A New Shield for the Environment: Peacetime Treaties as Legal Restraints of Wartime Damage

There exist today a vast number of peacetime treaties for the protection of the environment. Their primary advantages are that they are not limited to the indirect protection of the environment and that they protect nearly all components of the environment without restriction to territorial borders. It is therefore valuable for the present and future preservation of the environment in armed conflicts to examine the question of to what extent peacetime environmental treaties bind belligerent states. This is the focus of this article. To answer this question one has first to examine which peacetime environmental treaties bind warring states in general. The problem is that a special rule of customary law has not developed yet (see under the first main heading below), and even the general rules concerning the effects of war on treaties are only to a very limited extent directly applicable to environmental treaties (second main heading). However, it is shown below that a solution has to be found by the analogous application of the existing rules (third main heading): at least environmental treaties which aim to serve the interests of the state community as a whole, as treaties for the protection of areas beyond national jurisdiction and of so-called common goods, remain in force for belligerent states. The argument that the laws of war prevail over peacetime environmental laws as lex specialis is no longer valid. The last step of the analysis will be to examine to what extent these environmental treaties bind belligerent states (fourth main heading below). It will be demonstrated that the doctrine of state necessity offers a useful way of balancing the interests of the belligerents with the interests of the state community as a whole to protect the environment during war.