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Florida Journal of International Law

John Alan Cohan

Abstract

This Article examines the current norms and standards that exist in international law that address environmental damage occurring in time of war. To understand the complexity of the problem, I first address the theoretical underpinning of environmental protection—comparing the anthropocentric view and the competing view that the environment ought to be protected because it has intrinsic value. These competing perspectives help fame the issue in the later examination of this Article of relevant international conventions pertaining to the environment in time of war. Next, this Article discusses the current laws of armed conflict, as military planners must inevitably weigh the quantum of environmental damages likely to be occasioned from given missions, and in doing so refer to a traditional, yet evolving, set of norms embodied in customary international law. I will then provide an overview of international conventions that deal with various types of harms that are associated with war, and which indirectly pertain to the environment. Then I will discuss the two principal environment-specific conventions that have emerged in modern times—Protocol I and the Environmental Modification Convention of 1977 (ENMOD)—and analyze their strengths and weaknesses, concluding that the relevant law is difficult to apply in practice, is definitionally flawed, and lacks internal coherence. Moreover, and equally discouraging, these provisions tend to regard the environment as overriding human values so that, in certain scenarios, literally applied, these conventions would sacrifice human lives, property, and infrastructure so as to avoid environmental harms. I will then turn to an area of international law that I believe is sorely lacking, a theoretical framework for the process of war termination and restoration of the environment. I will conclude by providing suggestions on how the law on the subject can be enhanced to provide a more thorough protection of the environment in time of war.

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