Practice Relating to Rule 44. Due Regard for the Natural Environment in Military Operations
Section B. The precautionary principle
Convention on Biodiversity
Paragraph 9 of the preamble to the 1992 Convention on Biodiversity states that “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat”.
Convention on Biological Diversity, adopted at the UN Conference on Environment and Development, Rio de Janeiro, 5 June 1992, preamble, para. 9.
Rio Declaration
Principle 15 of the 1992 Rio Declaration states:
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 or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Rio Declaration on Environment and Development, adopted at the United Nations Conference on Environment and Development, Rio de Janeiro, 13 June 1992, UN Doc. A/CONF.151/26 (Vol. I), 12 August 1992, endorsed by the UN General Assembly, Res. 47/190, 22 December 1992, Principle 15; see also Res. 47/191, 22 December 1992 and Res. 49/113, 19 December 1994.
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Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
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France
In its written statement submitted to the ICJ in the Nuclear Tests case (Request for an Examination of the Situation) in 1995, France argued that it was uncertain whether the precautionary principle had become a binding rule of international law. It went on to state that France does carry out an analysis of the impact of its activities on the environment, and described all the measures it took to ensure that the tests would not have a negative effect. It described these measures as being precautions that were in keeping with its obligations under international environmental law and therefore France did exercise sufficient diligence. However, it denied that the precautionary principle could have the effect of shifting the burden of proof as New Zealand asserted.
France, Written statement submitted to the ICJ, Nuclear Tests case (Request for an Examination of the Situation), 12 September 1995, Verbatim Record CR 95/20, pp. 56–62.
New Zealand
In its written statement submitted to the ICJ in the Nuclear Tests case (Request for an Examination of the Situation), New Zealand argued, in its request for an examination of the situation, that, under customary international law, a State is under an obligation to carry out an environmental impact assessment “in relation to any activity which is likely to cause significant damage to the environment, particularly where such effects are likely to be transboundary in nature”.
New Zealand, Written statement submitted to the ICJ, Nuclear Tests case (Request for an Examination of the Situation), undated, § 89.
New Zealand also referred to the “precautionary principle” as a “very widely accepted and operative principle of international law” and which has the effect that “in situations that may possibly be significantly environmentally threatening, the burden is placed upon the party seeking to carry out the conduct that could give rise to environmental damage to prove that that conduct will not lead to such a result”.
New Zealand, Written statement submitted to the ICJ, Nuclear Tests case (Request for an Examination of the Situation), undated, § 105.
New Zealand indicated that France had accepted this rule because it was contained in French law No. 95-101 of 1995 in the following terms:
The precautionary principle, according to which the absence of certainty, having regard to scientific and technical knowledge at the time, should not hold up the adoption of effective and proportionate measures with a view to avoiding a risk of serious and irreversible damage to the environment at an economically acceptable cost.
New Zealand, Written statement submitted to the ICJ, Nuclear Tests case (Request for an Examination of the Situation), undated, § 107.
Yugoslavia, Federal Republic of
On 14 August 2000, KFOR troops assisted UNMIK and UNMIK-Police in taking control of a lead-smelting plant in Zvecan, part of the Trepca mining complex in northern Kosovo. As a justification for the military action, the Special Representative of the UN Secretary-General for Kosovo explained that the Zvecan plant had been producing unacceptable levels of air pollution and therefore presented a serious threat to public health.
KFOR, Acting KFOR Spokesman, News Update, COMKFOR’s Zvecan Smelter Plant Closure Statement, Pristina, 14 August 2000, see website www.kforonline.com/news/updates/ nu_14aug00.htm.
In a press conference at the UN Headquarters, the chargé d’affaires a.i. of the Permanent Mission of the Federal Republic of Yugoslavia to the UN said that the Government of the Federal Republic of Yugoslavia rejected the Special Representative’s claim that KFOR was acting to prevent lead pollution. He maintained that daily air measurements corresponded to Yugoslav government regulations, adding that, even if high air pollution had been the problem, “it was not sufficient to justify such a crude use of military force”.
Yugoslavia, Federal Republic of, Press Conference by the Permanent Mission of Federal Republic of Yugoslavia to the UN, New York, 22 August 2000.
UN Economic Commission for Europe
The meeting of the UN Economic Commission for Europe (ECE) in 1990 issued the Bergen ECE Ministerial Declaration on Sustainable Development. Article 7 of this Declaration formulated the precautionary principle in these terms:
In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
UN Economic Commission for Europe, Bergen ECE Ministerial Declaration on Sustainable Development, 15 May 1990, Article 7.
UN Secretary-General (Special Representative for Kosovo)
On 14 August 2000, KFOR troops assisted UNMIK and UNMIK-Police in taking control of a lead-smelting plant in Zvecan, part of the Trepca mining complex in northern Kosovo. As a justification for the military action, the Special Representative of the UN Secretary-General for Kosovo explained that the Zvecan plant had been producing unacceptable levels of air pollution and therefore presented a serious threat to public health.
KFOR, Acting KFOR Spokesman, News Update, COMKFOR’s Zvecan Smelter Plant Closure Statement, Pristina, 14 August 2000, see website www.kforonline.com/news/updates/ nu_14aug00.htm.
In a press conference at the UN Headquarters, the chargé d’affaires a.i. of the Permanent Mission of the Federal Republic of Yugoslavia to the UN said that the Government of the Federal Republic of Yugoslavia rejected the Special Representative’s claim that KFOR was acting to prevent lead pollution. He maintained that daily air measurements corresponded to Yugoslav government regulations, adding that, even if high air pollution had been the problem, “it was not sufficient to justify such a crude use of military force”.
Yugoslavia, Federal Republic of, Press Conference by the Permanent Mission of Federal Republic of Yugoslavia to the UN, New York, 22 August 2000.
UN Environment Programme
In its report in 1996, the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, which was established by UNEP in 1994 within the purview of the Montevideo Programme II, provided a practical contribution to the work of the UN Compensation Commission, inter alia, by recommending the criteria for evaluating “environmental damage”. The Working Group examined four kinds of damages in respect of which claims for compensation were allowed:
a) Abatement and prevention of environmental damage (including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and international waters);
b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment;
c) Reasonable monitoring and assessment of the environmental damage for the purpose of evaluating and abating harm and restoring the environment; and
d) Reasonable monitoring of public health and performing medical screening for the purposes of investigation and combating increased health risks as a result of the environmental damage.
UNEP, Report of the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, adopted at the Third Meeting of the Working Group, London, 17 May 1996.
As to the first type of damages, the Working Group concluded that: “The methodology for determining the amount of compensation would be the costs actually incurred in taking such measures [to abate or prevent environmental damage].” It added that, although not expressly mentioned, “it would … be appropriate to infer a limitation on compensation to measures which themselves are reasonable, and to costs that are reasonable in amount”, while “in the light of the precautionary principle some latitude would be warranted in relation to costs incurred in an emergency situation requiring a prompt response in the face of limited information”.
UNEP, Report of the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, adopted at the Third Meeting of the Working Group, London, 17 May 1996, §§ 61 and 62.
As to the other type of damages, reference was also made by the Working Group to the precautionary principle as an element to be taken into due account for determining the “reasonableness” of the activities in question.
UNEP, Report of the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, adopted at the Third Meeting of the Working Group, London, 17 May 1996, §§ 65 and 73.
United Nations Compensation Commission
In June 2001, within the framework of the activities of the UNCC, the “F4” Panel of Commissioners submitted its first report to the Governing Council dealing with claims for losses resulting from environmental damage and the depletion of natural resources. The report addressed only the first instalment of “F4” claims, which included claims submitted by the governments of the Islamic Republic of Iran, Kuwait, Saudi Arabia, Syrian Arab Republic and Turkey for compensation for expenses resulting from monitoring and assessment activities undertaken or to be undertaken by the claimants to identify and evaluate environmental damage suffered as a result of Iraq’s invasion and occupation of Kuwait (“monitoring and assessment claims”). In particular, these activities related to damage from air pollution and oil pollution caused by the ignition of hundreds of oil wells and by the release of millions of barrels of oil into the sea by Iraqi forces in Kuwait.
UNCC, Governing Council, Report and Recommendations made by the Panel of Commissioners concerning the first instalment of F4 claims, UN Doc. S/AC.26/2001/16, 22 June 2001, p. 9, §§ 13–14.
In deciding whether expenses incurred for monitoring and assessment activities were compensable, the Panel declared that it had considered “whether there was evidence that the activity proposed or undertaken could produce information that might be helpful in identifying environmental damage and depletion of natural resources, or that could offer a useful basis for taking preventive or remedial measures”.
UNCC, Governing Council, UN Doc. S/AC.26/2001/16, Report and Recommendations made by the Panel of Commissioners concerning the first instalment of F4 claims, 22 June 2001, p. 15, § 35.s
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International Conference of the Red Cross and Red Crescent (1995)
The 26th International Conference of the Red Cross and Red Crescent in 1995 adopted a resolution on protection of the civilian population in period of armed conflict in which it called upon parties to conflict “to take all feasible precautions to avoid, in their military operations, all acts liable to destroy or damage water sources”.
26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Res. II, § F(b).
International Court of Justice
The ICJ’s order in the Nuclear Tests case (Request for an Examination of the Situation) in 1995 turned on procedural aspects and did not consider the merits of the arguments relating to the need for a prior assessment and the application of the precautionary principle. The order only made a reference in the most general terms to “obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment”.
ICJ, Nuclear Tests case (Request for an Examination of the Situation), Order, 22 September 1995, § 64.
International Court of Justice
In his dissenting opinion in the Nuclear Tests case (Request for an Examination of the Situation) in 1995, Judge Weeramantry referred to the precautionary principle as one “which is gaining increasing support as part of the international law of the environment” and the principle requiring an environmental impact assessment as “gathering strength and international acceptance”.
ICJ, Nuclear Tests case (Request for an Examination of the Situation), Dissenting Opinion of Judge Weeramantry, 22 September 1995, pp. 342 and 344.
International Court of Justice
In his dissenting opinion in the Nuclear Tests case (Request for an Examination of the Situation) in 1995, Judge Palmer stated:
87. … As the law now stands it is a matter of legal duty to first establish before undertaking an activity that the activity does not involve any unacceptable risk to the environment. …
…
91. What those principles of international law establish in my view are the following propositions:
…
(d) the norm involved in the precautionary principle has developed rapidly and may now be a principle of customary international law relating to the environment.
ICJ, Nuclear Tests case (Request for an Examination of the Situation), Dissenting Opinion of Judge Palmer, 22 September 1995, §§ 87 and 91.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
Targets for particular weapons and fire units shall be determined and assigned with the same precautions as to military objectives, specially taking into account the tactical result desired … and the destructive power of the ammunition used (… possible effects on the environment).
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 433.
ICRC
In 1993, in a report submitted to the UN General Assembly on the protection of the environment in times of armed conflict, the ICRC stated, with respect to the applicability of the precautionary principle to the protection of the environment in times of armed conflict:
This principle is an emerging, but generally recognized principle of international law. The object of the precautionary principle is to anticipate and prevent damage to the environment and to ensure that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason to postpone any measures to prevent such damage.
ICRC, Report on the protection of the environment in time of armed conflict submitted to the UN General Assembly, reprinted in Report of the UN Secretary-General on the protection of the environment in times of armed conflict, UN Doc. A/48/269, 29 July 1993, § 91.
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