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.

Keywords

Main Subjects

References

  • Books

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    ج) اسناد و رویه قضایی

    • Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques (ENMOD Convention), 1976.
    • Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 1972.
    • ICRC commentary (1987) to Additional Protocol I.
    • ICRC commentary to the Geneva Convention I,
    • ICRC, ‘Protection of the Environment in Time of Armed Conflict: Report Submitted by the ICRC to the 48th Session of the United Nations General Assembly’, 1993.
    • ILC Report, A/72/10, 2017.
    • ILC, Report of the International Law Commission on the Work of the Seventy-First Session, August 2019.
    • ILC, Second Report of the Special Rapporteur on Protection of the Environment in Relation to Armed Conflicts by Marja Lehto, March 2019.
    • ILC, Second Report of the Special Rapporteur on the Protection of the Environment in Relation to Armed Conflicts by M. G. Jacobsson, May 2015.
    • International Union for Conservation of Nature, A Marten’s Clause for environmental protection, World Conservation Congress, October 2001, Resolution 2.97.
    • Legality of the Use or Threat of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996.
    • Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
    • Rome Statute of the International Criminal Court, 17 July 1998.
    • Wood, Micheal, First Report on Formation and Evidence of Customary International Law, May 2013.
    • World Charter of Nature, 1982.
    • Yearbook of international law commission, 1994, Vol.II; YILC, 2008, Vol.II.

     

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History

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

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