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| II. | Substantive International Law - Second Part |
| 14. | INTERNATIONAL ENVIRONMENTAL LAW |
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Legality of the Threat or Use
of Nuclear Weapons
Advisory Opinion of 8 July 1996
I.C.J. Reports 1996, p. 226
[pp. 241-243] 27. In both their written and oral statements, some
States furthermore argued that any use of nuclear weapons would be unlawful by
reference to existing norms relating to the safeguarding and protection of the
environment, in view of their essential importance.
Specific references were made to various existing international treaties and
instruments. These included Additional Protocol I of 1977 to the Geneva
Conventions of 1949, Article 35, paragraph 3, of which prohibits the employment
of "methods or means of warfare which are intended, or may be expected, to
cause widespread, long-term and severe damage to the natural environment";
and the Convention of 18 May 1977 on the Prohibition of Military or Any Other
Hostile Use of Environmental Modification Techniques, which prohibits the use of
weapons which have "widespread, long-lasting or severe effects" on the
environment (Art. 1). Also cited were Principle 21 of the Stockholm Declaration
of 1972 and Principle 2 of the Rio Declaration of 1992 which express the common
conviction of the States concerned that they have a duty
"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".
These instruments and other provisions relating to the protection and
safeguarding of the environment were said to apply at all times, in war as well
as in peace, and it was contended that they would be violated by the use of
nuclear weapons whose consequences would be widespread and would have
transboundary effects.
28. Other States questioned the binding legal quality of these precepts of
environmental law; or, in the context of the Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Techniques,
denied that it was concerned at all with the use of nuclear weapons in
hostilities; or, in the case of Additional Protocol 1, denied that they were
generally bound by its terms, or recalled that they had reserved their position
in respect of Article 35, paragraph 3, thereof.
It was also argued by some States that the principal purpose of
environmental treaties and norms was the protection of the environment in time
of peace. It was said that those treaties made no mention of nuclear weapons. It
was also pointed out that warfare in general, and nuclear warfare in particular,
were not mentioned in their texts and that it would be destabilizing to the rule
of law and to confidence in international negotiations if those treaties were
now interpreted in such a way as to prohibit the use of nuclear weapons.
29. The Court recognizes that the environment is under daily threat and that
the use of nuclear weapons could constitute a catastrophe for the environment.
The Court also recognizes 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. 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.
30. However, the Court is of the view that the issue is not whether the
treaties relating to the protection of the environment are or are 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.
The Court does not consider that the treaties in question could have
intended to deprive a State of the exercise of its right of self-defence under
international law because of its obligations to protect the environment.
Nonetheless, 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.
This approach is supported, indeed, by the terms of Principle 24 of the Rio
Declaration, which provides that:
"Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary."
31. The Court notes furthermore that Articles 35, paragraph 3, and 55 of
Additional Protocol I provide additional protection for the environment. Taken
together, these provisions embody a general obligation to protect the natural
environment against widespread, long-term and severe environmental damage; the
prohibition of methods and means of warfare which are intended, or may be
expected, to cause such damage; and the prohibition of attacks against the
natural environment by way of reprisals.
These are powerful constraints for all the States having subscribed to these
provisions.
32. General Assembly resolution 47/37 of 25 November 1992 on the "Protection
of the Environment in Times of Armed Conflict" is also of interest in this
context. It affirms the general view according to which environmental
considerations constitute one of the elements to be taken into account in the
implementation of the principles of the law applicable in armed conflict: it
states that "destruction of the environment, not justified by military
necessity and carried out wantonly, is clearly contrary to existing
international law". Addressing the reality that certain instruments are not
yet binding on all States, the General Assembly in this resolution "[a]ppeals
to all States that have not yet done so to consider becoming parties to the
relevant international conventions".
In its recent Order in the 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 (New Zealand v. France) Case, the Court stated
that its conclusion was "without prejudice to the obligations of States to
respect and protect the natural environment" (Order of 22 September
1995, I.C.J. Reports 1995, p. 306, para. 64). Although that
statement was made in the context of nuclear testing, it naturally also applies
to the actual use of nuclear weapons in armed conflict.
[pp. 502-504 D.O. Weeramantry] Environmental law incorporates a
number of principles which are violated by nuclear weapons. The
principle of intergenerational equity and the common heritage principle have
already been discussed. Other principles of environmental law, which this
request enables the Court to recognize and use in reaching its conclusions, are
the precautionary principle, the principle of trusteeship of earth resources,
the principle that the burden of proving safety lies upon the author of the act
complained of, and, the "polluter pays principle", placing on the
author of environmental damage the burden of making adequate reparation to those
affected1. There have been juristic efforts in recent times to formulate what
have been described as "principles of ecological security" - a process
of norm creation and codification of environmental law which has developed under
the stress of the need to protect human civilization from the threat of
self-destruction.
. . .
These principles of environmental law thus do not depend for their validity
on treaty provisions. They are part of customary international They are part of
the sine qua non for human survival.
[pp. 505-506 D.O. Weeramantry] The basic principle in this regard is spelt out by Article, 35 (3) of the 1977 Additional Protocol I to the Geneva Convention in terms prohibiting
Article 55 prohibits"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 use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population".
The question is not whether nuclear weapons were or were not intended to be covered by these formulations. It is sufficient to read them as stating undisputed principles of customary international law. To consider that these general principles are not explicit enough to cover nuclear weapons, or that nuclear weapons were designedly left unmentioned and are therefore not covered, or even that there was a clear understanding that these provisions were not intended to cover nuclear weapons, is to emphasize the incongruity of prohibiting lesser weapons of environmental damage, while leaving intact the infinitely greater agency of causing the very damage which it was the rationale of the treaty to prevent.
If there are general duties arising under customary international law, it clearly matters not that the various environmental agreements do not specifically refer to damage by nuclear weapons. The same principles apply whether we deal with belching furnaces, leaking reactors or explosive weapons. The mere circumstance that coal furnaces or reactors are not specifically mentioned in environmental treaties cannot lead to the conclusion that they are exempt from the incontrovertible and well-established standards and principles laid down therein.
Another approach to the applicability of environmental law to the matter
before the Court is through the principle of good neighbourliness, which is both
impliedly and expressly written into the United Nations Charter. This principle
is one of the bases of modern international law, which has seen the demise of
the principle that sovereign States could pursue their own interests in splendid
isolation from each other. A world. order in which every sovereign State depends
on the same global environment generates a mutual interdependence which can only
be implemented by co-operation and good neighbourliness.
The United Nations Charter spells this out as "the general principle
of good-neighbourliness, due account being taken of the interests and
well-being of the rest of the world, in social, economic, and commercial matters"
(Art. 74). A course of action that can destroy the global environment will take
to its destruction not only the environment, but the social, economic and
commercial interests that cannot exist apart from that environment. The
Charter's express recognition of such a general duty of good neighbourliness
makes this an essential part of international law.
This Court, from the very commencement of its jurisprudence, has supported this principle by spelling out the duty of every State not to allow knowingly its territory to be used for acts contrary to the rights of other States" (Corfu Channel, I.C.J. Reports 1949, p. 22).
| 1 | See the references to these principles in my dissenting opinion in 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 (New Zealand v. France) Case, I.C.J. Reports 1995, pp. 339-347. |
