see McCaffrey & Sinjela, 92 AJIL (1998),

100–102.

121. ILC Report (1994), UN Doc. A/49/10, 236.

122. Ibid., 291.

123. McCaffrey & Sinjela, 92 AJIL (1998), 101.

124. The requirement of significant harm is only included in Art. 22; the threshold of harm of

Arts. 20 and 23 may be lower: ILC Report (1994), UN Doc. A/49/10, 293.

125. ILC Report (1994), UN Doc. A/49/10, 282, 298, 299.

126. Ibid., 283–9; see too, Kiss & Shelton, op. cit., 20.

127. McCaffrey & Sinjela, 92 AJIL (1998), 103–4.

128. Brownlie, Principles of Public International Law (1990), 233–4; Kiss & Shelton, op. cit., 203.

129. For a definition of these terms see 1992 Biodiversity Convention, Art. 2.

130. Birnie & Boyle, op. cit., 418.

131. Sands, op. cit., 433–37.

132. Ibid., 422–432; Van Dyke, in Freestone & Mangone, op. cit., 219–227.

133. Birnie & Boyle, op. cit., 418–9.

134. Ibid., 419–445.

135. For a definition see Ramsar Convention, Art. 1.

136. Art. 2. (2), (3), (4).

137. Art. 2(6).

138. Art. 4 (2).

139. Art. 3 (l), (2), Art. 4 (l), (2), (4).

140. Birnie & Boyle, op. cit., 465.

141. Source: The Ramsar Convention Bureau.

142. More than 150 to date, source: UNESCO World Heritage Centre, 1 February 1998.

143. Defined in Art. 2.

144. Art. 3.

145. Birnie & Boyle, op. cit., 469.

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146. Art. 11 (1); By December 1997 the World Heritage List included 418 cultural sites, 114 natural sites and 20 mixed properties in 112 States; Source: UNESCO World Heritage Centre, 1 February

1998.

147. Art. 11 (4).

148. Source: UNESCO World Heritage Centre, 1 February 1998.

149. Arts. 4, 5.

150. Art. 6 (l), (2).

151. Art. 6 (3).

152. Parts III, IV and V.

153. Source: Biodiversity Convention Secretariat.

154. Art. 4.

155. Art. 6.

156. Art. 7.

157. Arts. 8 & 9.

158. Art. 10.

159. Art. 11.

160. Art. 12.

161. Art. 13.

162. Art. 14.

163. Art. 5.

164. U.S. Declaration, 22 May 1992, 21 ILM (1992), 848; but the U.S. has signed since: Malanczuk,

op. cit., 249.

165. Sands, op. cit., 386–7.

166. The provision was controversial during the preparatory stages and attracted various interpretative statements as soon as it was adopted: Chandler, 4 Colo. JIEL & P (1993), 148–50.

167. Written Pleading, HC-M, para 4.23.

168. Oral Pleading for Hungary (Mr. Sands), CR 97/12, 67, para 10.

169. The Court noted neither party claimed that new peremptory norms of environmental law had

emerged since 1977: Gabcíkovo-Nagymaros Project, judgment of 25 September 1997, ICJ General List

No. 92, para 112.

170. The underlying motive was the concern that the Biodiversity Convention might be used to

upset the delicate balance achieved by the customary law of the sea regarding marine resources: Chandler, 4 Colo. JIEL & P (1993), 151–3.

171. Sands, op. cit., 449–452.

172. Birnie & Boyle, op. cit., 487–9.

173. Ibid., 516–538; Sands, op. cit., 422.

174. Birnie & Boyle, op. cit., 538.

175. Second Assessment, Report of the Intergovernmental Panel on Climate Change of December

1995, summarised in UN Climate Change Bulletin, Issue 10, 2nd quarter 1996.

176. Boyle, in Churchill & Freestone, op. cit., 7ff. & 13; for the view that State duties towards prevention of climate change, acid rain and depletion of the ozone layer are erga omnes and jus cogens:

Hohmann, op. cit., 214–16.

177. Birnie & Boyle, op. cit., 390–l.

178. Ibid., 399; Sands, op. cit., 249;

179. Art. 2.

180. Arts. 3 & 4.

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181. Art. 5.

182. Art. 8(b).

183. Sands, op. cit., 248–255.

184. Birnie & Boyle, op. cit., 402.

185. Art. 2 (1)

186. Art. 2 (1), (2).

187. Birnie & Boyle, op. cit., 405.

188. Preamble.

189. Art. 1 (2).

190. Preamble.

191. Preamble.

192. Art. 5; Sands, op. cit., 268–9.

193. Art. 4; Birnie & Boyle, op. cit., 408–9.

194. Birnie & Boyle, 409–10.

195. Source: Ozone Secretariat at UNEP.

196. Source: UNFCCC Secretariat.

197. Art. 2.

198. Arts. 4, 12.

199. Sands, op. cit., 276–8; Malanczuk, op. cit., 248.

200. Art. 4(2).

201. Press Release UNFCCC Secretariat, 16 March 1998.

202. Sands, 4 EJIL(1993), 380; Birnie & Boyle, op. cit., 93, chapters 11 & 12.

203. On these issues, see Birnie & Boyle, op. cit., chapters 8, 9, 10; Sands, op. cit., chapters 11, 12, 13.

204. E.g., UNGA Res. 1803 (XVII) on Permanent Sovereignty over Natural Resources, 14 December 1962, 17 UN GAOR (Supp. No. 17), 15, para 1; see Sohn, 14 Harv. ILJ (1973). 485–7; Kiss &

Shelton, op. cit., 129; In the 1985 Case Concerning East Timor, the ICJ acknowledged the erga omnes

character of the right to self-determination: ICJ Rep. (1995), 102. para 29.

205. Sohn, 14 Harv. ILJ (1973), 485–93; O’Connell, M., 35 GYIL (1992), 305; Birnie & Boyle, op.

cit., 90–l; Sands, op. cit. 191.

206. 2 RIAA, 829, 839.

207. Kiss & Shelton, op. cit., 120–l.

208. Shearer, in Grunawalt et al., op. cit., 549.

209. 3 RIAA, 1965.

210. Merits, ICJ Rep. (1949), 22.

211. 24 ILR, 129 para 13; The tribunal clarified that pollution of waters, changed chemical composition, a change in water temperature, or inability to make restitution of waters resulting from the use

by one State of international waters within its borders could violate the rights of the affected State:

ibid., 123–4, para 6.

212. Discussed in ILC, 47th session, Geneva, 2 May-21 July 1995, Survey of Liability Regimes Relevant to the Topic of International Liability for Injurious Consequences arising out of acts not prohibited by

International Law [hereinafter 1995 ILC Survey], UN Doc. A/CN.4/471 of 23 June 1995, paras 181–2;

Sands, op. cit, 360–61; Handl, & 2 EPIL (1981), 126.

213. 1995 ILC Survey, para 184.

214. Ibid., para 192.

215. E.g., 1979 LRATP Convention, preamble; 1982 UNCLOS, Art. 194 (2); 1992 Biodiversity

Convention, Art. 3; 1992 Framework Convention on Climate Change, preamble.

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International Environmental Law and Naval War
216. E.g., UN Charter of Economic Rights and Duties of States, 12 December 1974, UNGA Res.

3281; 1982 World Charter for Nature; Rio Declaration, Principle 2, see further infra, 1.2.3. C.

217. O’Connell, M., 35 GYIL (1992), 303–9; Sohn, 14 Harv. ILJ (1973), 485–93; Palmer, G., 86

AJIL (1992), 267–8; Kiss & Shelton, op. cit., 106–7, 129ff.; Sands, op. cit., 191–4; Charney, in Francioni

& Scovazzi, op. cit., 162–3; see too the assessment made by the ILC of Principle 21 in its work on International Liability, ILC Report (1994), UN Doc. A/49/10, 389–90.

218. Written Statements by U.S., WHO Request (June 1994), 15–6; UNGA Request (June 1995),

38–9; UK (June 1995), 69, para. 3.109; France (June 1995), 39, para. 26.

219. Written Statements by Nauru (I), WHO Request (September 1994), 44; by Solomon Islands,

WHO Request (June 1994), 83, paras 4.17–.19; Solomon Islands (June 1995), 64–5, paras 4.83–.87; Solomon Islands, UNGA Request (June 1995), 84–6, paras 4.17–.19; Egypt, UNGA Request (June 1995),

17, (September 1995), 30, 32, paras 70, 75; Oral Statements (WHO and UNGA requests), Solomon Islands (Mr. Sands), CR 95/32, 72, para 21; Iran, CR 95/26, 42–3, para 64.

220. ICJ Rep. (1996), 241–2, para 29.

221. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s

judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v. France) [hereinafter Request for an Examination of the Situation], Order, 22 September 1995, ICJ Rep. (1995), 306, para 64.

222. ICJ, Gabcíkovo-Nagymaros Project, judgment of 25 September 1997, General List No. 92, para

53.

223. Birnie & Boyle, op. cit., 89, 91, 100.

224. Sands, op. cit., 194–197.

225. While Birnie & Boyle argued in 1992 that the duty of harm prevention was “beyond serious

argument” (op. cit., 89), O’Connell, M., wrote in the same year that this was an emerging principle: 35

GYIL (1992), 293, 303.

226. Plant, Environmental Protection, 19.

227. Birnie & Boyle, op. cit., 102–9.

228. Sands, op. cit., 197–8.

229. Kiss & Shelton. op. cit., 131–41.

230. Sands, op. cit., 198.

231. Birnie & Boyle, op. cit., 102–3, 234–242; Arts. 12–19 of the 1997 International Watercourse

Convention; see too Hungarian submissions, Gabcíkovo-Nagymaros Project case, HM, 203–4, paras 6.

70–.71, 211–13, paras 7.06–.16, 223–27, paras 7.57–.65.

232. Birnie & Boyle, op. cit., 102–109; Harlow & McGregor, in Grunawalt et al., op. cit., 317; Smith,

op. cit., 80–82; For the view that the procedural principles of co-operation inherent in Principle 21 are

jus cogens: Hohmann, op. cit., 255.

233. ICJ Rep. (1995), 290–1, paras 5–8.

234. Ibid., 304–6, paras 56–66.

235. Ibid., 344.

236. Ibid., 410, para 87.

237. Oral Pleadings (Prof. McCaffery), CR 97/9, 38–9.

238. Written Pleadings, HC-M, 195, para 4.24; Oral Pleadings (Reply, Mr. Sands) CR 97/12, 68–9.

239. Judgment, para 140; see too Sep. Op.Weeramantry who argues that this wording implies that

an EIA must be conducted.

240. The theme of (sustainable) development or “environment and development” permeates the

entire Rio Declaration, for it is mentioned in many of its Principles.

241. Sands, op. cit., 50; Sands, 4 EJIL (1993), 382.

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242. Biodiversity Convention, Art. 3; Forest Principles, 2 (a).

243. Preamble and Principles 8 & 11: Sohn, 14 Harv. ILJ (1973), 464–66, 469; Kiss & Shelton, op.

cit., 48; Sands, 4 EJIL (1993), 382.

244. Established by UNGA Res. 38/161 of 19 December 1983 with a mandate to critically examine

environment and development issues and to formulate realistic proposals for their solution; The

WCED report was submitted to the UNGA in 1987 (UN Doc. A/42/427) through the Governing Council of UNEP, and published later under the title Our Common Future (1987).

245. Our Common Future, Chapter 2, 43; On the origin of this notion see Birnie & Boyle, op. cit., 4;

Sands, op. cit., 199; Hohmann, op. cit., 20.

246. Written Pleadings, HC-M, 196–7, para 4.25; HR, 21, para 1.39; 24–5, paras 1.45–.48.

247. Written Pleadings SC-M, 257–65, paras 9.53–.66.

248. Oral Pleadings (Prof. McCaffrey) CR 97/9, 29.

249. Judgment, para 140; see too Sep. Op. Weeramantry who argues at length that the concept of

sustainable development has normative value and forms part of modern international law.

250. Principle 3.

251. Principle 10.

252. Principle 15.

253. Principle 16.

254. Principle 7.

255. For a background and critical discussion of all these principles see Agora: “What Obligation

Does Our Generation Owe to the Next—An Approach to Global Environmental Responsibility,” 84

AJIL (1990), 190–212 with contributions by D’Amato, 190–98; Brown Weiss, 198–207, Gündling,

207–212; see also Freestone, in Churchill & Freestone, op. cit., 21–39; Rehbinder in Kiss &

Burhenne-Guilmin, op. cit., 93–111; Smets, 97 RGDIP (1993), 339–363; Bodansky, in 85 ASIL Proceedings (1991), 413–417; Boyle, in Francioni & Scovazzi, op. cit., 368–70, 474ff.; Hohmann, op. cit.,

192ff.; Birnie & Boyle, op. cit., 95–98, 109–111 & 211–212; Sands, op. cit., 208–216.

256. Cameron & Abouchar, in Freestone & Hey, The Precautionary Principle and International Law

(1996), 30ff.

257. Freestone & Hey, ibid., 14; Tinker, ibid., 53–71.

258. Birnie & Boyle, op. cit., 97; Cameron & Abouchar, op. cit., 30.

259. Kiss, in Freestone & Hey, op. cit., 27; Birnie & Boyle, op. cit., 95–6; Sands, op. cit., 212.

260. Freestone & Hey, op. cit., 13; Birnie & Boyle, op. cit., 95–6.

261. Birnie & Boyle, Ibid., 97–8.

262. ICJ Rep. (1995), 290, 298–9, paras 5, 34, 35.

263. Weeramantry, ibid., 342; Palmer, ibid., 412, para 91.

264. Written Pleadings HM, 200–3, paras 6.63–.69; ICJ judgment, 25 September 1997, General

List No. 92, para 97.

265. Oral Pleadings (Reply, Mr. Sands) CR 97/12,78–9.

266. Written Pleadings SC-M, 271–77, paras 9.80–.94; Oral Pleadings (Prof. McCaffery) CR 97/9,

34–7.

267. At para 112.

268. At para. 54.

269. Sands, op. cit., 184.

270. UN Doc. E/CN.17/1997/8, 10 February 1997, Commission on Sustainable Development, 5th

Sess., 7-25 April 1997.

271. Supra, 1.1.2.

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272. There are of course other indicators, such as voluntary compliance, national implementation,

and dispute settlement.

273. This rule forms the cornerstone of the ILC’s work on State Responsibility: Draft Articles on

State Responsibility, General Principles, Art. 1, adopted in 1973 at its 25th session, Yearbook ILC,

(1979), vol. II, pt. 2, Report on 31st session, 91.

274. PCIJ (1928), Ser. A., No. 17, p. 29; see also SS Wimbledon Case, PCIJ (1923), Ser. A, No. 1, p. 3.

275. Most international environmental agreements are said to deal either with unusual or unimportant problems or issues for which a technological solution is at hand: McManus, in 87 ASIL

Proceedings (1993), 388.

276. O’Connell, M., 3 Ind. J Global Legal Stud. (1995), 54.

277. Gabcíkovo-Nagymaros Project case, ICJ Judgment of 25 September 1997, ICJ General List No.

92, para 47, citing earlier case law; see too Rainbow Warrior Arbitration (1990), 82 ILR, 499 at 550–1,

para 75.

278. Conforti, in Francioni & Scovazzi, op. cit., 179–80; Spinedi, ibid., 77ff.

279. But this situation is not unique to IEL: Boisson de Chazournes, 99 RGDIP (1995), 41ff.

280. Palmer. J., op. cit., 28–30; Sands, op. cit., pp. 642–4.

281. Gehring & Jachtenfuchs, 4 EJIL (1993), 97–101; See infra, 4.2.1., 4.2.2.

282. Source: Council of Europe.

283. Art. II.

284. Gehring & Jachtenfuchs, 4 EJIL (1993), 102–3.

285. See infra, 4.2.2.

286. Rosas, in Bring & Mahmoudi, Current International Law Issues: Nordic Perspectives (1994),

161–82.

287. See infra, 4.2.1.

288. Rosas, ibid., 165; Birnie & Boyle, op. cit., 192–3.

289. Leigh, 14 AYIL (1992), 135; Sands, 30 Harv. ILJ (1989), 404ff.; Boisson de Chazournes, 99

RGDIP (1995), 46–47, 50–51.

290. Principle 13 of the 1992 Rio Declaration expresses clear frustration at the lack of progress in

this area since UNCHE; see too Art. 14 (2) of the 1992 Convention on Biological Diversity which calls

for further studies on the issues of liability and redress: Chandler, 4 Colo. JIEL & P (1993), 160.

291. As to the validity of this distinction see: Leigh, 14 AYIL (1992), 140, fn. 69; O’Connell, M., 35

GYIL (1992), 308–9; Boyle, 30 ICLQ (1990), 1; Akehurst 16 NYIL (1985), p. 3; Combacau & Alland,

16 NYIL (1985), 81.

292. Sands, op. cit., 637.

293. Pisillo-Mazzeschi, op. cit., 35; Tomuschat, op. cit., 48–49; Boyle, 60 BYIL (1990), 257ff.

294. UNEP/Env. Law/3/Inf. 1, 15 October 1996, 5–6, para 21.

295. Green Paper on Remedying Environmental Damage(Com (93) 47 Final), 14 May 1993; Sands, op. cit., 635.

296. See the standards mentioned supra, 1.2.1.

297. See the test of “more than merely nominal harm or damage” suggested by Australia in the Nuclear

Tests case, ICJ Rep. (1974), 525–6; discussed by Sands, op. cit., 245–6; the same test reappeared in State

submissions regarding the Legality of Nuclear Weapons:, Written Statements by Solomon Islands,

WHO Request (June 1994), 80–2, paras 4.12.15; UNGA Request (June 1995), 82–3, paras 4.12–15; and

in the Gabcíkovo-Nagymaros Project case: Written Pleadings for Hungary, HR, 26, paras 1.52–.54; oral

Pleadings for Slovakia (Prof. Crawford), CR 97/9, 30–l.

298. Birnie & Boyle, op. cit., 98; Sands, op. cit., 635–6; According to the 1994 ILC Report on international watercourses (ILC Report (1994), UN Doc. A/49/10, 211–12), “significant” means that it can

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be established by objective evidence, that it must not be trivial, but does not mean that it rises to the

level “substantial”; this interpretation has been noted by the UNGA 6th Committee: UN Doc.

A/51/869, 11 April 1997.

299. Sands, op. cit., 636.

300. Schermers, in Delissen & Tanja, Humanitarian Law of Armed Conflict-Challenges Ahead (1991),

584.

301. Hohmann, op. cit., 239–46.

302. Cassese, International Law in a Divided World (1986), 9–32.

303. For a concurring view in relation to the marine environment: Smith. op. cit., 67–8.

304. Supra, 1.2.1. B, D & E.

305. Our Common Future (1987), Chapter 10, 261; Birnie & Boyle, op. cit., 154; Leigh, 14 AYIL

(1992), 135; Johnson, in Bourdeau et al., op. cit., 174.

306. Slinn, in Churchill & Freestone, op. cit., 83.

307. Charney, in Francioni & Scovazzi, op. cit., 161.

308. Caldwell, op. cit., 257ff.

309. Hannikainen, Peremptory Norms (Jus Cogens) in International Law (1988), 521–2; Lefeber, 21

NYIL (1990), 89.

310. Dupuy, Droit International Public (1993), 511.

311. Brownlie, Principles, 15l, 178, 265, 252.

312. Ibid., 178.

313. Note that several States lay claim on this region, but that these were “frozen” by the

1959 Antarctic Treaty; Lefeber, 21 NYIL (1990), 88ff.; Joyner, in Freestone & Mangone, op.

cit., 309.

314. Sohn, 14 Harv. ILJ (1973), 493; ILC Report (1982), UN Doc. A/37/10, 180.

315. See infra, this subheading, on the issue of protection of the environment “as such.”

316. Tomuschat, op. cit., 40, 44ff.; Smith, op. cit., 80.

317. Hohmann, op. cit., 88; Birnie & Boyle, op. cit., 91–92; Charney, in Francioni & Scovazzi op. cit., 149.

318. Charney, ibid., 155; Smith, op. cit., 7–8; Higgins, Problems and Process (1994), 163.

319. Handl, 69 AJIL (1975), 58ff.; Sands, op. cit., 150.

320. Nuclear Tests Case (Australia v. France), Interim Protection, Order of 22 June 1973, ICJ Rep.

(1973), 103, paras 22 & 27.

321. Nuclear Tests Case (New Zealand v. France), Interim Protection, Order of 22 June 1973, ICJ

Rep. (1973), 139; For a discussion of the differences between the New Zealand and the Australian applications, see Request for an Examination of the Situation, Order of 22 September 1995, ICJ Rep. (1995),

Diss. Op. Palmer, 384–5, para 10.

322. Handl, 69 AJIL (1975), 50–76; Birnie & Boyle, op. cit., 100.

323. But see the Pacific Fur Seal Arbitration award of 1893 (UK v. U.S.) and the Patmos case, discussed by Sands, op. cit., 415–9, 663–4.

324. Settlement of Japanese Claims for Personal and Property Damages Resulting from Nuclear

Tests in the Marshall Islands in 1954, done January 4, 1955; Whiteman, 4 Digest of International Law,

565–7, 569–57 1; Leigh, 14 AYIL (1992), 136; Van Dyke, 24 ODIL (1993), 413; du Pontavice, in

OECD, Legal Aspects of Transfrontier Pollution (1977), 430.

325. ILC, Survey of State Practice relevant to international liability for injurious consequences arising out

of acts not prohibited by international law, prepared by the Secretariat, A/CN.4/384, Documents of the 37th

session, Yearbook ILC (1985), vol. II, pt. 2, 108, paras 522–24; Szulc, The Bombs of Palomares (1967),

117ff., 165, 197; du Pontavice, op. cit., 435; Rousseau, 74 RGDIP (1970), 1062.

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326. States are absolutely liable for damage caused by their space objects on the surface of the earth or

to aircraft in flight (Art. II), whereas for damage caused “elsewhere than on the surface of the earth” to a

space object or to persons or property on board, liability is fault-based (III).

327. See definition of damage in Art. I (a).

328. The total cost of the operation to Canada was approximately $14 million: Van Dyke, 24 ODIL

(1993), 414.

329. Canada, Claim against the USSR for Damage Caused by Soviet Cosmos 954, 23 January

1979, 18 ILM (1979), 899–908; Protocol between the Government of Canada and the Government of the

Union of the Soviet Republics, done 2 April 1981, 20 ILM (1981), 689; Sands, op. cit., 647–8; Leigh, 14

AYIL (1992), 136.

330. Yearbook ILC (1991), vol. II. part 2, 108 at 117–18; ILC Report (1994), UN Doc. A/49/10, 391,

398–9.

331. E.g., 1968 African Convention on the Conservation of Nature and Natural Resources, Art.

2; 1982 World Charter for Nature, first principle; 1982 UNCLOS, Art. 192; 1985 Vienna Convention for the Protection of the Ozone Layer, Art. 2( 1); 1992 Convention on Biological Diversity,

Art. 6 (a); 1997 Convention on the Law of Non-Navigational Uses of International Watercourses,

Arts. 20, 23.

332. Almond, in Cooper & Palmer, op. cit., 3; Stone, 45 SCLR (1972), 499–500 and 59 SCLR (1985),

l–154.

333. Handl, 69 AJIL (1975), 53.

334. Second Phase, ICJ Rep. (1966), 47.

335. Second Application, ICJ Rep. (1970), 32.

336. Interim Protection (Australia v. France), ICJ Rep. (1973), p. 99 at para 22; (New Zealand v.

France), ibid., p. 135 at para 23.

337. (Australia v. France) ibid., p. 99 at para 22; (New Zealand v. France) ibid., p. 135 at para 23.

338. The Court found that France unilaterally undertook to stop the tests and that Applicants had

therefore reached their objective: (Australia v. France), Jurisdiction, ICJ Rep. (1974), p. 253 at para 52.

339. (Australia v. France), Jurisdiction, Joint Diss. Op. Onyeama, Dillard, Jiménez de Aréchaga &

Waldock, ICJ. Rep. (1974), p. 312 at para 117; identical Joint Diss. Op. (New Zealand v. France), ibid.,

p. 457 at para 52.

340. ICJ Rep. (1995), 291, para 6.

341. Diss. Op. Weeramantry, Koroma & Palmer: ibid., 317ff., 363ff., 381 ff.

342. Ibid., 306, para 63.

343. Smith, op. cit., 97–99.

344. Even Australia acknowledged the erga omnes character of the right of self-determination: Rejoinder, para 78, cited in Diss. Op.Weeramantry, ICJ Rep. (1995), 172.

345. ICJ Rep. (1995), 102, para 28.

346. Ibid., para 29.

347. Ibid., para 28.

348. Ibid., 101, para 26.

349. Ibid., 102 para 29; Burchill, 2 Journal of Armed Conflict Law (1997), l–22.

350. Diss. Op. Weeramantry, ICJ Rep. (1995), p. 139 at 172.

351. Sep. Op. Ranjeva, Ibid., 131–132.

352. Sep. Op., ICJ Judgment of 25 September 1997, ICJ General List No. 92.

353. ILC Report (1976), UN Doc. A/31/10, 266; Draft Articles on State Responsibility so far

adopted by the International Law Commission, Art. 19. 1 (d), Yearbook ILC (1980), vol. II, pt. 1, 30. In

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1998 the Commission decided to put draft Article 19 “to one side” and to study the matter of the criminal liability of States further: ILC Report (1998) UN Doc. A/53/10, 147 para 331.

354. ILC Report (1994), UN Doc. A/49/10, 330–39 & 358. In 1998 the Commission decided to put

Draft Article 19 “to one side” and to study the matter of the criminal liability of States further: ILC

Report (1998) UN Doc. A/53/10, 147, para. 331.

355. Hannikainen, op. cit., 287–88; Hohmann, op. cit., 152; Birnie & Boyle, op. cit., 209–210; Higgins,

op. cit., 165–8; Malanczuk, op. cit., 60; see too: Institut Discussions on transboundary air pollution:

Henkin, 60 Ann. IDI (1984), T. I., 236ff., 237 & 246 and of Lachs, Rudolf, Seidl-Hohenveldem, 62 Ann.

IDI (1986), T. I., 270ff., 273, 281 & 288; ILC Report (1994), UN Doc., A/49/10, 338.

356. Art. 26, Draft Code on Crimes against the Peace and Security of Mankind, Yearbook ILC,

(1991), vol. II, pt. 2, 97; see too Art. 22 (d), ibid.

357. Following a report by a special working group, it was finally decided to retain only the proposal to include wilful and severe damage to the environment in the list of war crimes: see Art. 20 (g),

Final Draft of the Code Report of the ILC on its 48th session (1996), vol. II, pt. 2, chapter II, A (Introduction), paragraphs 41 to 44; B (Articles with commentary), paragraph 15.

358. In the Gabcíkovo-Nagymaros Project case, see supra, 1.2.1. C.

359. This provision prohibits Parties from concluding inter se agreements derogating from “the basic principles” of the convention; Hannikainen, op. cit., 524.

360. Hohmann, op. cit., 214–16, 255.

361. ILC Report (1976), UN Doc. A/31/10, 260–1, 287; Hannikainen, op. cit., 288–9, 693.

362. But see Hannikainen, op. cit., 248–265.

363. Birnie & Boyle, op. cit., 122; but see Kiss & Shelton, op. cit., 144ff.

364. ILC Report (1982), UN Doc. A/37/10, 186; see too ILC Report (1994), UN Doc. A/49/10, 391,

388–9.

365. But see Sands, op. cit., 194.

366. Smith, op. cit., 103.

367. IUCN Draft Covenant on Environment and Development of March 1995 (on file with author), Article 11 (1) (a).

368. Sohn, 14 Harv. ILJ (1973), 423, 429, 434, 436, 439, 451–2 & 455.

369. Handl, 69 AJIL (1975), 54, fn. 28; Smith, op. cit., 101; Caldwell, op. cit., 65; Kiss & Shelton, op.

cit., 21–23, 25–27, 29; Hohmann, op. cit., 61, 253–4; Birnie & Boyle, op. cit., 191–93; Ksentini, Special

Rapporteur to ECOSOC on Human Rights and the Environment, Final Report, 46th session, E/CN.4/Sub.

2/1994/9, para. 31, pp. l0–11, (6 July 1994); Gormley, Human Rights and Environment (1976), 1.

370. Kiss, 2 Revue Universelle des Droits de L ’Homme (1990), 446; Desgagné, 89 AJIL (1995),

263–294; Sands, op. cit., 220–230; Hohmann, op. cit., 61, 142; Sands, op. cit., 50.

371. E.g., The 1981 African Charter on Human Rights and People’s Rights, of June 27, 1981,

OAU Doc. CAB/LEG/67/3/Rev. 5 (1981), 28 ILM(1982), 58, Art. 24; San Salvador Additional Protocol of November 14, 1988 to the American Convention on Human Rights, 28 ILM (1989), 156; Art.

11.

372. Kiss & Shelton, op. cit., 22–23; Sands, op. cit., 224; Ksentini, Final Report, op. cit., 59–60, para

240, Annex III on “Developments in National Legislation and Practices,” 81–90, and on municipal

case law, 92–93.

373. Written Statements by Costa Rica, WHO Request (July 1994), 7–9; (I) Nauru, WHO Request

(September 1994), 48–51; Malaysia, WHO Request (September 1994), 10–11; Samoa, WHO Request

(September 1994), 3; Solomon Islands, WHO Request (June 1994), 86–7, para 4.24; by Solomon Islands UNGA Request (June 1995), 91–2, paras 4.32–.35.

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374. ICJ Rep. (1996), 241–2, para 29; see too Gabcíkovo-Nagymaros Project, judgment of 25 September 1997, ICJ General List No. 92, para 112.

375. Desgagné, 89 AJIL (1995), 293–4.

376. Shearer, in Grunawalt et al., op. cit., 549; The terms added by this author are “or in international areas.”

Chapter II

l. Best, in Delissen & Tanja, op. cit., 6 and in Westing, Cultural Norms, 18–29.

2. On the origin of these terms see Kolb, ICRC Review (1997), No. 320, 553–562.

3. Oppenheim, International Law. A Treatise. vol. II. Disputes, War and Neutrality (1952), 217–18;

Brownlie, International Law and the Use of Force by States (1963), 406–7.

4. Kalshoven, 9 NYIL (1978), 130; see too Bothe et al., New Rules for Victims of Armed Conflicts

(1982), 346.

5. Lumsden, in War and Environment (1981), 38–57 (1981); Westing, ibid., 58–73 and in Environmental Hazards of War (1990), l–10.

6. Keegan, A History of Warfare (1993), 6–9, 106–l15, 265–266; Best, in Westing, Cultural Norms,

24–5; McCoubrey, in Pilot Study on Defence Environmental Expectations (1995), 236–7; Momtaz, 37

AFDI (1991), 204, 206; Witteler, Die Regelungen der Neuen Verträge des humanitären Völkerrechts und des

Rechts de Rüstungsbegrenzungmit direkem Umweltbezug, (1993), 49–54.

7. Best, in Westing, Cultural Norms, 18; Roberts, in Grunawalt et al., op. cit., 225; Spieker, op. cit.,

189–199; Witteler, op. cit., 151–156.

8. Plant, Environmental Protection, 17; Roberts, in Grunawalt et al., op. cit., 225.

9. Sandoz, ICRC Review (1997), No. 316, 6–8; Bugnion, ICRC Review (1995), No. 305, 217–8.

10. See State submissions in relation to the Advisory Opinion on Nuclear Weapons (UNGA Request): USSR, Written Statement, 18; U.S., Written Statement, 21; UK, Written Statement, 21; and

see Opinion, ICJ Rep. (1996), 266, para 105 2 D; Cassese, International Law, 265.

11. Menon, 30 RDMDG (1991), 253–301; Best, War and Law Since 1945 (1994), 204.

12. Meyrowitz, 13 AFDI (1967), 189–190; Witteler, op. cit., 62–72; Robinson, in War and Environment, 79ff.; Moore, in Falk, The Viemam War and International Law (1976), vol. IV, 181ff.

13. Witteler, op. cit., 61–82; Westing, in War and Environment, 66–68.

14. McCoubrey, in Pilot Study, 236.

15. Infra, 2.2.4.

16. Westing, in War and Environment, 66–8 and in Falk, The Vietnam War, 284–6; Falk, ibid.,

286–303; Blix, in War and Environment, 123–33; SIPRI, Ecological Consequences of the Second Indochina

War (1976), 55–56, references fn. 4; Spieker, op. cit., 276–84; Witteler, op. cit., 72–78.

17. Infra, 3.3.1.

18. The Convention has four attached protocols on specific weapons and methods of warfare; The

first three protocols were agreed together with the main Convention: Protocol (I) on Non-detectable

Fragments; Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps, and other

Devices; Protocol (III) on Prohibitions or Restrictions on the Use of Incendiary Weapons; the fourth

one, Protocol (IV), on Blinding Laser Weapons was agreed on 13 October 1995 at the first Review Conference of the 1980 Convention; see Doswald-Beck, ICRC Review (1996), No. 312, 272–299.

19. Art. II (2) defines toxic chemicals as “Any chemical which through its chemical action on life

processes can cause death, temporary incapacitation or permanent harm to humans or animals,” David, Principes de Droit Des Conflits Armés (1994), 285ff.; Krutzch & Trapp, A Commentary on the Chemical Weapons Convention (1994), 543ff.; McCoubrey, in Fox & Meyer, Effecting Compliance (1993), 127.

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20. Russo, in Dekker & Post, The Gulf War of 1980–1988 (1988), 187–193; Wallach, 41 ICLQ

(1992), 287–310.

21. Roberts, in Grunawaltet al., op. cit., 225; Interestingly, some of these oil installations belonged

to a subsidiary of a U.S. company: Hyde, International Law (1947), 957.

22. Hinsley, British Intelligence in the Second World War(1994), chapter 36 on the Allied oil offensive.

23. Kalshoven, in Dekker & Post, op. cit., 106–7; Momtaz, 37 AFDI (1991), 216; Sandoz et al.,

Commentary on the Additional Protocols (1987), 668–9.

24. Infra, 3.1.1.

25. Walker, in Grunawalt et al., op. cit., 185.

26. Infra, 3.1.2.

27. Bothe et al., Protection of the Environment in Times of Armed Conflict, SJ/110/85 (on file with author) [hereinafter EC Experts Report]; Infra, 3.1.2.

28. According to the Kuwait Oil Co., out of a total of 914 operational wells in Kuwait, 798

well-heads had been detonated by the Iraqi forces, of which 603 were on fire, 45 were gushing oil but

not on fire, and a further 150 were damaged; The capping took 8 months: UNCC, Well Blowout Control

Claim (1996), 36 ILM (1997), 1289 at paras 36–7.

29. Estimates of the size of the spill vary between 30 to 16 million barrels, i.e., between 30 to 40

times larger than the heavily publicised 1989 Exxon Valdez oil spill in Alaska; Price & Robinson, The

1991 Gulf War: Coastal and Marine Environmental Consequences, 27 Marine Pollution Bulletin (special issue), (1993), viii; Gerges, ibid., 308; Tawfiq & Olsen, ibid., 335; Literathy, ibid., 356; Walker, op. cit.,

186; IMO, Final Report of the Persian Gulf Oil Pollution Disaster Fund, (1993), [hereinafter IMO

Report], 1.

30. Roberts, in Grunawalt et al., 248; Walker, ibid., 186; Arkin et al., On Impact (1991), 62–66;

Feliciano, 14 Houston JIL (1992), 487.

31. See January and February 1991 issues of XIV Oil Spill Intelligence Report [hereinafter OSIR];

Price & Robinson, op. cit.; UNEP Governing Council, 17th session, Nairobi, l0–21 May 1992,

UNEP/GC. 17/ Inf.9, 2 February 1993, item 7 on the UN Interagency Plan of Action adopted in March

1991 in Geneva and UNEP’s findings in regard to the causes of pollution.

32. Iran, Iraq, Afghanistan, Pakistan, Turkey, Bulgaria, Romania, and the northern shores of the

Black sea; Arkin et al., op. cit., 67–70; Feliciano, 14 Houston JIL (1992), 493–4.

33. McCoubrey, in Pilot Study, 238; Momtaz, 37 AFDI (1991), 211; Walker, op. cit., 187; Low &

Hodgkinson, 35 VJIL (1995), 408–12.

34. Note though that in the 1996 Well Blowout Control Claim before the UNCC, Iraq denied (in vain) responsibility for the oil-well fires: 36 ILM( 1997), 1289 at paras 42–45; infra,

2.4.2.C.

35. Plant, 7 IJECL (1992), 217–231; Zedalis, 24 VJTL (1991), 711–55 and 23 RBDI (1992),

323–49; Arkin et al., op. cit., 139–142; Roberts, in Grunawalt et al., op. cit., 261–2; McCoubrey, in Pilot

Study, 238; Schmitt, 36 RDMDG (1997), 15–6; Lijnzaad & Tanja, 40 NILR (1993), 196.

36. UNEP Governing Council, 17th session, op. cit., 6; U.S. (Secretary of the Army), Report on

Iraqi War Crimes (Desert Shield/Desert Storm), 8 January 1992, circulated as UN Doc. S/25441, 19

March 1993, 13, 15–18, 46; Feliciano, 14 Houston JIL (1992), 485, 490; Arkin, in Grunawalt et al.,

op. cit., 116–121; see too UNCC, Well Blowout Control Claim (1996), 36 ILM (1997), 1289 at para

85.

37. Szasz, in 85 ASIL Proceedings (1991), 219; Momtaz, 37 AFDI (1991), 204–5; Roberts, in

Grunawalt, op. cit., 249; Heintschel v. Heinegg & Donner, 37 GYIL (1994), 291–2; For a thorough review of positions by States and international organisations, see Spieker, op. cit., 424–59.

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International Environmental Law and Naval War
38. Plant, Environmental Protection, 37; Witteler, op. cit., 480–501; Simonds, 29 SJIL (1992),

10–215; Lavieille, 4 Revue Juridique de l’Environnement (1992), 434–37.

39. Bouvier, ICRC Review (1992), No. 285, 554–56; Tarasofsky, 24 NYIL (1993), 18, fn. 1; Gasser,

89 AJLL (1995), 637–641; Schmitt, 36 RDMDG (1997), 16–18; see too the summary of official views in

Plant, Environmental Protection, 13–37.

40. Infra, 3.3.1.

41. GA Res. 47/37 (Nov. 25, 1992), adopted without a vote; Lijnzaad & Tanja, 40NILR (1993), 190–2.

42. UN Docs. A/47/328, 31 July 1992 and A/48/269, 29 July 1993, entitled Protection of the Environment in Times of Armed Conflict, which includes a set of basic rules for the military; see too ICRC

statement at UNGA, 19th Special Session, 23–27 June 1997, “Five Years after Rio,” (on file with

author).

43. For a historical overview see: Greenwood, in Fleck, The Handbook of Humanitarian Law in

Armed Conflicts (1995), 12–23; For treaty texts see, inter alia, Schindler & Toman, The Laws of Armed

Conflict (1988); Roberts & Guelff, Documents on the Laws of War (1982); On the definition of International Humanitarian Law, including the traditional but now outdated distinction between Hague and

Geneva Law: Greenwood, in Fleck, op. cit., 9–10; McCoubrey, in Meyer, Armed Conflict and the New

Law: Aspects of the I977 Geneva Protocols and the 1981 Weapons Convention (1989), 45–6; Doswald-Beck,

ICRC Review (1997), No. 317, 35ff.; On the distinction between (International) humanitarian law and human rights law see Partsch, 4 EPIL (1982), 216–7; Hannikainen et al., Implementing Humanitarian Law

Applicable in Armed Conflicts (1992), 1–3; Hampson, in Meyer, op. cit., 55–80 and 1 Int.L. & Armed Conflict Comm., Pt. 1 (1994), 32ff.; Müllerson, 2 JACL (1997), 109 at 113–125.

44. Hannikainen, op. cit., 291; David, Principes, 86 92; Levrat, in Kalshoven & Sandoz, Implementation of International Humanitarian Law (1989), 266; Condorelli & Boisson de Chazournes, in

Swinarski, Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of

Jean Pictet (1984), 17–20; Kwakwa, The International Law of Armed Conflict (1992), 150.

45. ICJ Rep. (1996), 257–8, paras 79, 82 & 83.

46. Ibid., para 79 in fine.

47. McCoubrey, 2 Int.L. & Armed Conflict Comm., Pt. 1, (1995), 23; Greenwood, in Fleck, op. cit.,

11.

48. Van Hegelsom, in Heintschel v. Heinegg, Methods and Means of Combat in Naval Warfare

(1992), 5–6.

49. Oxford, 9 August 1913, 26 Ann. IDI (l913), 641–672; Verri, in Ronzitti, The Law of Naval Warfare (1988), 329–41.

50. San Remo Manual on International Law Applicable to Armed Conflicts at Sea, published in book

form (1995); Doswald-Beck, ICRC Review (1995), No. 309, 583–594.

51. Most recently in Additional Protocol I, Art. 35 (1).

52. Falk, in Plant, Environmental Protection, 84–5.

53. For naval warfare see: San Remo Manual, 15–16, Part III, Section I, Basic Rules and Section

II, Precautions in Attack; Heintschel v. Heinegg, in Fleck, op. cit., 418; Shearer, in Grunawaltet al., op.

cit., 547–8.

54. The ICJ considered the principle of distinction and of unnecessary suffering as cardinal principles of IHL, and in subsidiary order, the principle that States do not have unlimited freedom of

choice of means in the weapons they use; the Court also cited the Martens Clause and the principle of

neutrality: ICJ Rep. (1996), 256–61, paras 77–89.

55. Guideline II (4); see too Gasser, 89 AJIL (1995), 637–8.

56. Falk, in Plant, Environmental Protection, 16.

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57. Zemmali, La Protection de l’Environnement en Période de Conflit Armé dans les Normes

Humanitaires et L’Action du CICR, (undated paper by ICRC legal officer, on file with author), 5–8.

58. Declaration (f) in relation to Art. 52, made upon signature, 12 December 1977, 1125 UNTS

432–433; Bothe, 34 GYIL (1991), 55, fn. 4; Schindler & Toman, op. cit., 717; Statement (j) in relation to

Art. 52, made upon ratification, Letter of 28 January 1998 sent to Swiss Government; Source: ICRC.

59. Declaration of 27 February 1986, upon ratification; Source: ICRC; Schindler & Toman, op. cit., 713.

60. Declaration (6) of 26 June 1987 upon ratification; Source: ICRC; Schindler & Toman, op. cit., 714.

61. Declaration (4) of 8 February 1988 upon ratification; Source: ICRC.

62. Bothe et al., New Rules, 308.

63. Arkin et al., op. cit., 122, citing NWP 9, Supplement 8.2–8.3.

64. Gardam, 87 AJIL (1993), 394–403.

65. Bothe, 34 GYIL (1991), 55–6; Abijola, in Al-Nauimi & Meese, op. cit., 87–8.

66. Authors cited by Plant, Environmental Protection, 17.

67. Schmitt, 36 RDMDG (1997), 25–6.

68. E.g., Lieber Code, Art. 16; Hague Regulations, Art. 23 (g); The Nuremberg Charter, Art. 6 (b);

For the grave breach provisions of the Geneva Conventions see immediately below.

69. Low & Hodgkinson, 35 VJIL (1995), 437–441; Lijnzaad & Tanja, 40 NILR (1993), 176.

70. Art. 50 of the GC I, Art. 51 of GC II and Art. 147 of GC IV.

71. Infra, 2.2.6.

72. Hannikainen, op. cit., 713.

73. Low & Hodgkinson, 35 VJIL (1995), 437–441.

74. E.g., Ottawa Conference, conclusion 5; Heintschel v. Heinegg & Donner, 37 GYIL (1994), 292.

75. GA Res. 47/73 (November 25, 1992), Preamble.

76. Guidelines III (8) and (9).

77. ICJ Rep. (1996), 242, para 32.

78. Art. 20 (g), Final Draft of the Code, ILC Report (1996), UN Doc. A/51/10, vol. II, pt. 2, chapter

II, A (Introduction), paragraphs 41 to 44; B (Articles with commentary), para 15.

79. Infra, 2.2.5.B, 2.2.6.

80. See World War I State practice discussed by Zedalis, 24 VJTL (1991), 735–37.

81. The Trial of German Major War Criminals, Nuremberg Military Tribunal (1950), Part 22, 517;

Roberts in Grunawalt et al., op. cit., 236.

82. 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law

No. 18 795 (1950), 2; Zedalis, 24 VJTL (1991), 736; Roberts, in Grunawalt et al., op. cit., 236–7;

Feliciano, 14 Houston JIL (1992), 514–6.

83. 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law

No. 18 795 (1950), 1295–97: Zedalis, 24 VJTL (1991), 736; Roberts, in Grunawaltet al., op. cit., 236–7.

84. Best, War and Law, 328–30.

85. DeSaussure, 37 Air Force LR (1994), 41 at 64–5 on the attacks on the “Baby milk factory” and

the Amariya complex.

86. Roberts, in Grunawalt et al., op. cit., 228.

87. Roberts, ibid., 237–241.

88. 1949 GC (I), Art. 63; 1949 GC (II), Art. 62; 1949 GC (III), Art. 142; 1949 GC (IV), Art. 158;

1977 APl, Art. l(2), 1977 AP2, preamble; 1980 Inhumane Weapons Convention, preamble;

Pustogarov, ICRC Review (1996), No. 312, 300–314; Tycehurst, ICRC Review, (1997), No. 317, 125ff.

89. Sandoz et al., op. cit., 38–9; San Remo Manual, General Provision 2, Commentary, 74.

90. Doswald-Beck, ICRC Review (1997), No. 317, 35ff.; Tycehurst, ibid., 125ff.

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International Environmental Law and Naval War
91. Written Statement, UNGA Request (June 1995), 11–14.

92. Written Statement, WHO Request (September 1994), 84.

93. Written Statements by Solomon Islands, WHO Request (June 1995), 61–2, 4.77–.80; Nauru,

WHO Request (June 1995), first part, 6–7, second part, 32–34.

94. ICJ Rep. (1996), 259–60, paras 84, 87; In their dissenting opinions, Judges Shahabuddeen

(ibid., 405–l1) and Koroma (ibid., 564ff.) argued extensively that the Martens Clause has separate normative status leading to a ban on the use of Nuclear Weapons.

95. Ottawa Conference of Experts, cited by Lijnzaad & Tanja, 40 NILR (1993), 184; Plant, Environmental Protection, 17.

96. Lijnzaad & Tanja, 40 NILR (1993), 184–5.

97. See too, ICJ Rep. (1996), 241–2, paras 28, 30; Kritsiotis, 1 JACL (1996), 111

98. Following Roberts, in Grunawalt et al., op. cit., 229.

99. Recognised by the International Military Tribunal at Nüremberg, judgement 30 September–l

October 1946, Off. Doc., vol. 1, 267; Schindler, in Ronzitti, op. cit., 215, 211; confirmed by the ICJ, Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, ICJ Rep, (1996), 258, para 81.

100. Status as of 22 January 1998: Number of Parties to the 1949 GCs: 188; Number UN Members:

185. (Source: ICRC); Opinion is divided on their customary law status: see e.g., David, Principes, 176;

Meron, 81 AJIL (1987), 348–370; Pellet, 96 RGDIP (1992), 34–5; Doswald-Beck, ICRC Review (1997),

No. 317, 35–6; see too ICJ, Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, ICJ Rep

(1996), 258, para 81, in which the Court cites an opinion according to which the GCs reflect customary

law.

101. Supra, 1.2.1.C.

102. Greenspan, The Modem Law of Land Warfare (1958), 288.

103. United Nations War Crimes Commission decision discussed by Plant, Environmental Protection, 21; Roberts, in Grunawalt et al., op. cit. 236.

104. Zedalis, 24 VJTL (1991), 718–23.

105. Zedalis, ibid., 724–33.

106. Low & Hodgkinson, 35 VJIL (1995), 437–441.

107. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1993), UNESCO, CLT-93/WS/12; Clément, in Al-Nauimi & Meese, op. cit., 143.

108. Sandoz et al., op. cit., 647.

109. Witteler, op. cit., 321–322.

110. Art. 48 ter, CDDH/III/GT/35, p. 5.

111. On more recent proposals to create demilitarised nature reserves: David, Principes, 257.

112. Schwarzkopf, It Doesn’t Take A Hero (1993), 529.

113. Schneider-Jacoby, in Proceedings of “Effects of War on the Environment,” 43 Kemija u Industriji

(1994), 151–59.

114. For examples of coastal, marine and estuarine protected areas, see Boelaert-Suominen &

Cullinan, op. cit., 93–96.

115. San Remo Manual, Rule 11.

116. Ibid., 82–3.

117. Plant, in Fox & Meyer, Effecting Compliance (1993), 161.

118. This treaty provides for a partial demilitarisation of the seabed, limited to weapons of

mass destruction: Ronzitti, op. cit., 595, and Commentary by Migliorino, who writes that the

treaty applies in peace and in war, ibid, 620–l; confirmed by Heintschel v. Heinegg, in Fleck, op.

cit., 445.

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The Newport Papers
119. Art. 1 of which refers, inter alia, to “mines laid to interdict beaches”; But this Convention applies only to land warfare: Heintschel v. Heinegg, ibid., 445–6.

120. Levie in Ronzitti, op. cit, 140.

121. Levie, ibid., 140.

122. Ibid., 140; Heintschel v. Heinegg, in Fleck, op. cit., 444.

123. Heintschel v. Heinegg, in Fleck, op. cit., 444; San Remo Manual, 169.

124. San Remo Manual, Rules 80–92, Commentary, 169–76.

125. Rule 81, Commentary, 171.

126. Rule 84, Commentary, 172.

127. Rule 90, Commentary, 174.

128. Supra, 2.1.

129. Schmitt, 36 RDMDG (1997), 36.

130. Witteler, op. cit., 194–199; Lijnzaad & Tanja, 40 NILR (1993), 186.

131. UN Doc. A/3l/39, 10 December 1976; Witteler, op. cit., 199–203.

132. UN Doc. CCD/520, 3 September 1976, Annex A.

133. Tarasofsky, 24 NYIL (1993), 46; Witteler, op. cit., 230–4; but see Roberts, in Grunawalt et al.,

op. cit., 232.

134. Sandoz et al., op. cit, 4 15.

135. McCoubrey, in Pilot Study, 241; Witteler, op. cit., 80–81.

136. Verwey, in Grunawalt et al., op. cit., 565; Heintschel v. Heinegg & Donner, 37 GYIL (1994),

283; Witteler: op. cit., 94–127, 148–9.

137. Especially weather manipulation: Witteler, op. cit., 112–4; Abijola, op. cit., 81; see too “The

Rainmaker,” broadcast 5th March 1998 by BBC Horizon.

138. Art. III.

139. Goldblat, 22 Bulletin of Peace Proposals (1991), 401–2; Szasz, in 85 ASIL Proceedings (1991),

216; Witteler, op. cit., 239.

140. If the opening of valves and the setting alight of oil wells is too low-tech, use of herbicides

should be too: Tarasofsky, 24 NYIL (1993), 45, fn 130; Low & Hodgkinson, 35 VJIL (1995), 432–3.

141. Third para of Article II, Final Declaration, Second Review Conference of the ENMOD

Parties, 17 Disarmament Yearbook 1992, 242ff.

142. During the ENMOD Ratification Hearings before the U.S. Senate Committee on Foreign Relations: Goldblat, 13 Bulletin of Peace Proposals (1982), 129.

143. 17 Disarmament Yearbook 1992, 223ff.

144. See literature cited by Heintschel v. Heinegg & Donner, 37 GYIL (1994), 283.

145. Witteler, op. cit., 287; Schmitt, 36 RDMDG (1997), 36; Verwey, in Grunawalt et al., op. cit.,

564; Heintschel v. Heinegg & Donner, 37 GYIL (1994), 285.

146. UN Doc. CCD/530, 3 September 1976, Annex A.

147. E.g., Nauru 20 km2

, Bermuda 53 km2, San Marino 62 km2, Maldives 298 km2.

148. Witteler, op. cit., 254–5.

149. Goldblat, 22 Bulletin of Peace Proposals (1991), 401–2; Plant, in Fox & Meyer, op. cit., 168;

Lijnzaad & Tanja, 40 NILR (1993), 195–6; Low & Hodgkinson, 35 VJlL (1995), 434.

150. Although Iraq was a signatory; Roberts, in Grunawalt et al., op. cit., 240–241.

151. Feliciano, 14 Houston JIL (1992), 501; Lijnzaad & Tanja regard it as a typical superpower disarmament treaty which does not bind developing countries: 40 NILR (1993), 189.

152. Verwey, in Grunawalt et al., op. cit., 564.

153. Heintschel v. Heinegg & Donner, 27 GYIL (1994), 294–5.

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International Environmental Law and Naval War
154. An action must be brought by the complaining State (Art. V(3)); the Convention’s Consultative Committee of Experts (Art. V(2), and Annex) is considered powerless; Art. V leaves enforcement

to the Security Council, which is partly composed of non-parties; Simonds, 29 SJIL (1992), 187;

Sanchez Rodriguez, in Ronzitti, op. cit., 666–68.

155. Infra, 2.2.5. B.

156. Source: ICRC.

157. Matheson, 2 Am. U.J. Intl L & Policy (1987), 419–431; Sofaer, ibid., 462–471; Roberts, in

Grunawalt et al., op. cit., 237–239.

158. E.g., Plant, Environmental Protection; Spieker, op. cit.; Witteler, op. cit.

159. Heintschel v. Heinegg & Dormer, 37 GYIL (1994), 284–5.

160. Supra, 1.3.3.

161. In addition, Art. 54 as a whole broke new ground in 1977; Sandoz et al., op. cit., 652.

162. Supra, 2.1.

163. Art. 56 (4).

164. Roberts, in Grunawalt et al., op. cit., 235; Greenwood in Delissen & Tanja, op. cit., 102–3, 105,

108 & 110, and in Rowe, op. cit., 63–88; see too extensive reservation made by the UK upon ratification: Letter of 28 January 1998 sent to Swiss Government; Source: ICRC.

165. Final treaty text, adopted on 21 May 1997 by the GA; UN Doc. A/51/869, 11 April 1997, Report of the 6th Committee.

166. UN Doc. A/51/869, 11 April 1997, Agenda item 144.

167. These were made mainly by East-European States: Witteler, op. cit., 306–8.

168. Herczegh in Swinarski, op. cit., 726–727; Sandoz et al, op. cit., 412.

169. Bothe et al., New Rules, 345.

170. For a discussion see: Witteler, op. cit., 304–27; Herczegh, in Swinarski, op. cit., 725ff.; Kiss,

ibid., 181ff.

171. The 1974–77 GDC took, undoubtedly, inspiration from the ENMOD formula: Herczegh, in

Swinarski et al., op. cit., 730.

172. Sandoz et al., op. cit., 662.

173. Proposal for Art. 49 bis (l), 19 March 1974, CDDH/III/60, discussed by Witteler, op. cit., 313,

315.

174. David, Principes, 254.

175. Feliciano, 14 Houston JIL (1992), 508; Kiss in Swinarski et al., op. cit., 186 & 190; Witteler, op.

cit., 372, 437.

176. Heintschel v. Heinegg, 37 GYIL (1994), 284–5; Herczegh, in Swinarski et al., op. cit., 729;

Kritsiotis, 1 JACL (l996), 110; Lavieille, 4 Revue Juridique de l’Environnement (1992), 424; Lijnzaad &

Tanja, 40 NILR (1993), 180–181; Sandoz et al., op. cit., 663; Simonds, 29 SJIL (1992), 172; Tarasofsky,

24 NYIL (1993), 50.

177. In Heintschel v. Heinegg, The Military Objective and the Principle of Distinction in the Law of Naval Warfare (1991), 99.

178. In Heintschel v. Heinegg, Methods and Means of Combat in Naval Warfare (1992), 115–116.

179. Witteler, op. cit., 336–7, 345.

180. Infra, 2.4.

181. Supra, 1.2.2, 1.3.

182. For an exhaustive comparison of the thresholds of ENMOD and APl, see Witteler, op. cit.,

250–264, 376–407.

183. Ibid., 394–5.

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184. Sandoz et al., 663–4.

185. Bothe et al., New Rules, 22; see too Tarasofsky, 24 NYIL, 5l–2; Lijnzaad & Tanja, 40 NILR

(1993), 180; Lavieille, 4 Revue Juridique de l’Environnement (1992), 423.

186. DOD, Report to Congress on the Conduct of the Persian Gulf War — Appendix on the Role of the

Law of War, 31 ILM (1992), 626–7 (reversing a position taken earlier in the interim report, July 1991,

12–6); see too Department of the Navy, Commander’s Handbook on the Law of Naval Operations (NWP

l–14 M), para 8.1.3 (1996), cited in the introduction and further below in this subheading; Heintschel

v. Heinegg & Donner, 37 GYIL (1994), 290, fn. 30.

187. See infra for Declaration made upon signing the 1980 UN Weapons Convention on 10 April

1980; Heintschel v. Heinegg & Donner, 37 GYIL (1994), 290, fn. 30.

188. See in extenso: Spieker, op. cit., 462pp; Oeter, in Fleck, op. cit., 118; Greenwood, in Rowe, The

Gulf War 1990–91 in International and English Law (1993), 86–87; Roberts, ibid., 126; contra: Daems &

Paye, in Entre les Lignes (1991), 129; David, 20 RBDI (1987), 165–169; David, Principes, 358; Harlow &

McGregor, in Grunawalt et. al., op. cit., 318.

189. ICJ Rep. (1996), 242, para 31.

190. Bothe, 34 GYIL (1994), 56; Doswald-Beck, ICRC Review (1997), No. 316, 35ff.

191. Lijnzaad & Tanja, 40 NILR (1993), 180–l82.

192. Infra, 3.3.3.

193. Supra, 1.3.2.

194. As recognised by the UNEP Working Group on Environmental Damage, UNEP/Env.

Law/3/Inf. 1, 15 October 1996, 8, paras 32–3; see further infra, 3.3.3.

195. Heintschel v. Heinegg & Donner, 37 GYIL (1994), 285.

196. Bothe, 34 GYIL (1991), 58.

197. Heintschel v. Heinegg & Donner, 37 GYIL (1994), 288–9.

198. Rule 44, Commentary, 119–120.

199. NWP l–14M, para 8.1.3 on Environmental Considerations.

200. Upon signing the convention on 10 April 1980; Source: ICRC and Multilateral Treaties deposited with the Secretary-General. 1992.

201. Green, The Contemporary Law of Armed Conflict (1993), 49–50.

202. McCoubrey, 1 JACL (1996), 125; Meron, 89 AJIL (1995), 562.

203. Meron, ibid., 569; Hampson, in Rowe, op. cit., 242–3.

204. GC I, Art. 49; GC II, Art. 50, GC III, Art. 129, GC IV, Art. 146.

205. E.g., HR Arts. 3 & 4.

206. Kalshoven, 40 ICLQ (1991), 827; Greenwood, in Grunawalt et al., op. cit., 399.

207. Greenwood, ibid., 401.

208. Greenwood, ibid., 400–3; Kalshoven, 40 ICLQ (1991), 837–8.

209. 30 ILR, 116.

210. Kalshoven, 40 ICLQ (1991), 836–7; Greenwood, in Grunawalt et al., op. cit., 403; David,

Principes, 525–8.

211. Hampson, in Rowe, op. cit., 242–3.

212. Art. 11 (4) and Art. 85.

213. Arts. 86–7.

214. Hampson, in Rowe, op. cit., 246.

215. Art. 90 (2) (c) (I); Hampson, in Rowe, op. cit., 243–4, 256; and in Fox & Meyer, op. cit.,

74–81.

216. Meron, 89 AJIL (1995), 570, 571–70, fn. 93.

287

International Environmental Law and Naval War
217. Decision in Prosecutor v. Dusko Tadic, 2 October 1995, ICTY No. IT-94-I-AR72, 35 ILM

(1996) 32, at paras 71, 80; Müllerson, 2 JACL (1997), 109–133.

218. GC (I), Art. 50; GC (II), Art. 52; GC (IV), Art. 147.

219. Green, in Grunawalt et al., op. cit., 428; but see McCoubrey, 1 JACL (1996), 131.

220. The matter was raised during the GDC, but a proposal to this effect was not retained;

CDDH/III/GT/35, p. 5, proposed Art. 48 bis; Lijnzaad & Tanja, 40NILR(1993), 181; Witteler, op. cit., 315, 318.

221. Szasz, in Grunawalt et al., op. cit., 283; Bothe, 34 GYIL (1991), 58; Simonds, 29 SJIL (1992), 200–201.

222. Art. 20 (g), Final Draft of the Code, ILC Report (1996), UN Doc. A/51/10, vol. II, pt. 2, chapter

II, A (Introduction), paragraphs 41 to 44; B (Articles with commentary), paragraph 15.

223. Which include the phrase “which may be expected.”

224. Allain & Jones, 8 EJIL (1997), 100–l17.

225. Lijnzaad & Tanja, 40 NILR (1993), 176; Verwey, in Grunawalt et al., op. cit., 566.

226. Roberts, ibid., 237, 242; McCoubrey, in Pilot Study, 243.

227. Bothe, 34 GYIL (1991), 58.

228. Lehnes, op. cit., 32pp. (on file with author).

229. Momtaz, 37 AFDI (1991), 209–l 1; Feliciano, 14 Houston JIL (1992), 505; Lijnzaad & Tanja,

40 NILR (1993), 195; David, Principes, 256; Low & Hodgkinson, 35 VJIL (1995), 430, fn. 176.

230. See, for example, ICRC Guidelines, mentioned supra, 1.2; 1994 San Remo Manual, paras 11,

13 (c), 34 and 44; German Manual on Humanitarian Law in Armed Conflicts, August 1992, paras 401,

403, 479, 1020; U.S. Navy, NWP l–14M, para 8.1.3; Schmitt, 36 RDMDG (1997), 19ff.

231. Kelsen cited by Rumpf, 27 GYIL, (1984) 441.

232. Arts. 53 (1) and 107 of the Charter regarding the former enemy States (now all UN members),

are generally regarded as “extinguished”: Greenspan, op. cit., 28; The legality of use of armed force in

other cases than those mentioned in the text, such as humanitarian intervention, rescue of nationals

abroad, and anticipatory self-defence, remains controversial: Brownlie, in Cassese, The Current Legal

Regulation of the Use of Force(1986), 497ff.; Hannikainen, op. cit., 335–40; Gardam, 87 AJIL (1993), 391,

fn. 2; Greenwood, 9 Rev. Int. Stud. (1983), 222.

233. The ILC has linked the prohibition of aggressive war with jus cogens on three occasions, in

its work on the law of treaties and on State Responsibility: Hannikainen, op. cit., 163, 185, 188–9,

284–7.

234. ICJ Rep. (1986), 100, 190; Czaplinski, 38 ICLQ (1989), 162; Birnie & Boyle, op. cit., 129.

235. ICJ Rep. (1970), 32; The observations made earlier by the ICJ in the Barcelona Traction case in

regard to erga omnes obligations are usually regarded as examples of jus cogens.

236. Czaplinski, 38 ICLQ (1989), 156ff.

237. Art. 19, (2) and (3)(a); Yearbook ILC (1979), vol. II, pt 2, 92; ILC Report (1980), UN Doc.

A/35/10, 90–93. But see recent decision to study Draft Article 19 further: ILC Report (1998), UN Doc.

A/53/10, 147, para. 331.

238. Christenson, in Lillich, The United Nations Compensation Commission (1995), 311, 312.

239. Brownlie, System of the Law of Nations: State Responsibility (1983), vol. I, 32–33; Dekker, in

Dekker & Post, op. cit., 252–3; David, ibid., 269–271; de Hoogh, 42 AJPIL (1991), 189ff.; Higgins, op.

cit., 165–168 and literature cited therein; Annacker, 46 AJPIL (1994), 135ff.; Hannikainen, op. cit.,

182; But see recent decision to study Draft Article 19 further: ILC Report (1998), UN Doc. A/53/10,

118–147, paras. 241–331.

240. Hannikainen, op. cit., 326; Dekker, in Dekker & Post, op. cit., 253–261 and in particular,

254–255; Comments by David, ibid., 271; Brownlie, International Law, 150–4, and specifically, 153;

Gilbert, 39 ICLQ, (1990), 363; see too Dupuy, P., Droit International Public (1993), 349.

288

The Newport Papers
241. Art. 16, ILC Report (1996), UN Doc. A/51/10, para 46; see too Arts. 25, 26 and 27 of the Draft

Statute for an International Criminal Court, adopted by the ILC at its 46th session in 1994: Press Release, L/2684 of 25 July 1994.

242. Yearbook ILC (1978), vol. II, pt. 2, 103; Yearbook ILC (1979), vol. II, pt. 2, 93.

243. Quigley, 57 BYIL (1987), 77–131, and specifically 95–104; Lauterpacht, 7 ICLQ (1958), 551;

Brownlie, State Responsibility, vol. I, 191; Graefrath & Oeser, 29 Staat and Recht (1980), 446–8.

244. Art. 3(f) of the 1974 UN GA Definition of Aggression qualifies the situation in which a State

permits another to use its territory to commit an act of aggression against another State as an act of aggression in itself: Quigley, 57 BYIL (1987), 83–86.

245. Brownlie, International Law, 418–9, 324; This type of “political” complicity was referred to by

the ICJ in its Advisory Opinion on Namibia, ICJ Rep. (1971), 5–58, which refers to Art. 25 of the UN

Charter and to “general international law.”

246. Quigley, 57 BYIL (1987), 87–95; Vagts, 91 AJIL (1997), 473.

247. Roberts, in Grunawalt et al. op. cit., 243–4.

248. Graefrath & Mohr, 43 AJPIL (1992), 132.

249. Written Statement, Solomon Islands, WHO Request, (June 1995), 69, para 4.96.

250. ICJ Rep. (1996), 241–242, paras 29–30; Infra, 3.2.

251. Gardam, 87 AJIL (1993), 391–413; Greenwood, 9 Rev. Int. Stud. (1983), 221–5; Kwakwa, op.

cit., l–5.

252. These requirements can be traced back to the Carolineincident, which dealt with a situation of

self-defence, but is now regarded as relevant for all cases of armed force under the Charter, including

actions under Chapter VII and VIII; Brownlie, International Law, 42–43.

253. E.g. views expressed during the preparation of the San Remo Manual, Rules 3–6, Commentary, 75–8.

254. ICJ Rep. (1986), 103, para 194.

255. Doswald-Beck, ICRC Review (1997), No. 316, 35–55; Greenwood, ibid., 65–75.

256. ICJ Rep. (1996), 242, para 30.

257. Note that while State practice shows a tendency to confine naval operations to areas close to

the belligerent coasts, it is difficult to say whether this is dictated by legal conviction or by practical

limitations: Ronzitti, op. cit., 5.

258. The “region of war” is a term of art, introduced by Oppenheim, and refers to “that part of the

surface of the earth in which the belligerents may prepare and execute hostilities against each other”;

“Theatre” or “area” of warfare are concepts used to indicate the sites where warfare actually takes

place: Oppenheim, op. cit., 236–47.

259. Heintschel v. Heinegg, in Fleck, op. cit., 409–415; Oxman, 24 VJIL (1984), 811; San Remo

Manual, Rules 14–37, Commentary, 93–l11.

260. Langdon, in Heintschel v. Heinegg, The Military Objective, 86–88; Gardam, 87 AJIL (1993),

391–413.

261. Greenwood, 9 Rev. Int. Stud. (1983), 223–224.

262. Section II, Rules 3–6, Commentary, 75–78.

263. Supra, 1.2.2.D, in fine.

264. ICJ Rep. (1996), 242, para 30.

265. ILC Report (1994), UN Doc. A/49/10, Chapter V, 381–2, proposed Art. J (exceptions) & p. 386,

draft article 17 (national security and industrial secrets); see generally: Tomuschat, op. cit., 37ff; see

too Szasz, in Grunawalt et al., op. cit., 286. fn. 31.

266. Supra, 1.2.2.D

289

International Environmental Law and Naval War
267. Brownlie, International Law, 147; Greenwood, in Grunawalt et al., op. cit., 403–4.

268. Crook, 87 AJIL (1993), 144, 146.

269. Christenson, in Lillich, op. cit., 312–4.

270. Schachter, 85 AJIL (1991), 452, 456; Bederman, in Lillich, op. cit., 257, 261–4.

271. Eitel, 35 GYIL (1992), 188.

272. Scorched Earth and Polish Forests cases, supra, 2.2.1. & 2.2.3A.

273. In regard to the Advisory Opinion on Nuclear Weapons, Solomon Islands, Oral Submissions

(Mr. Sands), CR 95/32, 71, para 19.

274. Crook, 87 AJlL (1993), 147

275. Plant, 7 IJECL (1992), 221; Low & Hodgkinson, 35 VJIL (1995), 455.

276. UNEP Working Group on Environmental Damage, UNEP/Env.Law/3/Inf. 1, 15 October

1996, 8, para 33.

277. Ibid., 4, para 16; Greenwood, in Grunawalt et al., op. cit., 407.

278. Bishop, International Law (1971), 795.

279. Fox, in Rowe, op. cit., 281–5; Boelaert-Suominen, 50 ZöR (1996), 298–310.

280. Hampson, in Rowe, op. cit., 250–l.

281. Greenwood, in Grunawalt et al., op. cit., 409; Fox, in Rowe, op. cit., 284; Domb, 23 IYHR

(1993), 107; Cottereau, 37 AFDI (1991), 107.

282. David, 20 RBDI (1987), 100; Principes, 71–2.

283. Boelaert-Suominen, 50 ZöR (1996), 225–316.

284. Decision 7, para 6 (a) and 21 (a) of the Governing Council, S/AC.26/1991/7/Rev. 1, 31 ILM

(1992), 1045; see too Decision 9 of the Governing Council, 6 March 1992, S/AC26/1992/9, para 12.

285. 36 ILM (1997), 1289.

286. Ibid., paras 85–6.

287. For a concise historical overview see Bothe, in Fleck, op. cit., 487; but see The Wirpi (1941),

Ann. Dig. (1943–45), 300–302; Cobbett, Leading Cases on International Law with Notes (1924), vol. II,

407–8.

288. Cobbett, op. cit., 11–14, 400–402; McNair & Watts, The Legal Effects of War (1966), 2–6; Greenwood, 36 ICLQ (1987), 284; Post, 25 NYIL (1994), 87–88.

289. For a review of the traditional neutrality law see: Castrén, The Present Law of War and Neutrality (1954), 421–58 on neutrality in general, 458–92 on neutrality in land war, 492–587 on neutrality in

maritime warfare, 587–601 on neutrality in air warfare; Schindler, in Ronzitti, op. cit, 215–22, in

Delissen & Tanja, op. cit., 367–86; Gioia, & Ronzitti, in Dekker & Post, op. cit., 221–242; Bring, in

Bring & Mahmoudi, op. cit., 28–9; Bothe, in Fleck, op. cit., 485–515; Vagts, 91 AJIL (1997), 466–475.

290. Ogley, The Theory and Practice of Neutrality in the Twentieth Century (1970), 147–149 (Switzerland), 156–157 (Sweden).

291. Zeeman, van Panhuys et al., International Law in the Netherlands (1980), vol. III, 352.

292. Bothe, in Fleck, op. cit., 485–7.

293. Second Commission, Third Meeting: Scott, The Proceedings of the Hague Peace Conferences.

The Conference of 1907 (1921), vol. III, 48–49.

294. EC Experts Report, mentioned supra, 2.1, para 4.4.1.

295. Third Commission, Eight Meeting, Annex, in Scott, op. cit., 492.

296. Ibid., 491.

297. Ibid., 492.

298. Greenwood in Fleck, op. cit., 21.

299. 2 RIAA (1949), 1011–1033; 1035–1077.

290

The Newport Papers
300. Whiteman, 11 Digest of International Law, 207.

301. Ibid., 209.

302. Bonjour, La Neutralité Suisse (1979), 128–129, 173; Vagts, 91 AJIL (1997), 468.

303. Vagts, ibid., 468; Whiteman, op. cit., 208;

304. Jaccard 87 Zeitschrift des Bernischen Juristen Vereins (1951), 231–232; Note that some claims

were considered too remote for compensation: EC Experts Report, mentioned supra 2.1, para 4.4.5.

305. Jaccard, 87 Zeitschrift des Bernischen Juristen Vereins (1951), 231 fn. 1; Brickhill, The Dambusters

(1983), 237–8.

306. Guggenheim, Répertoire Suisse de Droit International Public (1975), vol. IV. 2291–2292.

307. Infra, 3.3.3.

308. EC Experts Report, mentioned supra, 2.1, para 6.1.1.

309. Written Submissions by Nauru, WHO Request, pt. 2 (June 1995), 26–27, para 5.6; UNGA Request (September 1995), 16–7, para 3.4; Egypt, UNGA Request (September 1995), 3 l–33.

310. Supra, 2.4.1. B.

311. Infra, 3.1.1.

312. Wright, 47 AJIL (1953), 369.

313. Lauterpacht, 23 BYIL 1946, 39ff.; Castrén, op. cit. 433–5; Comments by Henkin, 19 ODIL

(1988), 309ff. & 321; Green, The Contemporary Law, 321.

314. UN SC Res. 598 (1987); Weller, in Dekker & Post, op. cit., 71–90.

315. UN SC Res. 660 (1990).

316. Greenwood, 36 ICLQ (1987), 284ff.; Post, 25 NYIL (1994), 88–89; Brownlie, International

Law, 384–391.

317. McNair & Watts, op. cit., 5–6; Greenwood, 36 ICLQ (1987), 283ff.; Voelckel, 37 AFDI (1991),

7–24.

318. McNair & Watts, op. cit., 34–54; Greenwood, 36 ICLQ (1987), 294; Hudson, in Rowe, op. cit.,

333–47.

319. Infra, 3.4.2. B.

320. Heintschel v. Heinegg & Donner, 37 GYIL (1994), 296.

321. Greenwood, 36 ICLQ (1987), 297–301; Schindler, in Ronzitti, op. cit., 212; David, Principes,

95; Oeter, Neutralität und Waffenhandel (l992); 256; Bothe, in Fleck, op. cit., 490–491.

322. Greenwood, 36 ICLQ (1987), 297ff.; Chinkin, Third Parties in International Law (1993), 311;

Norton, 17 Harv. ILJ (1976), 309–11; Brownlie, International Law, 401–3.

323. Ronzitti, op. cit., 7–10; Mehr, 20 Ocean Development and International Law, 105, (1989); De

Guttry & Ronzitti, The Iran-Iraq War (1980–1988) and the Law of Naval Warfare (1993); Politakis, 35

GYIL (1992), 466ff. and 25 ODIL (1994), 5ff.

324. Robert, in Entre 1es Lignes (1991), 91–9; Torrelli, 96 RGDIP (1992), 27–28, fn. 54.

325. DOD Interim Report to Congress, Conduct of the Persian Gulf War, July 1991, section 12–7/8,

and DOD Final Report to Congress, Conduct of the Persian Gulf War, April 1992, Appendix on the Role

of the Law of War, 31 ILM (1992) 638–640.

326. For Austria, see: Loibl & Brandstetter, 43 AJPIL (1992), 73–79; Landau, 46 Studia

Diplomatica (1993), 70; Bring, in Bring & Mahmoudi, op. cit., 38; For Switzerland see: Schindler, 44

AJPIL, (1992), 110; Bring, op. cit., 37–8; Thürer, 30 Archiv des Völkerrechts (1992), 63–85.

327. White, 1 Int. L. & Armed Conflict Comm. (1994), Pt. 1, 16.

328. ICJ Rep. (1949), 35.

329. Merits, ICJ Rep. (1986), 121, para 235.

330. San Remo Manual, Section III, Rules 7–8, Commentary, 79–80.

291

International Environmental Law and Naval War
331. Supra, 2.3.3.

332. SC Res. 661 (1990), 2 December 1990;

333. Dupuy, P., 95 RGDIP (1991), 633.

334. Burger, in Grunawalt et al., op. cit., 340–1; Bourloyannis-Vrailas, 44 ICLQ (1995), 586, fn.

132

335. Szasz, ibid., 310.

336. Supra, 2.3.4.

337. Supra, 2.3.5.

338. See reasons given by the Swiss Federal Department of Foreign Affairs for its co-operation

with the UN embargo against Iraq and Kuwait: Torrelli, 96 RGDIP (1992), 25 fn. 50.

339. ICJ Rep. (1996). 260–1, paras 88–90.

Chapter III

1. Amin, 6 Marine Policy (1982), 193–94.

2. Saifi, in Malek, International Mediation and the Gulf War (1991), 38ff.; Gioia, in De Guttry &

Ronzitti, op. cit., 58ff.

3. Gioia, op. cit., 72ff.; Momtaz, ibid., 20ff.; Leckow, 37 ICLQ (1988), 629–44; Bothe, in Dekker &

Post, op. cit., 210, and Comments by Bos, ibid., 218.

4. Nordquist & Wachenfeld, 31 GYIL (1988), 151.

5. 540 (1983); 552 (1984); 582 (1986) and 598 (1987); see Ronzitti, in The Law of Naval Warfare

(1988), 8 and further below in this subheading.

6. Walker, op. cit., 186–7.

7. Supra, 1.2.1. A.

8. Lowe, 10 Marine Policy (1986), 181; Nordquist & Wachenfeld, 31 GYIL (1988), 153–9;

Politakis, 25 ODIL (1994) 34; Leckow, 37 ICLQ (1988), 638; Charney, 35 VJIL (1995), 385; On 6 October 1994, the 1982 Convention and the 1994 Agreement amending Part XI were forwarded to the

U.S. Senate for ratification: Charney, ibid., 380.

9. De Muralt, 32 NILR (1985), 79–81.

10. Art. 298, (1) (b).

11. Oxman, 24 VJIL (1984), 810, 861–3; Schachte, 23 ODIL (1992), 55–69.

12. ILC, 8th session, Yearbook ILC, (1956), vol. II, pt. 2, pp. 253, 256; UN Doc. A/CN.4/SER.A/

1956/Add. l; Baxter, The Law of International Waterways (1964), 204.

13. Oxman, 24 VJIL (1984), 811; Halkiopoulos, in Dupuy & Vignes, op. cit., vol. II, Chapter 24;

Lowe, 12 Marine Policy (1988), 289.

14. Arts. 58 (2), 88, 301.

15. UN Department for Disarmament Affairs, The Naval Arms Race (1986), UN Doc. A/40/535,

47–8, para 188; Rauch, 28 GYIL (1985), 229–67; Tsarev, 12 Marine Policy (1988), 153–59; Vukas, in

Dupuy & Vignes, op. cit., vol. II, Chapter 23, 1235–38; Van Dyke, 15 Marine Policy (1991), 160–1;

Heintschel von Heinegg & Donner, 37 GYIL (1994), 305; Heintschel von Heinegg, in Fleck, op. cit.,

414.

16. Lowe, 10 Marine Policy (1986), 183; Boczek, 20 ODIL (1990), 239–71; Heintschel von

Heinegg, 30 CYIL (1992), 102–5; For official positions see: Menefee, in De Guttry & Ronzitti, op. cit.,

99–132 (U.S.); Lowe, ibid., 241–253 (UK); Venturini, ibid., 523–529 (Security Council).

17. SC Res. 540 (1983), UN Doc. S/Res/540, paras 3 & 5; Res. 552 (1984), UN Doc. S/Res/552, 5th,

6th and 7th preambular paras, and operational paras 2 & 5; see Venturini, in De Guttry & Ronzitti, op.

cit., 524–6; Ronzitti, in The Law of Naval Warfare (1988), 8.

292

The Newport Papers
18. The initial leak was caused by a well blow-out on 4 February 1983; Iraq would soon aggravate

the spill by bombing the Nowruz oil field regularly: VI OSIR, No. 9 (11 March 1983), 1; No. 10 (18

March 1983), 1; No. 11 (25 March 1983), 4–5.

19. VII OSIR, No. 6 (10 February 1984), 1; Estimates of the total amount spilled vary from l/2 to 6

million barrels: Price, in Price & Robinson, op. cit., 18; Literathy, ibid., 356.

20. ROPME was established by Arts. XV ff. of the Kuwait Regional Convention For Co-operation

on the Protection of the Marine Environment From Pollution, done at Kuwait on 24 April 1978, concluded between Bahrain, Iran, Iraq, Kuwait, Oman, Qatar the UAE and Saudi Arabia: Kiss, Selected

Multilateral Treaties in the Field of the Environment (hereinafter UNEP Compendium), vol. I, (1983), 486.

21. Mann-Borgese, in Dupuy, R., The Future of the International Law of the Environment (1985), 106; VI

OSIR, No. 10 (18 March 1983), 1; No. 14 (15 April 1983), 1; No. 16 (29 April 1983), 1; No. 21, 3 June 1983, l.

22. Letter of 5 May 1983 (UN Doc. S/15752), in which Iraq explained firstly, that part of the spill

was due to a collision between a tanker and Nowruz 3 well, in which Iraq had no part and for which

Iran failed to contact ROPME, and secondly, that Iran is to blame for rejecting all Iraqi peace proposals, and that as long as the war lasts, these types of damage are likely to continue to occur.

23. Letter of 23 December 1983, UN Doc. S/16238: De Guttry & Ronzitti, op. cit., 89–90.

24. Para 5 of SC Res. 540 (1983), supra.

25. Bothe et al., Protection of the Environment in Times of Armed Conflict, SJ/110/85 (on file with author) [hereinafter EC Experts Report]; as yet unpublished, but it has passed into the public domain

judging from the frequent references made to it: e.g., David, 20 RBDI (1987), 165; Plant, Environmental Protection, 5, fn. 6; Spieker, op. cit., 415; Gioia, op. cit., 77–78; Heintschel v. Heinegg & Donner, 37

GYIL (1994), 291, fn. 33.

26. EC Experts Report, Conclusions.

27. Ibid., Introduction, in fine.

28. The report simply observes that the Security Council has rarely exercised its powers with respect to breach of the peace: EC Experts Report, para 4.1.

29. The Security Council only took binding measures under Chapter VII in 1987: UN Doc.

S/RES/598 (1987) of 2 July 1987.

30. EC Experts Report, paras 4.4.1., 4.4.2, 4.3, 4.4.5.

31. Supra, 2.4.2.B.

32. Supra, 2.4.2.A.

33. Para 3.

34. Infra, 3.3.3., 3.4.1., 7.4.3.

35. Supra, 1.2.1.A.; Heintschel v. Heinegg & Donner, 37 GYIL (1994), 311; Walker, op. cit., 189.

36. EC Experts Report, paras 1.2 & 5.3.1, conclusion 4; see too Feliciano, 14 Houston JIL (1992),

494–98.

37. In Grunawalt et al., op. cit., 577–8.

38. Supra, 2.2.3.B.

39. Case concerning Oil Platforms, ICJ General List No. 90.

40. Politakis, 25 ODIL (1994), 35–37.

41. Walker, op. cit., 186; Iran has thus far not presented detailed reparations claims to the ICJ:

Preliminary Objection, judgement, 12 December 1996, para 9; It is as yet unclear whether she will introduce claims regarding environmental damage.

42. The United States contends, though, that there was a separate conflict between the United

States and Iran: ICJ General List No. 90, Preliminary Objection, judgement, 12 December 1996, para

18; Counter-Claim Order, 10 March 1998, paras 4, 25.

293

International Environmental Law and Naval War
43. Supra, 2.1.

44. Supra, 2.2.1, 2.2.4., 2.2.5.B.

45. Supra, 2.3.4., 2.3.5, 2.4.2.C.

46. Roberts, in Grunawalt et al., op. cit., 248; Walker, ibid., 186.

47. Roberts, ibid., 254; Tawfiq & Olsen, op. cit., 337 on Saudi Aramco; but see Arkin et al., op. cit.,

70, who criticise the delay in the Saudi response.

48. Gerges, in Price & Robinson, op. cit., 307; Krupp, & Jones, ibid., 315–23; Alam, ibid., 359.

49. Note that most of the international relief effort took place after cessation; Infra, 7.4.2.

50. Tawfiq & Olsen, op. cit., 343; XIV OSIR, No. 6 (7 February 1991), 3.

51. Infra, 7.4.2.

52. IMO Report, mentioned supra, 2.1.

53. Infra, 7.4.2.

54. Solomon Islands, Written Observations WHO Request (June 1994), 82–95; UNGA request

(September 1995), 10–11; Oral Pleadings (Mr. Sands), CR/95, 14 November 1995, 71–3, paras 20–1.

55. See in more detail, infra, 3.4.1, 3.4.3.

56. Infra, 3.2. in fine and 3.4.1.

57. Post, 25 NYIL (1994), 90; Lalive (Arbitrator) in Dalmia Cement Ltd. v. National Bank of Pakistan (1976), 67 ILR, 611 at 62, para 57 citing English law.

58. Post, 25 NYIL (1994), 90.

59. For a UK application see Janson v. Driefontein Consolidated Gold Mines (1902), AC 484.

60. Greenwood, 36 ICLQ (1987), 284–7.

61. Schwarzenberger & Brown, A Manual of International Law (1976), 151–2; McNair & Watts, op.

cit., 2–3; Post, 25 NYIL (1994), 92–93.

62. Post, ibid., 93.

63. Supra, 2.4.2.A.

64. Delbrück, 4 EPIL (1982), 313; McNair & Watts, op. cit., 18–19.

65. Green, 29 CYIL (1991), 226; Shearer, in Grunawalt et. al., op. cit., 550.

66. Corfu Channel Case, ICJ Rep. (1949), 22; Military and Paramilitary Activities in and Against Nicaragua (merits), ICJ Rep. (1986), 112, para 215.

67. See Written Statements by Mexico, WHO Request (June 1994), 9–11; Samoa, WHO Request

(September 1994), 3; Malaysia, WHO Request (September 1994), 10–11; (June 1995), 27–29; India,

WHO Request (June 1995), 12–3; Nauru, (Memorial I), WHO Request (September 1994), 36–45; (part

II), WHO Request, (June 1995), 27–28; Solomon Islands, UNGA Request (June 1995), 77–97, paras

4.1–.4.9; (September 1995), 10, para 3.112; Egypt, UNGA Request (June 1995), 17–8; Egypt, UNGA

Request, (September 1995), 29–31; Nauru, (September 1995), 26–27.

68. Written Statements by U.S., WHO Request (June 1995), 10–14; UNGA Request (June 1995),

34–42.

69. Written Statements by U.S., WHO Request (June 1995), 18–9; UNGA Request (June 1995),

42.

70. Written Statement, UNGA Request (June 1995), 64, para 3.89.

71. ICJ Rep. (1996), 241–2, paras 27–8.

72. Ibid., 242, para 30.

73. Ibid., 243, para 34.

74. Ibid., 240, para 25.

75. Ibid., 241–2, para 29.

76. Ibid., 242, para 30.

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77. Supra, 1.2.2.A, 2.2.1., 2.2.5.B, 2.3.2.

78. Ibid., 242, para 30, in fine.

79. Order of 22 September 1995, ICJ. Rep. (1995), 306, para. 64; Supra, 1.2.2. A.

80. ICJ Rep. (1996), 243, para 32.

81. Supra, 2.3.2.

82. ICJ Rep. (1996), 242, paras 30–31.

83. Doswald-Beck, ICRC Review (1997), No. 316, 35–55.

84. Greenwood, ibid., 35–55; Supra, 221, 225.

85. ILC Report (1976), UN Doc. A/31/10, 266; Draft Articles on State Responsibility so far

adopted by the International Law Commission, Part I, Art. 19. 1 (d), Yearbook ILC (1980), vol. II, 30;

Supra, 1.3.2.

86. The dispositif 2 E, ICJ Rep. (1996), 266, as interpreted by several Judges: Sep. Op.

Fleischhaer, ibid., 308; Diss. Ops., by Shahbuddeen, ibid., 377–8, 426; by Koroma, ibid, 560; by Higgins, ibid., 590, para 29.

87. Diss. Op. Schwebel, ICJ Rep. (1996), 328.

88. Solomon Islands, Written Statement, WHO Request (June 1994), para 4.17; Oral Pleading

(Mr. Sands), CR/95, 14 November 1995, 71–2, para 20.

89. Solomon Islands, Written Statement, WHO Request (June 1994), 83, para 4.17.

90. Ibid., 84–5, para 4.20.

91. Supra, 2.1.

92. Cited by Blix, in War and Environment, 122.

93. Falk, in Plant, Environmental Protection, 86.

94. Sohn, 14 Harv. ILJ (1973), 509.

95. Sohn, ibid., 508–11; Blix, op. cit., 122–23.

96. Supra, 2.1.

97. Paragraph 39.6 of Agenda 21; Sands, 4 EJIL (1993), 384.

98. Supra, 1.1.1; but see ICRC statement at UNGASS, 23–27 June 1997, mentioned supra, 1.2.

99. Supra, 1.2.2.A.

100. Matheson, 91 AJIL (1997), 423.

101. ILC Report (1994), UN Doc. A/49/10, Chapter V, 400.

102. Supra, 1.2.2.A.

103. Shearer, in Grunawalt et al., op. cit., 550.

104. Solomon Islands, Written Statement, WHO Request, (June 1994), 95, para 4.45.

105. EC Experts Report, conclusions 2 & 4; Plant, in Fox & Meyer, op. cit., 164; Tarasofsky, 24

NYIL (1993), 69.

106. Bothe, 34 GYIL (1991), 59; Heintschel v. Heinegg & Donner, 37 GYIL (1994), 297–8.

107. Supra, 2.4.2.A., 2.4.2.B.

108. Supra, 3.2.

109. ICJ Rep. (1996), 261, para 89.

110. Ibid., 263, para 96.

111. Ibid., 262, para 93.

112. UK, Written Statement, WHO Request (September 1994), 92, para 44; UNGA Request (June

1995), 58, para 3.78; Advisory Opinion, ICJ Rep. (1996), 262, para 94.

113. Ibid., 262–3, paras 94, 97.

114. Matheson, 91 AJIL (1997), 427–8.

115. Supra, 2.4.1.C.

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International Environmental Law and Naval War
116. Supra, 1.3.2.

117. Supra, 1.2.1.

118. Note that the Solomon Islands argued that most global and regional environmental treaties

had become part of general (customary) international law: Advisory Opinion on the Legality of Nuclear Weapons, Written Statement, WHO Request (June 1994), para 4.21–4.32, and specifically para

4.22.

119. E.g., State submissions, supra, 3.2.

120. E.g., State submissions, supra, 3.1.5.

121. Heintschel v. Heinegg & Donner, 37 GYIL (1994), 311.

122. Supra, 3.1.1–3.1.4.

123. E.g., ICRC Report UN Doc. A/48/269, para 110 and by countless authors, inter alia, Szasz in

Grunawalt et al., op. cit., 281; Verwey, ibid., 568–9; Meron, ibid., 355–6.

124. Feliciano, 14 Houston JIL (1992), 494–98; Low & Hodgkinson, 35 VJIL (1995), 442–47;

Prescott, 7 EILR (1993), 197–231; Simonds, 29 SJIL (1992), 188–198; Sharp, 137 Mil. LR (1992), summer issue, 22–28.

125. Meron, in Grunawalt et al., op. cit., 355.

126. Written Statements by Solomon Islands, WHO Request (June 1994), 92, para 4.35; UNGA

Request (June 1995), 94, para 4.38; U.S., WHO Request (June 1995), 11; UNGA Request (June 1995),

34; UK, UNGA Request (June 1995), 68, para 3.110.

127. Solomon Islands, Written Statements, WHO Request (June 1994), 93, para 4.37; UNGA Request (20 June 1995), 95, 4.40.

128. Solomon Islands, Written Statements, WHO Request (June 1994), 94–5, paras 4.41–4.44;

UNGA Request (June 1995), 96–7, paras 4.44–.47.

129. Written Statements by U.S., WHO Request (June 1995), 10–14; UNGA Request (June 1995),

34–42; UK, UNGA Request (June 1995), 69–70, para 3.111–.112.

130. ICJ Rep. (1996), para 30.

131. Brownlie, Principles, 616–7; Post, 25 NYIL (1994), 103; Broms, 59 Ann. IDI (1981), T. I., 241;

Verwey in Grunawalt et al., op. cit., 568.

132. 279 U.S. 231; Gamer, in Harvard Research in International Law, Part III, Law of Treaties, Supplement to 29 AJIL, (1935), 1183ff. [hereinafter Harvard Research].

133. Infra, 3.4.2. C & D.

134. McIntyre, Legal Effect of World War II on Treaties of the United States (1958), 37.

135. Ränk, 38 Cornell LQ (1953), 321.

136. Journal Officiel, October 14, 1945.

137. Cited in “La Bretagne” (1986), 82 ILR, 590 at 603–4, para 7.

138. McIntyre, op. cit., 38.

139. Supra, 2.4.2 A.

140. Hudson, in Rowe, op. cit., 333.

141. Industrial Commission of Ohio v. Rotar (1931), Ann. Dig. (1931–32), 437–8; Peters et al. v. McKay

(1951), 18 ILR, l, 474–93; Kunstsammlungen zu Weimar v. Elicofon (1981), 94 ILR, 172–173, 198.

142. Hudson, in Rowe, op. cit., 333, 338.

143. Broms, 59 Ann. IDI (1981), T.I, 231; On the effect of various ways of terminating a state of war

(treaty of peace, armistice, etc.) and their effects on treaties see McNair & Watts, op. cit., 11–15.

144. Van Eysinga, Grotius-Annuaire International (1919–1920), 9.

145. The treaties of Neuilly and Saint-Germain contained similar provisions.

146. This concerned the 1905 Hague Convention on Civil Procedure.

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147. Case law is divided on the exact meaning of this article for the continuation of pre-war treaties

during armed conflict: Ottoman Debt Arbitration (1925), Ann. Dig. (1925–6), 78–9; State Ex. Rel. Miner,

County Attorney v. Reardon et al. (1926), Ann. Dig. (1919–42), 238 at 241–2; Societa Walter Kiada v.

Societa Deutsche Werft (1929), Ann. Dig. (1929–30), 479–30.

148. See 59 Ann. IDI (1981), T. I, 233, fn. 18; McIntyre, op. cit., 322, fn. 4; Masininport v. Scottisch

Mechanical Light Industries Ltd. (1976), 74 ILR, 559, 564.

149. For a comparison between the peace treaties of World War I & II: Fitzmaurice, 73 Hague

Recueil, (1948), vol. II, 259–367.

150. See for example, The 1922 Italian-Czechoslovak Convention for the Legal Protection of the

Subjects of both States, at issue in Koh-I-Noor Tuskarna L. & Hardtmuth National Enterprise v. Fabrique

de Crayons Hardtmuth L & C., S.P.R.L. (1960), 40 ILR, 17ff.

151. McIntyre, op. cit., 320.

152. Ibid., 330.

153. E.g., Art. 12 of the Peace Treaty with Finland: 59 Ann. IDI (1981), T. I., 232–3.

154. Whiteman, 14 Digest of International Law, 491.

155. Broms claims that all pre-war bilateral treaties were revived after World War II: 59, Ann. IDI

(1981), T.I., 1981, 236.

156. Ränk, 38 Cornell LQ (1953), 344; see on the international legal position of Austria: In re Veit

(1946), Ann. Dig. (1946), 330–l.

157. Broms, 59 Ann. IDI (1981), T. I., 210–211 and Verosta, ibid., 255–256.

158. Ränk, 38 Cornell LQ (1953), 344, 349–55; Whiteman, op. cit., 492–95; see infra, 3.4.2. B, municipal case law.

159. See the exchange of letters in Lauterpachtet al., The Kuwait Crisis: Basic Documents (1991), vol.

I, 63–69.

160. SC Res. 687 (1991) established only a cease-fire.

161. 18 ILM (1979), 362, Art. 1(1).

162. 22 ILM (1983), 708, Art. 1(2).

163. 34 ILM (1995), 43.

164. 35 ILM (1996), 89.

165. Ränk, 38 Cornell LQ (1953), 346.

166. Ibid., 347.

167. Ibid., 343–5; Whiteman, op. cit., vol. 14, 508–9.

168. Art. 1.

169. Whiteman, op. cit., vol. 14, 510.

170. Schwelb, 58 AJIL (1964), 645–5.

171. Preamble.

172. Schwelb, 58 AJIL (1964), 666.

173. E.g., Written Statements by Nauru (Memorial I), WHO Request, 37; Solomon Islands, WHO Request (June 1994), 83ff, para 4.13ff.; UNGA Request (June 1995), 82–3, para

4.13ff.

174. Concluded September 10, 1996.

175. Broms 59 Ann. IDI (1981), T. I, 211.

176. 11 RIAA, 181.

177. 67 ILR, 619–620.

178. 67 ILR, 624–625; Schindler, 59 Ann. IDI (1981), T. I, 268–9.

179. Inter alia, in a radio broadcast: 67 ILR, 615–6.

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International Environmental Law and Naval War
180. Contraband lists were issued by both parties (Award, 67 ILR, 615, 616); Both belligerents interfered

seriously with third State rights and applied prize law: Heintschel v. Heinegg, 30 CYIL (1992), 94–96.

181. 67 ILR, 624, para 51.

182. 1969 Vienna Convention, Arts. 63 & 74; see too SA des Ed. Feldman et Autin v. Rigaud (1944)

Ann. Dig. (1944), 275: “of itself, the severance of diplomatic relations is not of such a nature as to imply

the lapse of treaties.”

183. 96 ILR, 303–6.

184. Case Concerning US Diplomatic and Consular Staff in Teheran (merits), ICI Rep. (1980), 28,

paras 45–55, and particularly para 54.

185. Ibid., paras 90–92.

186. Supra, 3.1.3.

187. Case Concerning Oil Platforms, General List No. 90, Preliminary Objection, 12 December

1996, paras 1, 9, 12.

188. Ibid., paras 14, 17, 18.

189. Ibid., para 15.

190. Ibid., paras, 20–21.

191. Ibid., paras 38–51.

192. ICJ Rep. (1984), Jurisdiction and Admissibility, paras 77–83.

193. Merits, ICJ Rep. (1986), 14 at paras 77–83, Dispositif 7, 10, 11.

194. Case Concerning Oil Platforms, General List No. 90, Preliminary Objection, 12 December

1996, para 28; Nicaragua Case (merits), ICJ Rep. (1986), 137, para. 273.

195. Case of SS Wimbledon, Judgment, Merits, 17 August 1923, PCIJ Rep. Series A, No. 1, 15ff.

196. Ibid., 18.

197. Ibid., 21–28.

198. Ibid., 35, para 1.

199. Ibid., 37, para 3.

200. This is open to challenge since the PCIJ dismissed the argument pursuant to which Art. 380 of

the Versailles Treaty could not deprive Germany “of a personal and imprescriptible right, which

forms an essential part of her sovereignty and which she neither could nor intended to renounce by anticipation”: ibid., 25ff.

201. UK, Written Statement, UNGA Request (June 1995), 64, paras 3.96–.98.

202. Supra, 3.2 in fine.

203. See on the work of the Institut, infra, 3.4.2. D.

204. Ränk, 38 Cornell LQ (1953), 342–3.

205. McNair & Watts, op. cit., 37, 43–5.

206. Whiteman, op. cit., vol. 14, 502–4.

207. Techt v. Hughes (20), Ann. Dig. (1910–22), 387 at 388, discussed in Harvard Research, 1183–84.

208. McIntyre, op. cit., chapter V on “economic treaties in force with enemy states at the outbreak

of World War II,” 158–299.

209. Ann. Dig. (1947), 171, 174–176; 14 Whiteman, op. cit., 495–99.

210. 2 K.B. 544, 556; Confirmed by the Court of Appeal; McNair & Watts, op. cit., 35–36, 47.

211. Ibid., 36, fn. 2.

212. Ibid., 48.

213. Hudson, in Rowe, op. cit., 336.

214. Hughes v. Techt; Techt v. Hughes, (1919–20), Ann. Dig. (1910–22), 387 at 388; Loewengard v.

Procureur of the Republic and Bonvier (Sequestrator) (1921), Ann. Dig. (1910–22), 389–10.

298

The Newport Papers
215. Broms, 59 Ann. IDI (1981), T. I, 237, 241.

216. Ibid., 211.

217. Masquelin, Le Droit des Traités dans l’Ordre juridique et dans la Pratique belge (1980), 604–6.

218. International Registration of Trademark (Germany) Case (1959), 28 ILR, 82, 86; Trademark Registration Case (1967), 59 ILR, 489, 490–91; Prescott, 7 EILR (1993), 217–8.

219. Guardianship case (1919), Ann. Dig. (1910–22), 389–10.

220. Societa Fornaci di Stazzano v. Rancillo, (1957), 24 ILR, 890–2; Lanificio Branditex v. Societa

Azais e Vidal (1971), 71 ILR, 595–6.

221. Silverio v. Delli Zotti (1952), 19 ILR, 558–9.

222. Hecht case (1941), Ann. Dig. (1919–42) 242–3; Gehrmann and Maatje van der Have v. Registrar,

(1947). Ann. Dig., (1947), 176–77; In re Holzwarth Gasturbinen AG (1950), 17 ILR, 356–7; Gevato v.

Deutsche Bank (1952), 19 ILR, 1952, 29–31; Nederlands Rijnvaartvereeniging v. Damco Scheepvaart

Maatschappij (1954), 21 ILR 276–7; In re Swane (1958), 26 ILR 557.

223. Fabrique des Crayons Koh-I-Noor, L. & C. Hardtmuth, SARL v. Koh-I-Noor Turkama L. & C.

Hardtmuth, Narodni Podnik (1959), 30 ILR, 33, 45.

224. State Ex. Rel. Miner, County Attorney v. Reardon et al. (1926), Ann. Dig., (1919–42), 238–242;

The Sophie Rickmers (1930), Ann. Dig., (1929–30), 477–8; In re Meyer’s Estate (1951), 18 ILR, 499–06;

Brownell v. City and County of San Francisco (1954), 21 ILR, 432; Argento v. Horn et al. (1955), 24 ILR,

883; Gallina v. Fraser, US States Marshal, (1959–60), 31 ILR, 356ff.; In re Extradition of D’Amico (1959),

28 ILR, 602; but see Karnuth v. US (1928), Ann. Dig. (1927–28), 536–38; and In re Ronkendorf’s Estate

(1958), 26 ILR, 675.

225. Masininport v. Scottisch Mechanical Light Industries Ltd (1976), 74 ILR, 559, 564: Prescott, 7

EILR (1993), 215–19; McNair & Watts, op. cit., 37–40.

226. Lovera v. Rinaldi (1949), 77 Journal de Droit International (1950), 125; apparently reversing its

prior decision in Bussi v. Menetti (1943), Ann. Dig. (1943–45); But Lovera v. Rinaldi is not always followed by other Courts: see e.g., Rosso v. Marro (1945), Ann. Dig. (1943–45), 307–8; Stramazi v.

Dellazoppa (1952), 19 ILR, 556–558; Broms, 59 Ann. IDI (1981), T. I., 238–9; Prescott, 7 EILR (1993),

216–7.

227. The Fjleld, (1950), 17 ILR, 345–9; Japanese Government v. Commercial Casualty Insurance Co

(1951), 18 ILR, 493–9; Atlee and Others v. Laird and Others (1972–3), 94 ILR, 97ff ,121ff.; Harrington and

Others v. Schlesinger and Others (1974–5), 94 ILR, 122ff.; Crockett v. Reagan (1982–3), 87 ILR, 658ff.,

670ff.; Lowry and Others v. Reagan (1987), 87 ILR, 671; but see: End Conscription Campaign and Another

v. Minister of Defense and Another (1988), 87 ILR, 257.

228. Industrial Commission of Ohio v. Rotar (1931), Ann. Dig. (1931–32), 437–8; Mutia v. The King

(1946), Ann. Dig. (1946), 329; Rex v. Bottril, Ex Parte Kuechenmeister (1946), Ann. Dig. (1946), 312–321;

Stinson v. New York Life Assurance Co. (1947) Ann. Dig. (1947), 210–224; Greenville Enterprise Inc. v.

Jennings (1947), Ann. Dig. (1947), 225–227; National Savings and Trust Co. et al. v. Brownell (1955), 22

ILR, 932–5; Ladue & Co, v. Brownell (1955), 22 ILR, 935–9; In re Grotrian, Cox v. Grotrian and Others

(1955), 22 ILR, 940–3.

229. E.g., R. v. Meroni (1973), 91 ILR, 386, 390–1; Rijn-Schelde Verolme NV v. State Secretary of Justice (1976), 74 ILR, 118.

230. Hudson, in Rowe, op. cit., 344–6; McNair & Watts, op. cit., 49.

231. Lalive (Arbitrator), Dalmia Cement Ltd. v. National Bank of Pakistan (1976), 67 ILR, 625.

232. McNair & Watts, op. cit., 51.

233. Langlas et al. v. Iowa Life Insurance Co. (1954), 21 ILR, 416; Thomas v. Metropolitan Life Insurance Co (1957), 26 ILR, 626.

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International Environmental Law and Naval War
234. US v. Ayers (1954), 21 ILR, 423, and cases mentioned in fn., ibid., 430.

235. 17 ILR 354, 355.

236. Jacomet, La Guerre et les Traités (1909); Phillipson, Termination of War and Treaties of Peace

(1916); Hurst, 2 BYIL (1921–1922), 37–47; Tobin, The Termination Of Multipartite Treaties (1933).

237. “Effets de la Guerre sur les Obligations Internationales et les Contrats prives.”

238. 24 Ann. IDI (1910–12), 24, 201–202 and 207–208.

239. Harvard Research, 653ff., and specifically 1183ff.

240. But see the studies done on World War II by Ränk, 38 Cornell LQ (1953), 321–355 and

McIntyre, op. cit. (1958); McNair & Watts, op. cit. (1966).

241. Infra, 3.4.3.

242. See work and reports on this subject by the Institut’s Fifth Commission from 1976 to 1985:

Dijon Session, 59 Ann. IDI (1981), T.I, 201–84, T. II, 175–244; Helsinki Session, 61 Ann. IDI (1985),

T.I., 1–27, 201–84, and T. II, 199–283.

243. Infra, 3.4.2.D.

244. Inapplication of the old Roman adagio “Inter arma silent leges”; Greenwood, 36 ICLQ(1987), 296–7.

245. This was the position adopted by the Institut in 1912.

246. 24 Ann. IDI (1910–12), 201–2, 207, 208.

247. Harvard Research, 1185.

248. Delbrück, 4 EPIL, (1982), 311.

249. Ibid., 311.

250. See observations by Zourek, 59 Ann. IDI (1981), T. I, 213.

251. Judgment, 25 September 1997, ICJ General List No. 92, paras 114, 142.

252. Broms, 59 Ann. IDI (1981), T. I, 228–9; see too Harvard Research, draft Art. 35 (b) and commentary thereto.

253. Delbrück, 4 EPIL (1982), 311–12; Broms, 59 Ann. IDI (1981), T.I, 212; see too Art. 1 of the

Helsinki Resolution, 61 Ann. IDI (1985), T. II, 278.

254. Broms, 59 Ann. IDI (1981), T.I, 241–45; Delbrück, 4 EPIL (1982), 312–13; Verwey, in

Grunawalt et al., op. cit., 569.

255. David, Principes, 90–1.

256. The treaty at issue was a Mandate agreement under the League of Nations: ICJ Rep. (1971),

47.

257. Costa, in Zacklin et al., The Legal Régime of International Rivers and Lakes (1981), 203–45, 407;

Baxter, op. cit., 187–244.

258. Arts. 62 (2) (a) of the 1969 Vienna Convention and Art. 62 (2) of 1986 Vienna Convention on

the Law of Treaties; Art. 11 of the 1978 Vienna Convention on Succession of States in Respect of

Treaties; Hannikainen, op. cit., 350–56.

259. Hurst, 2 BYIL (1921–1922), 40.

260. Harvard Research, draft Art. 35.

261. 1969 Vienna Convention, Arts. 31–32.

262. Greenwood, 36 ICLQ (1987), 296–7; Delbrück, 4 EPIL, (1982), 314.

263. Broms, 59 Ann. IDI (1981), T. I., 205.

264. Briggs, 61 Ann. IDI (1985), T. I., 7–8.

265. Schindler, 59 Ann. IDI (1981), T. I., 282–3; Salmon, 61 Ann. IDI (1985), T. I., 16–7; Schindler,

ibid., 17; Salmon, ibid., T. II., 219–221.

266. Skubizewski, 59 Ann. IDI (1981), T. II, 191; by Lachs, ibid., 184; Bindschedler, ibid., 217;

Dinstein, 61 Ann. IDI, (1985), T. II, 214–5.

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267. 59 Ann. IDI (1981), T. II, 202.

268. 61 Ann. IDI, (1985), T. II, 216.

269. Art. 1 of the resolution adopted at the Helsinki Session, 61 Ann. IDI (1985), T II, 278.

270. Broms, 59 Ann. IDI (1981), T. I, 203–4, 211; 61 Ann. IDI (1985), T. II, 205–8, 211–13.

271. Broms, 59 Ann. IDI (1981), T. I., 213, 217–8, Draft resolution Art. 5, 276.

272. Broms, 59 Ann. IDI (1981), T. II, 231; Marek, 61 Ann. IDI (1985), T. I., 11, para 6.

273. Commission Centrale pour la Navigation du Rhin, Rapport Annuel (1945), 1–11; Rapport

Annuel (1949), 2–3; Rapport Annuel (1950), 2–5; La Commission Européenne du Danube et son Oeuvre de

1856 á 1931 (1931), 36–53; Hobson, The International Institute of Agriculture, (1931); IIA, The Work of the

International Institute of Agriculture during the War (1940–1945) (1945); For accounts of the effect of

armed conflict on, e.g., the Universal Postal Union and ILO, see McIntyre, op. cit., 275–83, 124–134.

274. Remarks by Zourek, 59 Ann. IDI (1981), T.I., 259; revised draft resolution 7 (c), 265; remarks

by Heintschel v. Heinegg, ibid., T. II, 236.

275. ROPME and MEMAC; supra, 3.1.2 and infra, 7.4.3.

276. Supra, 3.4.1.

277. EC Experts Report, para 3.

278. Verwey, in Grunawalt et al., op. cit., 569; see too U.S. government opinion regarding the

PTBT, supra, 3.4.2.A.

279. Infra, Chapter 5.

280. Broms, 59 Ann. IDI (1981), T. I, 217; Briggs, ibid., 279; 61 Ann. IDI (1985), T. I, 8–9 and T. II,

231.

281. Salmon, 61 Ann. IDI (1985), T. I, 15; Tenekides, ibid., 23; discussion, ibid., T .II, 220–21.

282. Supra, 1.3.3.

283. E.g., Written Statement Nauru (Memorial I), WHO Request, 48–50; Malaysia, WHO Request, September 1994, 10–11.

284. Amendment proposed by Salmon, rejected by 27 votes to 9 with 6 abstentions: 61 Ann. IDI

(1985), T. II, 221–223; Professor Salmon was one of the co-authors of the 1985 EC Experts Report

mentioned above (supra, 3.1.2.), and it can be assumed that his proposal to IDI in 1985 was at least inspired by its conclusions.

285. Munch, 59 Ann. IDI (1981), T. II, 187–8; Briggs, 61 Ann. IDI (1985), T.I, 7–8; McDougal, ibid,

T. II, 233.

286. Tunkin, 59 Ann. IDI (1981), T. II, 223.

287. Broms, ibid., T.I, 214; Verosta, ibid., 256; Zourek, ibid., 257.

288. Tunkin, ibid., T. II, 185–7; Seyersted, ibid., 192.

289. Schindler, ibid., T.I, 268–9; Skubizewski, ibid., T. II, 191; Schindler, 61 Ann. IDI (1985), T.I,

17; Briggs, ibid., 8–9.

290. Marek, ibid., 10–11.

291. Supra, 2.3.4., 2.3.5, 2.4.2. C.

292. For possible reasons see: Lauterpacht, 29 BYIL 1952 (1953), 160, fn. 2.

293. Supra, 3.1.1.

294. Supra, 2.3.3.

295. ILC Report (1994), UN Doc. A/49/10, 316, para 3.

296. Solomon Islands, Written Observations, WHO Request (June 1994), para 4.13ff., 91–92; Oral

Pleadings, (Mr. Sands), CR/95, 14 November 1995, 74–5, para 26.

297. Costa, in Zacklin et al., op. cit., 203–45, 407; Baxter, op. cit., 187–244.

298. UNGA, 51st session, Agenda item 144, UN Doc. A/51/869 of 11 April 1997; Supra, 2.2.5.A.

301

International Environmental Law and Naval War
299. Arts. 39–40.

300. Arts. 63, 74 (1), 75, 76.

301. Judgment, 25 September 1997, ICJ General List No. 92, para 46, which includes references to

earlier case law.

302. Ibid., Para 47; See too Rainbow Warrior Arbitration (1990), 82 ILR, 499 at 550–1, para 75.

303. Supra, 3.4.2.D.

304. Art. 71 (2); Note that the 1969 Vienna Convention also regulates the procedure to be followed

should the treaty conflict with a pre-existing norm of jus cogens: Art. 53.

305. Art. 4.

306. Gowlland-Debbas, 43 ICLQ (1994), 55, 87–90.

307. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial

Incident at Lockerbie, Order of 14 April 1992, ICJ Rep. (1992), (Libya v. UK), 3 at para 39; (Libya v. US),

133 at para 42; See too Judgment on Preliminary Objections, 27 February 1998, in which the ICJ decided, inter alia, that the issue of the effects of Security Council Resolutions and the Montreal

Convention was a defence on the merits: General List No. 88, (Libya v. UK), para 50; (Libya v. US),

para 49.

308. Helsinki Resolution, 61 Ann. IDI (1985), T. II, 280, Art. 2.

309. 1969 Vienna Convention on the Law of Treaties, Arts. 54–59.

310. 1969 Vienna convention, Art. 61, which the ICJ regards as customary law:

Gabcíkovo-Nagymaros Project case (merits), judgment of 25 September 1997, ICJ General List No. 92,

para 99.

311. Brownlie, Principles, 616–17.

312. ICJ General List No. 92, paras 102–3.

313. See Bederman, 82 AJIL, (1988), 1ff., and particularly 8, 30ff.; Toth, 19 Juridical Review, (1974),

269ff.; The Harvard Research clearly distinguishes rebus sic stantibus (Art. 28) from the effect of war on

treaties (Art. 35).

314. ILC Report (1996), UN Doc. A/51/10, paras 51–64.

315. ILC Report (1979), UN Doc. A/34/10, 284 and 290–91.

316. 82 ILR 1990, 552–555, paras 77–79.

317. Supra, 3.4.2.D.

318. Supra, 3.2.

319. Supra, 3.4.

320. General Principles of International Law (5), Annex to UN A/48/269, 29 July 1993, supra, 2.1.

321. Supra, 1.2.1.

Chapter IV

1. Rosas, op. cit., 163.

2. On the development of the Hague Rules, generally, see O’Connell, D., The International Law of

the Sea, vol. II, (1984), 782–86.

3. Hudson, in Rowe, op. cit., 336ff.

4. Supra, 3.4.2. B.

5. See regarding the Korean conflict: Langlas et al. v. Iowa Life Insurance Co. (1954), 21 ILR 1954,

416; Thomas v. Metropolitan Life Insurance Co. (1957), 26 ILR 1955–II, 626; regarding the Suez Conflict: Navios Corporation v. The Ulysses II et al. (1958), 26 ILR 1958–II 638; but see diversity of opinion

as to the legal effect of the Japanese Attack on Pearl Harbour: New York Life Insurance Co. v. Bennion

(1946), Ann. Dig. (1946), 224–7; Savage v. Sun Life Assurance Co. of Canada (1944), Ann. Dig. (1943–45),

302

The Newport Papers
283–4; West v. Palmetto State Life Insurance Co. (1943), Ann. Dig. (1943–45), 289–92; Rosenau et al. v.

Idaho Mutual Benefit Association (1944), Ann. Dig. (1943–45), 293–300.

6. Smulders & Piccinati v. Societe Anonyme ‘La Royale Belge’ (1943), Ann. Dig. (1943–45), 303–4;

Cie d’Assur. La Nationale v. Vve Cabanel (1946), Ann. Dig., (1946), 228; Van Hoeve De Feyter v. Fire Insurance Co. of 1859 Ltd. (1947), Ann. Dig. (1947), 169–171; Amstel Insurance Co. Ltd. v. Van Der Wal

(1950), 17 ILR 343–4; Marissal v. Mutuelle Générale Francaise Accidents (1950), 17 ILR, 349–50;

Beccarini v. Societa La Securita (1950), 17 ILR 1950, 352–353.

7. 82 ILR, 107, 109.

8. Steimel, 4 EPIL (1982), 307.

9. Birnie & Boyle, op. cit., 371ff.

10. Gehring & Jachtenfuchs, 4 EJIL (1993), 100–101.

11. Protocol, Art. 2(2) & (4); Convention Art. 1 (f) (iv) to (vi), (g), (h); Press Release IAEA, 12 September 1997, PR 97/21.

12. 1997 Convention Art. V (1).

13. 1997 Protocol, Art. 3(l) & (2).

14. 1997 Protocol, Art. 3 (IB); 1997 Convention Art. II (2); Infra, 6.2.6. A.

15. Vienna Convention Art. IV 3 (a); Paris Convention Art. 9; Annex to the 1997 Supplementary

Convention, Art. 3(5); 1997 Protocol, Art. 6(l).

16. Szasz, 2 JMLC (1971), No. 3, 541–2.

17. Infra, 6.2.6. B.

18. Between 1959 and 1962 the USSR icebreaker Lenin and the U.S. N.S. Savannah were making

their initial voyages; Szasz, 2 JMLC (1971), No. 3, 547.

19. Szasz, ibid., 552–3; Könz, 57 AJIL (1963), 102;

20. Könz, ibid., 102, fn. 14 & 109.

21. Infra, 6.2.6. B.

22. Birnie & Boyle, op. cit., 294–5; Jachtenfuchs & Gehring, 4 EJIL (1993), 97–99.

23. See “pollution damage” as defined in Art. I (6), and complemented by Art. II.

24. IMO Docs LEG./Conf.6/66 and LEG./Conf.6/67, 25 May 1984, not yet in force.

25. Revised text of Art. 1(6) of the CLC, and of Art. 3 of the IOPC Fund Convention.

26. Draft Art. II, Alternative B (2), IMCO Doc LEG/CONF/4 and IMCO Doc LEG/CONF/

4/Corr. 1, September 1969, IMCO, Official Records of the International Legal Conference on Marine Pollution Damage Conference, 1969 (1973), 460 [hereinafter Marine Pollution Damage Conference 1969].

27. Unlike for the proposed exclusion regarding warships: Infra, 6.2.6.C.

28. LEG/CONF/C.2/SR. 18, 25 November 1969, Marine Pollution Damage Conference 1969, 739–742.

29. LEG/Conf.2/C.1/SR.4, 1 December 1971, IMCO, Official Records of the Conference on the Establishment of an International Compensation Fund for Oil Pollution Damage, 1971(1978), 331 [hereinafter

IOPC Conference 1971].

30. LEG/Conf.2/C.l/SR.6, 2 December 1971, IOPC Conference 1971, 349.

31. LEG/CONF.2/3, ibid., draft Art. 4 (2) (a) and footnotes 4 (i) & (ii).

32. Ibid., 49–62; the United States opposed the exoneration whilst Japan, Sweden and Australia

supported the exoneration; Australia later changed its mind and supported the U.S. position: LEG/

Conf.2/C.l/SR.6, 2 December 1971, IOPC Conference 1971, 344.

33. Ibid., 62–63.

34. LEG/Conf.2/C.l/SR.5, 2 December 1971, ibid., 334–5, 334–3; LEG/Conf.2/C.1/SR.6, 2 December 1971, ibid., 343–47.

35. LEG/Conf.2/C.l/SR6, 2 December 1971, ibid., 347.

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International Environmental Law and Naval War
36. Greece’s objections can be found in LEG/CONF.2/3, ibid., 52–3; Japan (ibid., 54), Sweden

(ibid., 57) and the UK (ibid., 61) concurred; the United States advocated the inclusion of damage

caused by natural disasters on the same grounds as for war damage (ibid., 63); for the discussions and final decisions of the Committee of the Whole on the issue of natural disasters see LEG/Conf.2/C.l/SR.6,

of 2 December 1971, IOPC Conference 1971, 347–50.

37. IMO Doc LEG/CONF.3, International Legal Conference on Maritime Carriage of Nuclear Materials,

Brussels, 1971; LEG/CONF.3/3, 15 October 1971; The Final Act was signed on 17 December 1971.

38. IMO Doc LEG/CONF.3/3, 15 October 1971, 3, para 4.

39. LEG/CONF/.3/3, 15 October 1971, Annex II, 2 with extracts from a document prepared for

the IMCO Legal Committee by the Secretariat of the European NEA of the OECD.

40. Arts. l & 2.

41. Art. 3.

42. See reference to the Paris and Vienna Conventions in the preamble and in Art. 1.

43. IMO LEG, 34th session, 1978, LEG XXXIV/3, 7 December 1977, agenda item 3 (1).

44. IMO Council, 52nd session, 1984, C 52 /l l/Add.l, 31 May 1984, Note by the Secretary-General,

2–3, paras 9–10.

45. LEG 55/5, 1 August 1985, Note by Secretary-General, 4, para 14.

46. LEG 72/4, 20 January 1995; for text of new draft: Annex 1 to that document; LEG/CONF.10,

15 April 1996; LEG 73/3 of 20 July 1995; final text see 35 ILM (1996), 1406.

47. Supra, 4.2.2.

48. LEG XXXVIL/3, 9 October 1978, Report of the Informal Working Group, 3, para 14 (LEG

XXXVII/3), and ANNEX III, Art. 3(2) (a).

49. LEG XXXII/7, 5 December 1978, Report, 14–22, paras 52–89, discussion of alternative I, 22,

para 85, on subparagraph (a).

50. Belgium, Germany, Greece, the Netherlands, and the UK.

51. LEG 69/10/1.

52. LEG 73/WP. 1 of 12 October 1995, Agenda item 14.

53. LEG 73/11 of 8 August 1995, Commentary with Annex on “Draft Convention on Wreck

Removal.”

54. Ibid., Art. VIII(1) (a), Commentary, 3, para 16.

55. Source: IMO/Lloyd’s data as at 1 February 1998.

56. According to Birnie & Boyle, op. cit., 293, the protocols are unlikely to enter into force because

the solutions which they propose seem unsatisfactory and are now out of date.

57. Art. 3(3).

58. Art. 5(4).

59. Art.8.

60. Supra, 2.3.3

61. ILC Report (1994), UN Doc., A/49/10, Chapter V, 381–2, proposed Art. J (exceptions) & 386,

see too draft Art. 17 (national security and industrial secrets); Tomuschat, op. cit., 37ff; see too Szasz, in

Grunawalt et al., op. cit., 286, fn. 31.

62. Supra, 4.2.2.

63. Supra, 3.3.2.

64. Supra, 2.4.2. C.

Chapter V

1. Supra, 3.4.4.

304

The Newport Papers
2. Supra, 3.4.1.

3. Parry, The Consolidated Treaty Series (1980), vol. 212, 198–201.

4. “Tout capitaine est tenu, autant qu’il peut le faire sans danger sérieux pour son navire, son

équipage, ses passagers, de prêter assistance à toute personne, même ennemie, trouvée en mer en danger de se perdre....”

5. McIntyre, op. cit., 251.

6. Publicover v. Alcoa S.S. Co. (1948), 168 F. 2d, 672, 277 in which the convention was mentioned

in passing; and US v. James L. Richards (1950), 179 F. 2d, 530: McIntyre, op. cit., 250.

7. Ibid., 250.

8. Ibid., 251.

9. Wildeboer, The Brussels Salvage Convention (1965), 268; confirmed by Rodiére, Traité Général

de Droit Maritime. Evénements de Mer (1972), 164.

10. Infra, 6.2.8 B.

11. Art. 1, in fine.

12. Art. 16 (1).

13. Pictet, Commentary, II Geneva Convention (1960), 132–3.

14. Art. 10 (1) & (2).

15. See Art. 2.

16. Infra, 6.2.8 C.

17. IMO Information Sheet.

18. IMCO Docs., International Conference on Load Lines, 1966, LL/CONF/1, 67, proposal for a

new Art. 5.

19. The United States formally declared war on Japan on December 8, 1941; on Germany on December 11, 1941; McIntyre, op. cit, 3, fn. 1.

20. Ibid., 25.

21. Hackworth, V Digest of International Law (1943), 353–55.

22. Ibid., 355.

23. Ibid., 356.

24. Toth, 19 Juridical Review (1974), 152, fn. 8; McIntyre, op. cit., 26.

25. McIntyre, op. cit., 26.

26. Ibid., 26.

27. Infra, 5.2.3.D.

28. IMO Doc. LL/CONF/1, 7 and General Committee, LL/CONF/C.1/SR.10, 10 March 1966, 9.

29. General Committee, ibid., 9.

30. Ibid., 9.

31. General Committee, LL/CONF/C.1/WP.26, 26 March 1996.

32. Art. 31 (2) to (4).

33. Obviously one can never exclude judicial review; The ICJ might find itself competent to decide whether the circumstances invoked affect the vital interests of a State; The ICJ has, e.g.,

acknowledged that concerns expressed by Hungary for its natural environment in the region affected

by the Gabcíkovo-Nagymaros Project related to an “essential interest” of that State, within the meaning given to that expression in Art. 33 of the Draft of the ILC’s current draft on State Responsibility:

judgment of 25 September 1997, ICJ General List No. 92, para 53.

34. Infra, 5.2.3. C.

35. Supra, 3.4.4.

36. As acknowledged by the ICJ in the Fisheries Jurisdiction case, ICJ Rep. (1973), 63, para. 36.

305

International Environmental Law and Naval War
37. Art. 62 (1)(a) & (b).

38. Respectively, ICJ Rep. (1973), 63, para. 36 and ICJ judgment of 25 September 1997, General

List No. 92, para 102–3 ff.

39. Art. 31 (1).

40. Art. 31 (2) to (4).

41. This is similar to Art. VI (c) of the 1948 Safety Convention, but different from Art. XIX (1) of

the 1954 OILPOL Convention: infra, 5.2.3. D & 5.2.4. A.

42. 1969 Vienna Convention, Art. 65; Toth, 19 Juridical Review (1974), 276–281.

43. Supra, 3.4.3.

44. IMO Information Sheet.

45. IMCO press release, 6 May 1960.

46. Arts 2 & 4.

47. Art. 2.

48. International Conference on Safety of Life at Sea, 1948, Heads of Delegations Conference,

Minutes, 2nd meeting May 24th, 1948, Comments by the Netherlands, 4.

49. On Art. 282: supra, 3.4.2.A.

50. COLREGS can best be described as the “rules of the road” for the sea. Historically, technically and legally they are separate from the Safety Conventions. Yet at the 1929 Safety Conference,

revisions to the COLREGS were proposed and from there grew the tradition, followed by all other

Safety Conferences up to the 1960s, of appending recommend changes to the COLREGS in a separate

annex to the final act of the Safety conferences. It was only in 1972 that the COLREGS were again separated from the Safety Conferences and revised at a separate Conference: Infra, 6.2.3.

51. Art. 40.

52. IMCO press release, 6 May 1960.

53. Op. cit., 139.

54. International Conference on Safety of Life at Sea, London, 1948, SAFCON 9, Note on UK

proposals, 4.

55. Final Report of the General Provisions Committee, SAFCON 50, May 28th, 1948, Annex A,

Art. 3.

56. Ibid., Annex D, Draft Resolutions.

57. Adopted in the Final Act as Resolution 1.

58. General Provisions Committee, Draft Minutes, 9th meeting, May 20th, 1948, 6.

59. Ibid., 4.

60. Ibid., 4.

61. UK declaration at Heads of Delegations Conference, Minutes, 2nd meeting, May 24th, 1948,

11.

62. See in particular UK statement, International Conference on Safety of Life at Sea, Heads of

Delegations Conference, Minutes, 2nd Meeting, May 24th, 1948, 1.

63. U.S. statement, General Provisions Committee, Minutes, 2nd Meeting, May 3rd, 1948, 2; UK

declaration, Heads of Delegations Conference, Minutes, 2nd Meeting, May 24th, 1948, 11.

64. U.S. statement, General Provisions Committee, Minutes, 2nd Meeting, May 3rd, 1948, 2; UK

declaration, Heads of Delegations Conference, Minutes, 2nd Meeting, May 24th, 1948, 11.

65. Second Plenary Session, June 2nd, 1948, Summary by the Chairman, 7.

66. UK declaration, Heads of Delegations Conference, Minutes, 2nd Meeting, May 24th, 1948,

11.

67. General Provisions Committee, Draft Minutes, 3rd meeting, May 5th, 1948, 2.

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The Newport Papers
68. Statements by the USSR and Poland, General Provisions Committee, Draft Minutes, 9th

Meeting, May 20th, 1948, 6; and at Heads of Delegations Conference, Minutes, 2nd Meeting, May 24th,

1948, 1l–13.

69. Statement by Greece, Annex to General Provisions Committee, Minutes, 4th Meeting, May

7th, 1948, in fine.

70. Heads of Delegations Conference, Minutes, 4th meeting, May 24th, 1948, 12–3.

71. The final decision carried in the General Provisions Committee by a vote of 8–5–7: General

Provisions Committee, Draft Minutes, 9th meeting, May 20th, 1948, p. 6; and in the Heads of Delegations Conference by a vote of 17–3: Heads of Delegations Conference, Minutes, 2nd Meeting, May 24th,

1948, 13 in fine.

72. Statement by Greece in fine, Annex to General Provisions Committee, Minutes, 4th meeting,

May 7th, 1948.

73. General Provisions Committee, Draft Minutes, 9th meeting, May 20th, 1948, l0.

74. Heads of Delegations Conference, Minutes, 2nd Meeting May 24th, 1948, 13; Second Plenary

Session, June 2nd, 1948, 5–7; and SAFCON 59, Note by the Indian Delegation, June lst, 1948.

75. UK statement, General Provisions Committee, Draft Minutes, 3rd meeting, 5th May 1948, 2;

U.S. statement, General Provisions Committee, Draft Minutes, 9th meeting, May 20th, 1948, 6.

76. U.S. statement, ibid., 6.

77. The proposal to remove the text on the issue of control was supported in the General Provisions Committee by a mere two delegations, and in the Heads of Delegations Conference by a mere 4

votes: Minutes, 2nd meeting, May 24th, 1948, 1 & 13 in fine.

78. See final Art. V on Carriage of Persons in Emergency based on a proposal (Art. 3(b)) by the

U.S.

79. U.S. statement, General Provisions Committee, Minutes, 3rd meeting, May 3rd, 1948, 2.

80. IMCO press release, 6 May 1960.

81. Supra, 5.2.2. B.

82. International Conference on Safety of Life at Sea, Heads of Delegations Conference, May 24th,

1948, Minutes, 2nd meeting, Report on the work of the General Provisions Committee, 1.

83. Supra, 3.4.4.

84. Yearbook ILC (1980), vol. II, pt. 2, 49, para 31.

85. Judgment of 25 September 1997, ICJ General List No. 92, paras 50–58.

86. Supra, 3.4.2.D.

87. IMCO/SAFCON/1, 2.

88. Ibid., 2.

89. IMCO/SAFCON/Plenary S.R. 3, June 10th 1960, 5.

90. Ibid.

91. GEN/SR/1, 18 May 1960, and GEN/SR.l/Cor. 1, 20 May 1960, 3; IMCO/SAFCON/Plenary S.R

3, l0 June 1960, 5–6.

92. GEN/SR/1, 18 May 1960, as corrected by GEN/SR.1/Cor.1, 20 May 1960, 3.

93. GEN/21 of 27 May 1960; on the 1954 Convention see infra, 5.2.4. A.

94. GEN/SR/16 of 31 May 1960, including corrections in GEN/SR.16/Cor.1, 8 June 1960,

2.

95. Ibid., 3: (a) Vote of 5–23–1 on deletion of Art. VI; (b) Vote of 20–8–2 on U.S. proposal in regard

to Art. VI (a).

96. IMCO/SAFCON/Plenary S.R. 3, 10 June 1960 and IMCO/SAFCON/Plenary SR. 3, 6.

97. IMO Information Sheet.

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International Environmental Law and Naval War
98. International Conference on the Safety of Life at Sea, 1974, Committee I,

SOLAS/CONF/C.1/4 , 25 October 1974, 3 and SOLAS/CONF/SR.5, 29 January 1975, 4–6.

99. Birnie & Boyle, op. cit., 266.

100. Supra, 5.2.3. C.

101. The published travaux préparatoires do not contain any explanation for this addition.

102. A similar obligation to limit the suspension for the duration of the hostilities follows from

Art. 22 of the Washington Naval Disarmament Treaty (Five Power Naval Treaty), concluded in 1922;

see infra, 5.3.

103. International Conference on Pollution of the Sea by Oil, 1954.

104. International Conference on Pollution of the Sea by Oil, 1962.

105. Infra, 6.2.4.

106. Supra, 5.2.2. B.

107. Birnie & Boyle, op. cit., 266.

108. International Conference on Marine Pollution, held in London, 1973, IMO Docs MP/CONF/

1 ff.

109. None of the published travaux préparatoires (labelled “PCMP,” and distributed at the Conference as “MP/CONF/...”) contains a suspension clause related to war.

110. Infra, 6.2.5.B.

111. Supra, 1.2.1. A.

112. Art. III (3).

113. Source: IMO/Lloyd’s data as at 1 February 1998.

114. Art. III (1) & (2).

115. Art. IV.

116. Art. V (3).

117. Art. V (1).

118. Title III of Pub L. 100–688, 102 Stat. 4152, 33 USC 2501 et seq., para 3104; Cumulative Digest of

US Practice in International Law, 1981–88, vol. 2, 2093.

119. Art. 38.

120. Art. 89.

121. See 1948 Convention, Art. IV on cases of Force Majeure.

122. Art. 31 of the ILC’s current draft on State Responsibility describes grounds of Force majeure

and fortuitous events as follows: (1) The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act was due to an irresistible force or to an

unforeseen external event beyond its control which made it materially impossible for the State to act

in conformity with that obligation or to know that its conduct was not in conformity with that obligation; (2) Paragraph 1 shall not apply if the State in question has contributed to the occurrence of the

situation of material impossibility; see in this sense also: Rainbow Warrior Arbitration (1990), 82 ILR,

499, 553–4, para 78.

123. Supra, 5.2.2. A & B.

124. Supra, 5.2.3. C.

125. Supra, 3.4.2. C.

126. Art. 28.

127. Art. 32.

128. Art. 35.

129. Supra, 3.4.4.

130. Supra, 5.2.3. D.

308

The Newport Papers
131. Supra, 5.2.2. B.

132. Supra, 5.2.3. E.

133. Supra, 5.2.4. B.

Chapter VI

1. Simonds, 29 Stanford JIL (1992), 194; Sands, op. cit., 232.

2. 16, CBNS, 310; Matsunami, Immunity of State Ships as a Contribution towards Unification of the

Laws on the Subject (1924), 37–9.

3. Malanczuk, op. cit., 119.

4. Steinberger, 10 EPIL (1987), 432ff.

5. O’Connell, M., 3 Ind. J. Global Legal Stud. (1995), 59.

6. Universal Consolidated Inc. v. Bank of China (1994), 107 ILR, 353, 355ff., where a distinction is

made between domestic sovereign immunity, based on constitutional law and foreign sovereign immunity, based on customary international law.

7. Steinberger, 10 EPIL (1987), 435.

8. See the three volumes of the International Law Reports (63, 64, 65) devoted exclusively to

questions of State Immunity; On the evolution of the State immunity theory in U.S. law, see: Stena

Rederi v. Petroleos Mexicanos (1991) 103 ILR, 433, 437ff.; US v. Moats (1992), 103 ILR, 480, 487ff.

9. E.g., Libyan Arab Socialist People’s Jamahiriya v. Actimon SA (1985), 82 ILR, 30; Janini v. Kuwait University (1995), 107 ILR, 367–70; Gates et al. v. Victor Fine Foods et al. (1995), 107 ILR, 371–81;

Malanczuk, op. cit., 119–21.

10. Joseph v. Consulate General of Nigeria et al. (1987), 101 ILR, 485, 493; Saltany and Others v. Reagan et al. (1989), 87 ILR 680; Jaffe v. Miller and Others (1990), 87 ILR, 197; O’Connell, M., 3 Ind. J.

Global Legal Stud. (1995), 59.

11. Letelier v. Republic of Chile (1980), 63 ILR 378; Malanczuk, op. cit., 120–21.

12. Argentine Republic v. Amerada Hess (1989), 81 ILR, 659; Cumulative Digest of US Practice in International Law, 1981–88, vol. 2, 1619–31; see too Princz v. FRG (1992–4), 103 ILR, 594ff., 604ff., in

which the plaintiff argued in vain that a violation of the Hague Rules on Land Warfare was a violation

of jus cogens for which no sovereign immunity existed.

13. 99 ILR, 80; writ for certiorari denied.

14. 66 ILR 212 at 225.

15. Shearer, 11 EPIL (1989), 321; Heintschel v. Heinegg & Donner, 37 GYIL (1994), 298.

16. 7 Cransch (1812), 145–46; UN, Materials on Jurisdictional Immunities of States and their Property

(1982), UN Doc. ST/LEG/SER.B/20, 100.

17. For a discussion of subsequent U.S. and international case law, see Rex. v. Compania De

Vapores, SA, (1981), 72 ILR, 93.

18. The Parlement Belge (1879) 4 P.D. and on appeal (1880) 5 P. D. 197; for more recent applications of the principles enunciated in the latter case see: Flota Maritima Browning de Cuba SA v. The

Steamship Canadian Conqueror et al. and the Republic of Cuba (1962), 42 ILR, 125–34; Swiss Israel Trade

Bank v. Government of Salta and Banco Provincial de Salta (1972), 55 ILR 411; The Philippine Admiral

(1975), 64 ILR, 90; I Congreso del Partido (1979) 64 ILR, 227; US v. Ruiz (1985), 102 ILR, 122, 124–7;

Holy See v. Starbright Sales (1994), 102 ILR 163–73; Kuwait Airways Corporation v. Iraqi Airways Company, 103 ILR, 340 at 398; KPMG v. Davison (1996), 104 ILR, 526ff.

19. Done at Brussels, April 19th, 1962; ILC Report (1991), UN Doc. A/46/10, Chapter II, Jurisdictional immunities of States and their Property [hereinafter Jurisdictional Immunities], 173, Art. 3, para 1.

20. Signed at Brussels, 24 May, 1934, Jurisdictional Immunities, 175, Art. IV.

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International Environmental Law and Naval War
21. Signed at Montevideo, 19 March 1940, Jurisdictional Immunities, 177, Arts. 35 & 36 (1).

22. Art. 30 of Convention, ibid., 156 at 165.

23. Art. 16 (l), (2), (3).

24. Shearer, 11 EPIL (1989), 320.

25. For a judicial interpretation of the term warship, see: Naval and Military Works or Materials,

US and Germany: Mixed Claims Commission, Ann. Dig. (1923–24), Case No. 221, 405; For the U.S. understanding of “warships” and “auxiliaries,” see: Cumulative Digest of US Practice in International Law,

1981–88, vol. 2, 1382–86.

26. Smith, op. cit., 123–41.

27. Jurisdictional Immunities, Commentary on Art. 1, 11–12.

28. Shearer, 11 EPIL (1989), 322; Treves, in Dupuy & Vignes, op. cit., vol. I, 902.

29. Timagenis, International Control of Marine Pollution (1980), vol. I, 61.

30. Rolph, 135 Military LR (1992), Winter Issue, 137–65; Nagle, 1 VJIL (1990), 131–2.

31. E.g., the ILC repeatedly stressed that it would not deal with “the question of either

State-owned or State-operated aircraft engaged in commercial service,” neither with “the question of

space objects”: Jurisdictional Immunities, 10 & 127.

32. Art. 5.

33. Art. 2(l)(a).

34. Supra, 5.2.2. B.

35. IMO Doc. LL/CONF/l, U.S. proposal, 24; observations by the Netherlands and France, ibid.,

24–5; LL/CONF/C.l/WP.21, 16 March 1966; LL/Conf/SR.3 of 12 October 1966; LL/CONF/C. l/SR.

19, 20 October 1966.

36. Treves, op. cit., 903.

37. The Rules of the Road at Sea were originally customary rules of seamanship, ascertained by

the English Admiralty Court. They were published in 1840 in code form by Trinity House: O’Connell,

D., op. cit., 770 & 831.

38. Arts. 2 (l), 40, 65.

39. Art. 40 on UK mandate.

40. General Provisions Committee, Minutes, 1st meeting, April 28th, 1948, 3, item 9.

41. General Provisions Committee, Draft Minutes, 9th meeting, May 20th, 1948, 4.

42. Ibid.

43. U.S. proposal: Section 3 (a) of Chapter I of SAFCON 4; French comments: General Provisions Committee, Draft Minutes, 7th meeting, May 13th, 1948, 2.

44. General Provisions Committee, Draft Minutes, 8th meeting, May l9th, 1948, 2.

45. Infra, 6.2.4.

46. At that time the Soviet Icebreaker Lenin and the USS Savannah were the only civilian nuclear-powered vessels in operation: Discussions of the Plenary, International Conference on Safety of

Life at Sea, 1960, IMCO/SAFCON/Plenary/SR 4, 13 June 1960, 6–7, item 4.

47. A proposal by Germany to extend the exemption to military auxiliary ships was withdrawn:

IMCO/SAFCON/l, 10; GEN/SR.4, 19 May 1960 as corrected by GEN/SR.l/Cor. 1, 20 May 1960, 2.

48. The 1960 Convention entered into force on 26 May 1965.

49. Infra, 6.2.3.

50. Treves, op. cit., 903.

51. Conference on Revision of the International Regulations for Preventing Collisions at Sea

1972, held at IMO headquarters, 4–20 October 1972.

52. Source: IMO/Lloyd’s data as at 31 December 1994.

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53. IMO information sheet.

54. Rule 1 (c ), Rule 3 (g), (iv), (v), Rule 27 (b), (f).

55. As in Rule 1 (e) on vessels of “special construction or purpose”; Warships and other military

ships are furthermore subject to all provisions which by their wording apply to “all vessels” without

exception, to “power-driven” vessels, to vessels “restricted in their ability to manoeuvre,” or to “vessels not under command.”

56. In 1988, it was estimated that there were about 7,020 naval ships afloat on the world’s oceans,

against an estimated 75,680 merchant vessels of 100 gross tons or larger: Lloyd’s Register of Shipping

Statistical Tables 1988 (London: 1988); Morgan, in Van Dyke et al., Freedom for the Seas in the 21st Century (1993), 439.

57. Art.VII.

58. 11 ILM (1972), 778.

59. Agreement between the Government of the UK and the Government of the USSR concerning

the Prevention of Incidents at Sea Beyond the Territorial Sea, done 15 July 1986, 37 ICLQ (1988), 420;

The other agreements were concluded in 1988 and 1989: Nagle, 1 VJIL (1990), 143.

60. Ibid., 126.

61. E.g., Arts. II (3), (6).

62. See Nagle, 1 VJIL (1990), at 131, fn. 33, quoting the American naval authority Ashley Roach

and the late Australian military commander and lawyer Daniel O’Connell.

63. Done at Moscow, 12 June 1989, 28 ILM (1989), 877.

64. Art. II, which lists four types of “dangerous military activities.”

65. Art. VIII (1).

66. At page 2, para 6 of the proposals by the government of the UK, dated April 1954, to be found

in compilation of texts on the 1954 OILPOL Conference, held by IMO, London.

67 General Committee, Minutes, 8th Meeting, May 10th, 1954, 12; Minutes, 9thMeeting, May 1lth,

1954, 1–2.

68 Ibid., 14.

69 Third and Final (Plenary) Session, May 12th, 1954, Report by the Chairman of the General

Committee, 10.

70 IMCO, International Conference on Prevention of Pollution of the Sea by Oil. Held in London, 26 March-13 April 1962, OP/CONF/3,7 with UK and U.S. proposals.

71. Ibid., l–2 (France), 5 (Germany), 6 (India); see too OP/CONF/3/Add. l, 8 January 1962, Norwegian proposals, 2 & 7.

72. OP/CONF/3, 46–47, proposals by Greece and the UK.

73. E.g., the debates reproduced in OP/CONF/C.l/SR.l, 13 April 1962, Summary Record, lst meeting, 27 March 1962, 6–7.

74. CONF/C.l/SR.5, 13 April 1962, Agenda item 7.

75. Timagenis, op. cit., 171ff.

76. Ibid., 61, 161–2.

77. Ibid., 176–9.

78. Supra, 1.2.1. A.

79. Preparatory Meeting for the International Conference on Marine Pollution, 1973.

80. MP/CONF/8/8, 4 July 1973, 3.

81. MP/CONF/8/11, 10 July 1973, 2–3 (Norway); MP/CONF/8/17, 2 August 1973, 2 (Japan).

82. MP/CONF/8/10/Add.1, 5 October 1973, 5.

83. MP/CONF/8/13, 18 July 1973, 2.

311

International Environmental Law and Naval War
84. MP/CONF/C.l/WP. 13, 12 October 1973, Committee I, Agenda item 3, amendment to Art.

3(2).

85. MP/CONF/C.l/WP. 13, 12 October 1973, Committee I, Agenda item 3, Proposed amendment

to Art. 3 (2).

86. MP/CONF/WP. 17, 30 October 1973, 2.

87. MP/CONF/SR. l0, 4 March 1974, agenda item 7.

88. A/AC.138/SC.III/L.27 (1973, mimeo.), principle (g) (Australia): Nordquist et al., United Nations Convention on the Law of the Sea 1982, vol. IV, (1991), 418.

89. A/AC.138/SC.III/L.28 (1973, mimeo.), Art. XII (Canada): ibid., 418.

90. A/AC.138/SC.III/L.32 (1973, mimeo.), Art. 7, para 2 (USSR): ibid., 418.

91. A/AC.138/SC.III/L.40 (1973, mimeo.), Art. XXIII (US): ibid., 418.

92. US (1974, mimeo.), Art. XIII: ibid., 418.

93. UNCLOS III, Official Records, vol. IV, (1975), Summary Record, 19th Meeting, Third Committee, Third Session, 26 March 1975, 85, para 32.

94. See e.g., proposals for Chapter IX entitled “Sovereign Immunity,” which included Art. 42;

Document A/CONF.62/WP. 8/Part III, UNCLOS III, Official Records, vol. IV, Documents of the

Conference, 171–6.

95. Nordquist et al., op. cit., 421; Oxman, 24 VJIL (1984), 821, fn. 34; Heintschel v. Heinegg &

Donner, 37 GYIL (1994), 298.

96. Heintschel v. Heinegg & Donner, ibid., 298.

97. 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), Art. 4 (4); 1976 Protocol for the Prevention of Pollution of the Mediterranean Sea

by Dumping from Ships and Aircraft, Art. 11 (1); 1982 Regional Convention for the Conservation of

the Red Sea and Gulf of Aden Environment, Art. XIV; 1986 Protocol for the Prevention of Pollution

of the South Pacific Region by Dumping, Art. 12 (4); 1990 Protocol Concerning Specially Protected

Areas and Wildlife in the Wider Caribbean Region (SPAW Protocol), Art. 2 (3); 1992 Convention on

the Protection of the Black Sea Against Pollution, Art. IV; 1992 Convention on the Protection of the

Marine Environment of the Baltic Sea Area (Helsinki Convention), Art. 4 (3).

98. Supra, 3.1.2.

99. Art. XIV.

100. 1983 Convention for the Protection and Development of the Marine Environment of the

Wider Caribbean Region: Interpretative Statement by the United States and the UK attached to the

Final Act; 22 ILM (1983), 226, 57 BYIL 1986 (1987), 553; Cumulative Digest of US Practice in International Law, 1981–88, vol. 2, 2096; 1986 Convention for the Protection of the Natural Resources and

Environment of the South Pacific Region (SPREP), U.S. Understanding Sen. Treaty Doc., 101–21, p.

53: Cumulative Digest of US Practice in International Law, 1981–88, vol. 2, 2099; 1989 Basle Convention

on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, U.S. Understanding; Sen. Treaty Doc., 102–5, Sen. Exec. Rep. 102–36:(2), See too Declaration made by Ecuador;

1992 Convention on Biological Diversity, proposed U.S. understanding: Sen. Treaty Doc., 103–20, p.

XVII.

101. Oxman, 24 VJIL (1984), 820–l; Morgan, op. cit., 439–40.

102. Timagenis, op. cit., 276, fn. 352.

103. 140 CONG. REC. S14, 467–04, 14, 472 (Oct. 6, 1994).

104. 133 CONG. REC. 511, 896 (1987) (statement of Sen. Lautenberg).

105. Dehner, Vessel-Source Pollution and Public Vessels (1995), IV (A), p. 8 (on file with author).

106. Kiss & Shelton, op. cit., 173–74.

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107. Matsunami, op. cit., 97ff.

108. Dehner, op. cit., IV (B), p. 8.

109. 1993 Draft Amendment, IMO Doc. LC/AM l/9, 30.

110. 1996 Protocol, concluded 8 November 1996, 36 ILM (1997), 1.

111. Art. 3.

112. Statement of 11 November 1994 by B. Okamura, Deputy Director, Marine Environment Division, cited by Dehner, op. cit., V (A) (2) (a), p. 12.

113. Oxman, 24 VJIL (1984), 820–21.

114. Treves, op. cit., 902.

115. Morgan, op. cit., 441.

116. UNEP/IUCC, Meeting on Military Activities and the Environment, Linkoping, 27–30 June 1995,

UNEP/MIL/3, 7 July 1995.

117. Supra, 1.2.1. D.

118. Second International NATO/CCMS Conference, The Role of the Military in Protecting the Ozone

Layer, January 24–25, 1994, Brussels, Belgium, vol. 1, 27.

119. Viega da Cunha, ibid., 47.

120. Proceedings of the International Symposium on The Environment and Defence, 13–15 September

1995, Pilot Study on Defence Environmental Expectations, CCMS Report No. 211, NATO (1995).

121. Schachte, 23 ODIL (1992), 61ff.

122. Dehner, op. cit., IV B., p. 8.

123. De Marco & Quinn, in Grunawalt et al., op. cit., 88–9; Quinn, comments, ibid., 156.

124. De Marco & Quinn, ibid., 91.

125. U.S. Navy, Opnavinst 5090.1B, 1 November 1994, Procedures For Implementing NEPA.

126. 40 CFR para 1506.11.

127. De Marco & Quinn, op. cit., 91, fn. 14.

128. Dated January 4, 1979.

129. Heintschel v. Heinegg & Donner, 37 GYIL (1994), 299 in relation to Art. 236 UNCLOS.

130. Colonel David L. Carr, Considerations for the Development of a DOD Environmental Policy for

Operations Other Than War, May 1997 (on file with author).

131. In Art. 1 (a) (i) and I (1) (j) respectively.

132. Art. 4 and II respectively.

133. Birnie & Boyle, op. cit., 375.

134. Supra, 4.2.1.

135. Arts. 9 and IV 3 (a) respectively.

136. See Statement made by IAEA representative during 71stsession of the IMO Legal Committee,

10–14 October 1994, LEG 71/13, 17 October 1994, Report, 4, para 15.

137. Supra, 3.1.1.

138. Explanation given to the author by a member of IAEA’s legal service.

139. Supra, 1.2.2. D.

140. Adede, The IAEA Notification and Assistance Conventions in Case of a Nuclear Accident (1987),

126–9; Birnie & Boyle, op. cit., 129, 365; Cameron, in Cameron et al., Nuclear Energy Law after Chernobyl

(1988), 23–24; Politi, in Francioni, & Scovazzi, op. cit., 479–80.

141. Szasz, 2 JMLC (1971), No. 3, 549–550.

142. Pursuant to Art. XIV.l.

143. Most of the research in maritime nuclear propulsion was done with military applications in

mind: Könz, 57 AJIL (1963), 109; Szasz, 2 JMLC (1971), No. 3, 553.

313

International Environmental Law and Naval War
144. Könz, 57 AJIL (1963), 108–9; Szasz, 2 JMLC (1971), No. 3, 553.

145. Könz, 57 AJIL (1963), 108 fn. 40, 109.

146. Ibid., 108–9.

147. Since the residual liability of the licensing State is maintained, the actual effect of this exception is more symbolic than real: Szasz. 2 JMLC (1971), No. 3, 557.

148. Ibid., 563, fn. 118.

149. See infra, 6.2.6. C, intervention by Mr. Zhudro at the International Legal Conference on Marine Pollution Damage, 1969.

150. Done at Geneva on 10 October 1989, ECE/TRANS/79, UN/ECE, Inland Transport Committee.

151. Art. 4 (a) excludes places to which the public has no access.

152. LEG/CONF/C.2/1, 12 November 1969,Marine Pollution Damage Conference 1969, 499, Draft Art. XI.

153. Ibid., 499, and LEG/CONF/C.2/SR.13, 20 November 1969, ibid., 696.

154. LEG/CONF/C.2/1, 12 November 1969, ibid., 500.

155. Ibid., 438 & 500 respectively.

156. LEG/CONF/C.2/SR.13, 20 November 1969, ibid., 696.

157. Ibid., 697.

158. Ibid., 700–1.

159. LEG/CONF. 2/, draft Art. 4 (2) (a), IMCO-Official Records IOPC Conference 1971, 51.

160. Supra, 4.2.2.

161. Supra, 4.2.3.

162. Supra, 6.2.6. A.

163. The first draft text can be found in LEG 64/4, 25 January 1991, agenda item 4.

164. The first exoneration provision was taken from the CLC Art. XI (1) and (2), the second from

the IOPC Fund Convention Art. 4(2): see LEG 64/4, 25 January 1991.

165. Infra, 6.2.8. C.

166. LEG 64/10, 27 March 1991, Report of the Legal Committee, 64th session, 7, paras 37–38.

167. LEG 64/4/2, 6 March 1991, 5–6, and LEG 64/4/2/Corr. 1, 19 March 1991, submission in regard

to agenda item 4.

168. LEG 66/9, 26 March 1992, Report, 12–3, paras 59–61.

169. LEG 67/3/6, 4 September 1992, Submission by Mexico and the United States on sovereign immunity, 1 (discussion); 2 (proposal); LEG 67/9, 13 October 1992, Report of the Legal Committee, 67th

session, 14, paras 66–69.

170. LEG 72/4, 20 January 1995 and LEG 73/WP. 1, 12 October 1995, Draft Report, 3, para 10.

171. LEG/CONF/6, 13 October 1969, Marine Pollution Damage Conference 1969, 48;

LEG/CONF/Conf/3*, ibid., 200, observations by Singapore.

172. Art. II (1).

173. Art. I (1).

174. Art. II (4).

175. Art. III (d).

176. Art. III (a), (b), (c).

177. Art. V.

178. Art. VI.

179. LEG/CONF/Conf/3*, September 1969, Marine Pollution Damage Conference 1969, 195.

180. LEG/CONF/C.l/SR.6, ibid., 309–10, interventions by Cameroon, Ghana, Venezuela, Guatemala, Indonesia.

181. Ibid., p. 311, intervention by Cameroon.

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182. LEG/CONF/C.1/SR.6, Marine Pollution Damage Conference 1969, 310, intervention by

Yugoslavia.

183. Ibid., 311.

184. LEG/CONF/C.l/WP.4, 14 November 1969, ibid., 250; LEG/CONF/C.l/SR.6, ibid., 308–9.

185. Intervention by the Philippines & Greece, ibid., 309; Intervention by Syria, ibid., p. 310.

186. LEG/CONF/Conf/3*, September 1969, ibid., 197–8, 223.

187. LEG/CONF/C.l/SR.6, ibid., p. 309.

188. Ibid., 311–12.

189. Ibid., 309–11, interventions by the USSR, Bulgaria, Ukraine.

190. Ibid., 310–311.

191. Ibid., 311.

192. International Conference on Marine Pollution, 1973.

193. MP/CONF/6, 10 October 1973, International Conference on Marine Pollution, 1973, Note by

the Secretariat, 11.

194. MP/CONF/SR. 13, 4 March 1974, inter alia, agenda item 8, 25.

195. Birnie & Boyle, op. cit., 286.

196. Infra, 6.2.8. C & 6.2.9.

197. Birnie & Boyle, op. cit., 288.

198. Wildeboer, op. cit., 1.

199. Ibid., 27.

200. Ibid., 26–28.

201. Le Clère, L ’Assistance aux Navires et le Sauvetage des Epaves (1954), 52–3.

202. Protocol, Art. 1.

203. Wildeboer, op. cit., 31.

204. 1926 International Convention for the Unification of Certain Rules relating to the Immunity

of State-owned vessels, Art. 3, paras 1 (2) & 3; 1940 Montevideo Treaty on International Commercial

Navigation Law, Arts 36 & 39.

205. Comité, Conference of Rijeka, Yugoslavia, 1959, discussed by Wildeboer, op. cit., 30–31.

206. Supra, 5.2.1. A.

207. Art. 4(1); entered into force on 15 August 1977.

208. As of February 1994; Source: The Ratification of Maritime Conventions, Lloyd’s of London

Press Ltd., vol. I.

209. LEG/CONF.7/11, 31 January 1989, International Conference on Salvage, 1989, Observations

by France.

210. LEG XLVI/5, 17 July 1981, Report of the Comité on the question of salvage, p. 1.

211. Art. 13 (1) (b) and Art. 14; Supra, 5.2.1. B.

212. Art. 8 (1) (b) and 8 (2) (c).

213. Art. 9.

214. Art: 1–2 (2), Comité draft Annexed to LEG XLVI/5, 17 July 1981

215. LEG 52/4, 3 July 1984, Note by the Secretariat, Annex 2: Comité, Report to IMO on the draft

international convention on salvage, 13.

216. LEG 52/9, 21 September 1984, Report of the Legal Committee, 52nd session, 9–10, paras 37 &

42; LEG 53/8, 3 January 1985, Report of the Legal Committee, 53rd session, 11–12, paras 44–45; LEG

54/7, 26 April 1985, Report of the Legal Committee, 54th session, 12–13, paras 48–52.

217. LEG 56/9, 21 April 1986, Report of the Legal Committee, 56th session, 5–7, 15–18.

218. LEG 57/3/Add.l, 15 May 1986, Note by the Secretariat, proposal for new para 2(f), 5.

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International Environmental Law and Naval War
219. LEG 57/7, 30 September 1986, U.S. Submission, 1.

220. LEG 57/12 7 November 1986, Report of the of Legal Committee, 57th session, 22–23, paras

106–111, 24–25, paras 118–l23.

221. LEG/58/12 of 28 October 1987, Report of the Legal Committee, 58th session, 4–6, paras 15–22.

222. Ibid., paras 9–11, 44–53.

223. LEG/CONF.7/10, 31 January 1989, Observations by FRG, 10, para 8.

224. LEG/CONF.7/13, 8 February 1989, Submission by the United States, 1–2.

225. Ibid., 3, Proposed Art. 25 bis.

226. LEG/CONF.7/CW/WP.10, 18 April 1989, Proposal submitted by Spain, amendment to Art.

25.

227. LEG/CONF.7/CW/RD/5, 25 April 1989, Consideration of draft Art. 25 on State-owned vessels, p. 2.

228. See too final text of Art. 5 on Salvage operations controlled by public authorities; Art. 25 on

State-owned cargoes, Art. 26 on Humanitarian cargoes and LEG/CONF.7/CW/RD/8, 26 April 1989,

which records the formal adoption of the relevant provisions.

229. Source: IMO/Lloyd’s data as at 1 February 1998.

230. 1969 Vienna Convention on the Law of Treaties, Art. 30, (3).

231. LEG 52/9, 21 September 1984, Report of the Legal Committee, 52nd session, 4, para 16.

232. Report to IMO on the draft international convention on salvage (...) “designed to replace the

International Convention for the Unification of Certain Rules of Law to (sic) Assistance and Salvage at

Sea made in Brussels on 23 September 1910.”

233. E.g., the UK is a party to all three Salvage Instruments.

234. Art. 1 (1) b.

235. LEG 52/4, 3 July 1984, Note by the Secretariat, Annex 2, Comité, Report to IMO on the draft

international convention on salvage, 13.

236. Supra, 3.1.4.

237. Other disasters mentioned during the preparatory sessions were: Kharg 5 (an accident with

an Iranian Tanker near Morocco, 1989/90) and Porto Santo Island (1990): OPPR/PM/10, 19 April

1990, Agenda item 3, 2, para 5.

238. Res A. 674(16) 19 October 1989 on International Co-operation on Oil Pollution Preparedness

and Response, adopted unanimously.

239. OPPR/PM/3, 19 March 1990 Agenda items 2, 3 and 4, with attached report of the Working

Group on Preparations for the Conference, (MEPC 29/WP. 17).

240. OPPR/PM/5, 23 March 1990, agenda items 2, 3, and 4; Extract from the Report of the MEPC

29th session, Note by the Secretariat, 2, para 13.3.

241. OPPR/PM/15, 11 June 1990, Report of the Preparatory Meeting, held from 14–18 May 1990;

The meeting was attended, inter alia, by delegations of the following countries: Bahrain, China,

France, India, Kuwait, Saudi Arabia, USSR, United States, UK, Sweden, Denmark.... Iran and Iraq

were not represented. (ibid., 2).

242. Documents distributed as OPPR/PM/2 and OPPR/PM/3 respectively.

243. See Annexes 2 and 3 attached to OPPR/PM/15.

244. OPPR/CONF/INF.1 of 26 November 1990.

245. OPPR/CONF/21 of 19 November 1990, Conference, Agenda item 6, Submission by the

United States, Annex.

246. The only change was the substitution of the term “Convention” for “Article”:

OPPR/CONF/CW/RD/2, 20 November 1990.

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247. Supra, 6.2.5. C, D.

248. Draft Arts. IV, VI, VII, VIII.

249. Draft Art. V.

250. Proposed Art. III (1) and (2), submitted by Germany, the Netherlands and the UK in 1995:

see Draft text in Annex to LEG 73/l1, 8 August 1995, Legal Committee, 73rd session, agenda item 11.

251. LEG 73/11, 2, para 10.

Chapter VII

1. Supra, 5.2.2. B.

2. Supra, 5.2.3. C & D.

3. Supra, 4.3 and 4.2.3.

4. Supra, 5.2.4. A.

5. Supra, 6.2.5. B.

6. Birnie & Boyle, op. cit., 267.

7. Supra, 6.2.7, 6.2.8.

8. Supra, 5.2.1. A.

9. For the adjective “Humanitarian” has a definite connotation with the term “armed conflict.”

10. Supra, 6.2.7.

11. Supra, 4.2.2.

12. Supra, 6.2.7. A; Birnie & Boyle, op. cit., 287 argue that the prohibition to take measures against

warships under the convention would nevertheless have to cede in case of “necessity.”

13. Supra, 6.2.9.

14. Supra, 2.1, 3.1.4.

15. Supra, 6.2.9.

16. Amongst others: Kuwait, United States, UK, Saudi Arabia

17. OPPR/PM/14, 30 April 1990, Prep. Meeting, Agenda item 2.

18. OPPR/PM/3, 19 March 1990, Agenda items 2, 3 and 4, with attached Report of the Working

Group on Preparations for the Conference, (MEPC 29/WP.17), Annex I, 2, para 8, 4, para 15 and Annex 2 with compromise resolution.

19. Conference Resolution 10, 30 ILM (1991), 760.

20. Supra, 4.2.4.

21. OPPR/PM/3, 19 March 1990, Annex 2, 2.

22. IMO News (1991), No 1., 1

23. Conference Resolution 2, 30 ILM(1991), 753.

24. Conference Resolution 3, ibid., 754.

25. IMO News (1991), No. 1, 1.

26. Supra, 3.1.4.

27. IMO News (1991), No. 1, 3.

28. Supra, 3.1.2.

29. Mann-Borgese, op. cit., 106; VI OSIR, No. 10 (18 March 1983), 1; No. 14 (15 April 1983), 1;

No. 16 (29 April 1983), 1; No. 21 (3 June 1983), 1; No. 44 (11 November 1983), 2.

30. See on the conditions set by two private companies, Norpol and Red Adair: VI OSIR, No. 20

(27 May 1983), 1; No. 25 (1 July 1983), 1.

31. Ibid., No. 38 (30 September 1983), 1; No. 44 (7 October 1983), 1.

32. Letter of 23 December 1983, UN Doc. S/16238, De Guttry & Ronzitti, op. cit., 89-90.

33. Supra, 3.1.2.

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International Environmental Law and Naval War
34. It is noteworthy that the Organisation itself was a recent one, having been established only on

1 January 1981: Amin, in Malek, op. cit., 139.

35. Supra, 2.1, 2.2.5.A.

36. Supra, 3.2.

37. Supra, 6.2.5. C & D.

38. Following Art. XXI (a).

39. Art. I (1).

40. Supra, 2.4.2, 2.4.3, 3.3.3.

Chapter VIII

1. ICJ Rep. (1996), 226 at 242, para 30, in fine.

318

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Abbreviations and Acronyms

1974-77 GDC Geneva Diplomatic Conference on the Reaffirmation and

Development of International Law Applicable in Armed

Conflicts, 1974-1977

AFDI Annuaire Français de Droit International

AJIL American Journal of International Law

AJPIL Austrian Journal of Public and International Law

Am. U.J. Intl L & Policy American University Journal of International Law and

Policy

Ann. IDI Annuaire de L’Institut de Droit International Yearbook

of the Institut de Droit International

ASIL Proceedings Proceedings of the American Society of International

Law

AYIL Australian Yearbook of International Law

BYIL British Yearbook of International Law

CLC Civil Liability Convention

CLQ Cornell Law Quarterly

Colo. JIEL & P Colorado Journal of International Environmental Law

and Policy

COLREGS Collision Regulations

Comité Comité Maritime International

CTBT Comprehensive Test Ban Treaty

CYIL Canadian Yearbook of International Law

EEZ Exclusive Economic Zone

EIA Environmental Impact Assessment

EILR Emory International Law Review

EJIL European Journal of International Law
ENMOD Convention on the Prohibition of Military or Any Other

Hostile Use of Environmental Modification Techniques

EPIL Encyclopedia of Public International Law

GYIL German Yearbook of International Law

Hague Recueil Recueil des Cours de l’Académie de Droit International

de La Haye

Harv. ILJ Harvard International Law Journal

HLR Harvard Law Review

HNS Convention Hazardous and Noxious Substances Convention

Houston JIL Houston Journal of International Law

IAEA International Atomic Energy Agency

ICJ Rep International Court of Justice Reports

ICLQ International and Comparative Law Quarterly

ICRC Review International Review of the Red Cross

IEL International Environmental Law

IJC International Court of Justice

IJECL International Journal of Estuarine and Coastal Law

IJMCL International Journal of Marine and Coastal Law

ILA International Law Association

ILC International Law Commission

ILC Yearbook Yearbook of the International Law Commission

ILM International Legal Materials

ILR International Law Review

IMCO International Maritime Consultative Organisation

IMO International Maritime Organisation

Ind. J. Global Legal Stud. Indiana Journal of Global Legal Studies

Institut Institut de Droit International

Int. L. & Armed Conflict Comm. International Law and Armed Conflict Commentary

320

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IUCN International Union for the Conservation of Nature

IYHR Israel Yearbook on Human Rights

JACL Journal of Armed Conflict Law

JMLC Journal of Maritime Law and Commerce

LNTS League of Nations Treaty Series

MARPOL International Convention for the Prevention of the

Pollution by Ships

Mil. LR Military Law Review

NEPA National Environmental Policy Act (U.S.)

NILR Netherlands International Law Review

NYIL Netherlands Yearbook of International Law

ODIL Ocean Development and International Law

OECD Organisation for Economic Co-operation and

Development

OOTW Operations Other Than War

OPRC Convention Convention Oil Pollution Preparedness, Response and

Co-operation

OSIR Oil Spill Intelligence Report

PCIJ Permanent Court of International Justice (Reports)

PTBT Partial Test Ban Treaty

RBDI Revue Belge de Droit International

RDMDG Revue de Droit Militaire et de Droit de la Guerre

Rev. Int. Stud. Review of International Studies

RGDIP Recueil Général de Droit International Public

RIAA Reports of International Arbitration Awards

SC United Nations Security Council

SCLR Southern Californian Law Review

SJIL Stanford Journal of International Law

321

International Environmental Law and Naval War
SOLAS Convention Safety of Life at Sea Convention

UKTS United Kingdom Treaty Series

UN/ECE United Nations Economic Commission for Europe

UNCC United Nations Compensation Commission

UNCED United Nations Conference on Environment and

Development

UNCHE United Nations Conference on the Human Environment

UNCLOS United Nations Convention on the Law of the Sea

UNEP United Nations Environment Programme

UNGAOR United Nations General Assembly Official Records

UNTS United Nations Treaty Series

VJIL Virginia Journal of International Law

VJTL Vanderbilt Journal of Transnational Law

WCED World Commission on Environment and Development

WHO World Health Organisation

ZöR Zeitschrift für öffentliches Recht

322

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364

The Newport Papers
About the Author

Dr. Sonja Boelaert-Suominen holds degrees in law from Katholieke Universiteit

Leuven, Harvard Law School, and the London School of Economic and Political

Science.

After graduating with “great distinction” from Leuven University in 1985, she

practiced law as a member of the Brussels bar for three years and lectured at the

Leuven Law School. In 1988 she was awarded the prestigious International Telegraph and Telephone International Fellowship as well as an honorary Fulbright

Scholarship to pursue studies at Harvard University.

Dr. Boelaert-Suominen obtained the degree of master of laws from Harvard

Law School in 1989 and then embarked on an international career, serving as legal adviser with several United Nations agencies and other international

institutions. She has resided and worked in Rwanda, Italy, Finland, the United

Kingdom, Belgium, and the Netherlands, specializing in several disciplines of

public international law.

The author’s interest in academic work, sparked by the environmental legacy

of the second Gulf War, encouraged her to take up a European Community Fellowship at the London School of Economics and Political Science in 1994. She

undertook an advanced research project that examined the interface between humanitarian law and environmental law, and she pursued doctoral studies under

the supervision of Professor Christopher Greenwood. This paper is adapted from

her doctoral thesis, for which she was awarded the degree of Doctor of Philosophy

in 1998.

The author is currently employed in the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Hague,

where she is an advisor on international law under the direction of William

Fenrick, a retired Canadian navy commander. She maintains a keen interest in

publishing and has written several articles and papers reflecting on the work of

the ICTY and the impact of its jurisprudence.

Dr. Boelaert-Suominen is married to Jyrki Suominen. They have a son, Niclas.

She divides her time between the Netherlands and Belgium.