The Martens Environmental Clause and Protecting the Environment During Armed Conflicts; with an emphasis on the ILC Draft Principles of 2019

Document Type : Original Article

Author

Assistant Professor, Law Department, Faculty of Humanities and Social Sciences, University of Kurdistan

Abstract

The environment has become a silent victim of armed conflicts around the world. Armed conflict, for whatever reason or justification, causes significant damages to the environment. In this regard, international humanitarian law has protected the environment in a few of its provisions. These provisions which is limited to damages by widespread, long-term and severe nature, are vague and provide only superficial protection. The provisions of international environmental law as well, as an alternative option, is less than adequate to protect the environment during armed conflict. Due to non-liquet in international law and to clarify the meaning and scope of environmental protection, in 2013, the International Law Commission (ILC) decided to include the topic in its programme of work. Six years later, the ILC adopted ‘‘draft principles on protection of the environment in relation to armed conflicts’’. In principle 12, the ILC setting out the Martens Clause in a new form. This inclusion in the draft principles, reflects the role and positon of the Martens Clause in protecting the environment in armed conflicts. The author, with a new direction for the Martens Clause, believes that implementing the Clause in this context will result in the emergence and facilitating the emergence of other principles and rules that can protect the environment during armed conflict.

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History

  • Receive Date: 01 December 2021
  • Revise Date: 12 April 2022
  • Accept Date: 06 May 2022

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