Volume 03 Issue 08-2023
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(ISSN
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ABSTRACT
This article discusses topical issues and the content of international legal protection of the natural environment and
cultural heritage during armed conflicts. The article subjected to a legal analysis of the current international legal acts
containing norms on the protection of the natural environment and cultural heritage during armed conflicts and, on
the basis of this, an objective analysis of the existing legal conflicts in these areas is given. The article contains the
author’s conclusions and proposals for improving the international legal protection of the natural environment and
cultural heritage during armed conflicts.
KEYWORDS
Environment, natural environment, cultural heritage, cultural values, habitat, protocol, additional protocol,
convention, ICRC, The Hague.
INTRODUCTION
Modern international law is developing in several
directions. First of all, the emergence of new branches,
such as international cultural law, international human
rights law, international environmental law, the second
trend is the increasing connection and intertwining
between different branches of international law. In this
regard, domestic international lawyer B.E. Ochilov
notes that “the development of the law of armed
conflict in the last 20 years proves that not only
persons, but also the environment fall within the
sphere of influence of the law of armed conflict” [1], as
well as objects of cultural heritage, we add. As F.
Antoine notes, international legal environmental
protection is not only a separate branch of public
Research Article
INTERNATIONAL LEGAL PROTECTION OF THE ENVIRONMENT AND
OBJECTS OF CULTURAL HERITAGE (CULTURAL PROPERTY) DURING
ARMED CONFLICTS
Submission Date:
August 09, 2023,
Accepted Date:
August 14, 2023,
Published Date:
August 19, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue08-07
Nigorakhon Fayzullaeva
Doctor Of Philosophy (Phd) In Law Senior Lecturer At The University Of World Economy And Diplomacy,
Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 08-2023
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VOLUME
03
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08
Pages:
30-36
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OCLC
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Publisher:
Oscar Publishing Services
Servi
international law, in view of the complexity of
regulated legal relations, but is also an integral part of
the modern law of armed conflict [2].
The current state of our planet is cause for serious
concern, to say the least. As stated by Gro Harlem
Brundtland, former Prime Minister of Norway and
Chair of the International Commission on Environment
and Development, “we are living
in a historic period of
transition, when awareness of the conflict between
human activities and the natural environment is
becoming almost universal. [3].
The protection of the natural environment during
armed conflicts is guaranteed by Art. 55 and Art. 35 par
3 of Protocol I. This type of protection was first
proposed on 21 March 1972 at the ICRC-organized
Conference of Governmental Experts on the
Reaffirmation and Development of the Law of Armed
Conflict Applicable in Times of Armed Conflict.
The following versions of the articles were put up for
discussion:
"It is prohibited to use weapons, shells or other means
and methods of warfare that disturb the existing
conditions of life on Earth and worsen the ecological
situation".
"It is forbidden to use means and methods of warfare
that destroy the natural habitat of man." [4].
The International Red Cross and Red Crescent
Movement at about the same time also addressed this
problem. In particular, at the XXII International
Conference of the Red Cross it was
stated: “As for the
facilities necessary for the survival of the civilian
population, special importance was attached to the
protection of the natural
environment” [
5].
Although the proposal put forward by the ICRC at the
1974-1977 Diplomatic Conference did not contain any
provisions specifically aimed at protecting the natural
environment, many of the conditions it proposed
implied the careful management of natural resources,
especially those essential to the survival of the civilian
population.
Article 55 of Additional Protocol I was created on the
basis of this article, renumbered 48 bis and adopted by
consensus.
THE MAIN FINDINGS AND RESULTS
The second trend can be traced in the joint proposal
put forward by the delegations of the former three
socialist countries, Czechoslovakia, Hungary and the
GDR. This proposal did not focus on the survival and
well-being of the civilian population, but on protecting
the natural environment by limiting the methods and
means of warfare used. The second trend, which was a
direct consequence of the enormous damage done to
the environment during the Vietnam War, led to the
adoption of article 35, paragraph 3, of Protocol I,
entitled “Basic norms”.
One of the most difficult issues has been the
establishment of a critical threshold for determining
serious environmental damage.
Although Article 35 par. 3 of Article 35 and Article 55(1)
of Protocol I have different purposes, the consistency
of their prohibition is ensured by the use of a common
criterion of “extensive, long
-term
and serious harm”.
It is interesting to compare this wording with the
wording of Article 1(1) of the ENMOD Convention*,
which refers to means of “impact on the natural
environment that have widespread, long-lasting or
serious consequences”.
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*The use of different alliances - and/or - in the two
instruments means that while Protocol I prohibits only
methods or means of warfare that simultaneously
violate all three conditions mentioned above, the
ENMOD Convention prohibits all those methods and
means that violate at least one of these conditions.
Therefore, the Convention has a broader scope of
application.
In addition, the Protocol focuses on the protection of
the natural environment regardless of the weapons
used, while the Convention is specifically aimed at
preventing the hostile use of means to affect the
natural environment.
It should also be noted that the prohibition contained
in the Protocol applies only during armed conflict,
while the provisions of the Convention apply both
during armed conflict and in peacetime.
In addition, the two documents have different
understandings of some terms. According to the
agreement on the interpretation of the text of the
ENMOD Convention, the term “broad” should be
understood as extending to the territory of several
hundred square kilometers, the term “long
-
term”
means a period of several months (about three), and
the term “serious” means a significant disruption of
the normal course of human life, significant damage to
natural economic resources or other assets [6].
It is much more difficult to define precisely the terms
used in the Protocol, since its provisions aim to protect
the natural environment in general and are therefore
less specific. However, it is universally recognized that
“extensive” means a
n area of less than a few hundred
square kilometers, “long
-
term” means ten years or
more, and “severe” means "damage which, over a long
period of time, endangers the survival of the civilian
population or is likely to cause serious health
problems”.
However, the two documents should not be seen as
addressing the same issues, but rather as
complementary, with one referring to geophysical
warfare and the other to environmental warfare.
Additional Protocol I.
Additional Protocol I [7] contains a number of
provisions that, although not primarily aimed at
preventing
attacks
directly
on
the
natural
environment, nevertheless provide indirect protection
of the natural environment in various ways.
Article 51, for example, prohibits indiscriminate attacks
(paras. 4 an
d 5), attacks that “employ methods or
means of warfare the effects of which cannot be
limited as required under this Protocol” (para. 4c), and
bombing attacks that “treat a series of distinctly
separate and distinguishable military objectives as a
single m
ilitary objective” (para. 5a). The Article also
reaffirms the principle of proportionality (para. 5b).
Under Article 52, which deals with the general
protection of civilian objects, attacks must be strictly
limited to military objectives (paras. 1 and 2).
Article 54 provides for the protection of objects
necessary for the survival of the civilian population,
such as “food supplies, food
-producing agricultural
areas, crops, livestock, drinking water facilities and
supplies, and irrigation facilities” (para.
2).
Article 56 refers to the protection of installations and
structures containing dangerous forces, namely
“dams, dikes and nuclear power plants ...”.
Volume 03 Issue 08-2023
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(2023:
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Publisher:
Oscar Publishing Services
Servi
Article 57 lists a number of precautions to be taken
during military operations as well as during their
preparation.
Article 58 sets out various precautions to be taken by
belligerents on their own territory in order, among
other things, to ensure the protection of civilian
objects.
Additional Protocol II [7, P.297-309].
Commission III had proposed many provisions similar
to those contained in Protocol I, but they had not
subsequently been adopted by the Plenary. The desire
to simplify the text, which guided the authors of
Protocol II, explains the fact that
Article 14 (“Protection of facilities necessary f
or the
survival of the civilian population”) and Article 15
(“Protection of installations and structures containing
dangerous forces”) are the only ones that contain
provisions relating to indirect protection of the
environment.
Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons Which May Be
Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects (October 10, 1980) and its three
Protocols [7, C.196-214].
Additional Protocols I and II of 1977 prohibit the
indiscriminate use of weapons, but not the weapons
themselves; nor do they specify which weapons are
covered by this prohibition. In an attempt to resolve
this problem, the ICRC held two conferences of
experts, one in Lucerne in 1974 and one in Lugano in
1976. In addition, Resolution 22 of the Diplomatic
Conference recommended that a conference of
governmental experts on these issues be held no later
than 1979.
In
implementation
of
this
recommendation,
conferences were held in September 1979 and
September 1980 and led to the adoption of the
Convention on Prohibitions or Restrictions on the Use
of Nuclear Weapons on October 10, 1980. The
Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons Which May Be
Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects and its three Protocols: Protocol
I on Non-Detectable Fragments, Protocol II on Mines,
Booby Traps and Other Devices and Protocol III on
Incendiary Weapons.
With regard to environmental damage caused by the
use of various methods and means of warfare, it is
regrettable that the 1980 Convention is silent on
explosive munitions [8].
Protocol I on Non-Detectable Fragments has virtually
no relevance to the issue of environmental damage
caused by the use of certain weapons.
Protocol II on mines, booby traps and other devices
prohibits or restricts the use of these weapons, which
were used extensively during the Second World War,
the Indochina War, the Arab-Israeli Wars and, more
recently, in Afghanistan.
While the use of these weapons may not cause
widespread, long-lasting and severe damage to the
natural environment, they do have the potential to
cause some form of damage. In addition to causing
accidents that kill or injure people and animals, the use
of these weapons significantly impedes the recovery of
agriculture and other economic sectors, as well as
spoiling the appearance of the area by leaving craters
in the ground and the ruined hulks of mined vehicles,
barbed wire and other signs of war in large areas.
Volume 03 Issue 08-2023
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Publisher:
Oscar Publishing Services
Servi
Protocol III on Prohibitions or Restrictions on the Use
of Incendiary Weapons is of particular interest.
With regard to environmental damage, the 1973 United
Nations report on the use of incendiary weapons
concludes: “We do not know enough about the effects
that such extensive fires may cause in such
circumstances, but it is feared that they are
accompanied by irreversible ecological changes with
serious
long-term
consequences
totally
incommensurate with the results intended. Although
we are unable to predict the severity of this threat, it is
disturbing to see the massive use of incendiary
munitions in rural areas” [9].
Do the existing legal norms provide effective and
sufficient environmental protection in case of armed
conflict?
Some authors, such as G. Herceg, beli
eve that “all
types of environmental warfare are already
prohibited” [10]. However, some conflicts, such as the
Iran-Iraq war, the Persian Gulf War and the bombing of
Yugoslavia have clearly shown that the existing
provisions on the protection of the natural
environment are not free from various shortcomings in
terms of their practical application.
Both the environment and other peaceful objects,
especially
cultural
property,
require
special
international legal protection in times of armed
conflict.
The Convention for the Protection of Cultural Property
in the Event of Armed Conflict, adopted at an
international conference in The Hague on May 14, 1954.
[11], provides for the following measures:
a) prohibition of the use of these values, structures for
their protection, as well as the immediately adjacent
areas for purposes that may lead to the destruction or
damage of these values in the event of armed conflict;
b) the prohibition, prevention and suppression of any
act of theft, robbery or misappropriation of cultural
property in any form, as well as any act of vandalism
against such property;
c) prohibition of requisition and any repressive
measures against cultural property.
As rightly noted by I.E. Martynenko, “while giving high
marks to the legal technique used in the development
of the 1954 Convention for the Protection of Cultural
Property in the Event of Armed Conflict, nevertheless,
it should be noted that there is no proper mechanism
for its observance, as evidenced by violations of this
important international legal instrument in the course
of the ongoing and ongoing armed conflicts” [12].
The First Additional Protocol of 1977 therefore
prohibits any hostile act directed against those
historical monuments, works of art or places of
worship that constitute the cultural or spiritual
heritage of peoples. The Protocol supplements the
system of guarantees for the protection of cultural
property introduced by the 1954 Hague Convention.
The most important cultural property is taken under
special protection and included in the International
Register of Cultural Property, which is maintained by
the Director-General of UNESCO; a copy of the Register
is kept by the Secretary-General of the United Nations
and by each party to a military conflict. Once inscribed
on the International Register, the property is granted
military immunity and the belligerents are obliged to
refrain from any hostile act directed against it.
Cultural property under special protection during
armed conflicts must be marked with a distinctive
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emblem. The 1970 Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export
and Transfer of Ownership of Cultural Property lists
acts resulting directly or indirectly from the occupation
of a country by a foreign power.
With regard to the protection of cultural property
during armed conflicts, it is obvious that UNESCO alone
cannot guarantee compliance with the provisions of
the 1954 Convention. We believe that it would be
preferable to entrust not only the Director-General of
UNESCO but also the Secretary-General of the United
Nations with this responsibility. The general and special
protection of cultural property enshrined in the 1954
Convention is not supported by adequate provisions
on liability in case of violation of the provisions of the
Convention.
Ideally, the natural environment should be fully and
unconditionally protected. However, this will not
happen until awareness of the value of our natural
heritage becomes truly universal [13].
CONCLUSION
We therefore believe that the best way to enhance
environmental protection is through more effective
measures to enforce already existing agreements, as
well as by extending the scope of some provisions by
"demilitarizing", for example, protected natural areas.
This would represent a significant achievement in the
field of international political-legal protection of the
environment during armed conflicts.
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Geneva, The Hague, ICRC, Martinus Nijhoff
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