Armed Conflicts and the Environment: Complementing the Laws of Armed Conflict with Human Rights Law and International Environmental Law

Description

The book rethinks the means of harmonization of prima facie norm conflicts in light of the multitude of international agreements across regimes. The methodology deployed in this book, which is referred to as complementation or complementary application, represents a novel approach by focusing on commonly shared objectives and a unifying ordre public transnational across fields of public international law that allow for a harmonization beyond traditional treaty interpretation. Fields of public international law, mainly the laws of armed conflict, international environmental law, and human rights law, apply simultaneously to questions regarding the environment and war. Such a coexistence challenges the unity of the international legal order, and it also challenges the means of harmonization across fields of public international law. However, eventually, the co-existence of several fields of public international law can result in a refinement of international law and enhanced legal protection. Diversification can also contribute to clarification or normative intensification in areas of parallel application of various fields and multilayered legal protection, demonstrating a counter-option to fragmentation. Foreword by Marja Lehto Acknowledgments Contents Chapter 1: Introduction 1.1 Outline and Scope of the Study 1.2 Methodology 1.3 Commonly Shared Objectives and a Unifying Ordre Public Transnational: Identifying Incentives for Environmental Protection ... 1.4 Concluding Remarks References Chapter 2: The Environment and the Laws of Armed Conflict 2.1 Basic Characteristics of the Laws of Armed Conflict 2.1.1 Anthropocentrism 2.1.2 Cardinal Principles of the Laws of Armed Conflict 2.1.3 Principle of ``Simplicity´´ 2.1.4 ``Radiating´´ Effect of the Laws of Armed Conflict: No Strict Separation Between Peacetime and Wartime Law 2.1.5 No Reciprocity Between State Parties but Third-Party Protection 2.1.6 Compliance Mechanisms 2.1.7 Summary 2.2 Environmental Protection Based on Treaties 2.2.1 The First Additional Protocol to the Geneva Convention 2.2.1.1 Specific Protection of the Environment Based on AP I 2.2.1.2 Implicit Protection of the Environment Based on AP I 2.2.1.3 Summary 2.2.2 The ENMOD Convention 2.2.3 The 1899/1907 Hague Regulations and the Geneva Conventions 2.2.4 Summary 2.3 Environmental Protection Based on Customary Law 2.3.1 Rule 43: The Application of the General Principles on the Conduct of Hostilities to the ``Natural Environment´´ 2.3.1.1 Principle of Distinction 2.3.1.2 Destruction of Property Not Justified by Military Necessity 2.3.1.3 Principle of Proportionality 2.3.1.4 Other Rules Affording Protection to the ``Natural Environment´´ 2.3.1.5 Summary 2.3.2 Rule 44: Due Regard for the ``Natural Environment´´ 2.3.2.1 Obligation to Take Due Regard 2.3.2.2 Obligation to Take All Feasible Precautions and the Precautionary Approach 2.3.2.3 Continued Application of International Environmental Law 2.3.2.4 Summary 2.3.3 Rule 45: Causing Serious Damage to the ``Natural Environment´´ 2.3.4 Summary 2.4 Non-Binding Documents and Other Initiatives 2.4.1 International Committee of the Red Cross and Environmental Protection 2.4.2 The United Nations and Environmental Protection During Armed Conflict 2.4.2.1 UN General Assembly and Other International Declarations 2.4.2.2 UN Security Council 2.4.2.3 UN Environment Programme 2.4.2.4 UN International Law Commission 2.4.3 Other Initiatives and Environmental Protection 2.4.4 Summary 2.5 Environmental Protection and Non-International Armed Conflicts 2.6 The Rome Statute: Closely Linked to the Laws of Armed Conflict 2.7 Conclusions and Appraisal References Chapter 3: The Environment and Human Rights Law 3.1 Basic Characteristics of Human Rights Law 3.1.1 Anthropocentrism 3.1.2 The Role of the Individual 3.1.3 Regional and Universal Treaties 3.1.4 Compliance Mechanisms 3.1.5 Dynamic Interpretation of Human Rights 3.1.6 Third States and Extraterritorial Application 3.1.7 Derogations from Human Rights Treaties 3.1.8 Continued Application of Human Rights During Armed Conflict 3.1.9 Summary 3.2 Human Rights Protecting the Environment 3.2.1 Right to the Environment 3.2.1.1 African Human Rights System 3.2.1.2 Asian, Pacific and Arab Human Rights Systems 3.2.1.3 Inter-American Human Rights System 3.2.1.4 European Human Rights System 3.2.1.5 Universal Protection 3.2.1.6 Summary 3.2.2 Right to Water 3.2.2.1 General Comment No. 15 of CESCR 3.2.2.2 Other Regional and Universal Legal Bases 3.2.2.3 Summary 3.2.3 Right to Life 3.2.3.1 African Human Rights System 3.2.3.2 Inter-American Human Rights System 3.2.3.3 European Human Rights System 3.2.3.4 Universal Human Rights 3.2.3.5 Summary 3.2.4 Right to Property and Indigenous Peoples´ Rights 3.2.5 Right to Private and Family Life 3.3 Conclusions and Appraisal References Chapter 4: The Environment and International Environmental Law 4.1 Basic Characteristics 4.1.1 From Anthropocentrism to Ecocentrism? 4.1.2 Evolution of International Environmental Law 4.1.3 Multilateral Environmental Agreements 4.1.3.1 Distinctive Legal Processes 4.1.3.2 Distinctive Treaty Institutions 4.1.3.3 Distinctive Compliance Systems 4.1.3.4 Summary 4.1.4 Fragmentation of International Environmental Law 4.1.5 An Effect-Based Approach to Law 4.1.6 Regional and Universal Agreements 4.1.7 Third States and Extraterritorial Effects 4.1.8 Continued Application of Multilateral Environmental Agreements During Armed Conflict 4.1.9 Summary 4.2 Selected Multilateral Environmental Agreements 4.2.1 Ramsar Convention 4.2.2 World Heritage Convention 4.2.3 Convention on Biodiversity 4.3 Conclusions and Appraisal References Chapter 5: Complementing the Laws of Armed Conflict with Human Rights Law and International Environmental Law 5.1 Three Incompatible Fields of Public International Law? Differences Between the Laws of Armed Conflict, Human Rights Law an... 5.1.1 Anthropocentrism Versus Ecocentrism? 5.1.2 Role and Impact of Individuals? 5.1.3 Compliance Mechanisms? 5.1.4 Different Degrees of Dynamism Within the Laws? 5.1.5 Principle of Simplicity? 5.1.6 Preliminary Conclusions 5.2 Parallels and Similarities Between the Laws of Armed Conflict, Human Rights Law and International Environmental Law 5.2.1 Protection for and from the Environment 5.2.2 Scope of Application 5.2.3 Reciprocity 5.2.4 Extraterritorial Application and Extraterritorial Effects of Treaties 5.2.5 Preliminary Conclusions 5.3 Gaps in the Laws of Armed Conflict and Prospects of Refinement 5.4 Complementing the Laws of Armed Conflict with Human Rights Law and International Environmental Law 5.4.1 Definition of ``Natural Environment´´ 5.4.1.1 ``Natural Environment´´ Pursuant to Articles 35(3) and 55(1) AP I 5.4.1.2 Environment as Defined by Selected Multilateral Environmental Agreements 5.4.1.3 Environment as Defined by Human Rights Law 5.4.1.4 Clarifying Function Based on Art. 31(3) lit. c VCLT 5.4.2 Multilayered Protection of Protected Sites and Zones/Areas 5.4.2.1 Protected Sites and Zones Based on the Laws of Armed Conflict 5.4.2.2 Protected Zones Based on Human Rights Treaties 5.4.2.3 Protected Sites and Areas Based on a Selection of Multilateral Environmental Agreements 5.4.2.4 Intensifying Function Based on Commonly Shared Objectives and a Unifying Ordre Public Transnational Across Regimes 5.4.3 Preliminary Conclusions References Chapter 6: General Conclusions References Index