Research handbook on international environmental law
Cheltenham [etc.] : E. Elgar, 2010
Bibliographie : p. 603-604. - Photocopies
In the past 30 years since the adoption of the Protocols, States have continuously added to their humanitarian law commitments in negotiating limitations or prohibitions on certain weapons and in creating an International Criminal Court to oversee compliance and prosecute breaches. Furthermore, the Customary Humanitarian Law Study by Henckaerts and Doswald-Beck (2005) may work to garner even wider support and acceptance of core humanitarian law norms, including those designed to protect the environment during armed conflict. Environmental protections in war are undoubtedly predicated on a balance between the demands of military necessity to attack a particular environmental component and the principle of humanity in ensuring a viable environment for civilians- both during and beyond the period of conflict. International humanitarian law clearly demonstrates a strong acceptance by States of wartime obligations of environmental protection, but 30 years after adoption, the threshold at which that protection applies remains vague and rather meaningless. The Study is a valuable tool in provoking State comment and scholarly dialogue, and may have a norm-crystallizing effect. However, as possibly the most important comment on the environmental provisions since their inception, the Study falls short in a number of ways. Most importantly, while there is no objection to the application to the environment of the foundational humanitarian principles, in abstracting customary norms (Rule 43), the Study serves to confuse and misquote existing provisions. The authors of the Study go even further in Rule 44 by recognizing as applicable in war a principle of environmental law origin without adequate evidence in either area of law as to its acceptance by States. Leaving the Study to one side, developments in humanitarian law have also been witnessed for certain environmentally destructive weapons. Many governments are taking positive steps to eradicate the more controversial models of cluster weapons from their arsenals, and are abandoning or choosing alternatives to depleted uranium weapons. Finally, looking to the future, while humanitarian laws ensure a degree of protection to environmental resources during armed conflict, it is lamentable that it is the scarcity of such environmental resource that is often at the heart of many conflicts. Lamentably more so is the fact that most of these resource conflicts will be extremely localized or possibly civil wars, which are regulated by the least sophisticated body of law.
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