الجهود الدولية لحماية البيئة البحرية أثناء النزاعات المسلحة

Abstract

"The research problem: The study of this subject requires answers for two main problems: Chapter one focuses on the first problem and chapter two on the second. Problem I:  Are the rules on the protection of the marine environment in time of peace applicable as in time of war? Problem II:  Does the Humanitarian Law offer adequate protection to the marine environment during armed conflicts? The human right to a healthy marine environment is included in the third generation human rights. Therefore, this humanitarian right should be protected, and conventions and legislation should not go against it. The importance of this research is reflected in an analytic and critial study of different legal texts, including conventions on marine environment outside the framework of the International Humanitarian Law, such as the United Nations Convention on the Law of the Sea, and other conventions adopted within this scope, with the aim to illustrate its relation with marine environment protection during armed conflicts. The study includes also conventions dealing directly with this topic such as Geneva Convention and The Hague convention, or indirectly, as it is the case for the First Protocol of the 1977 Geneva convention , and the (ENMOD Convention) of 1976, in order to find out how these conventions dealt with rules of marine environment protection during armed conflicts, and their level of adequacy which determines if they need to be completed by other conventions, or rather acquire more efficiency, so that they will be fully respected. On the other hand, we’ll deal with the international responsibility for violations of rules on marine environment protection, to determine their level of efficiency. Harm to Marine environment is a threat to life, since it affects all environments and all living beings. Firstly, we dealt with the protection undertaken by different specialized conventions focusing on the protection of marine environment against oil or nuclear pollution caused by ships and waists, besides Part XXII of the UNLOS on the protection of marine environment, as well as the significant role of the UNO and its relevant agencies with respect to the strengthening and promoting the rules of International Law in this scope. We found it difficult, if not impossible to apply the same provisions of conventions on marine environment protection in general, in time of armed conflicts, because they are mandatory only for member parties according to the general principle of International Law “The Relative Effect of Treaties”. In addition, much of these conventions didn’t include military vessels and ships in its provisions. Thus, a many of these conventions don’t take in consideration special situations and particular circumstances during armed marine conflicts, and the requirements for marine protection in such cases. With regard to the 1982 UNCLOS, notwithstanding the provisions related to the protection of marine environment against pollution, we realize that all the provisions relevant to marine environment cannot be easily applied in times of war. It doesn’t take into account the special featureof armed conflicts. Furthermore, there are no real links between the UNCLOS rules on marine environment protection and the Law of armed conflicts. Secondly, we have referred to the importance given by the International Humanitarian Law to the protection of marine environment in times of armed conflicts. This branch of the International Law emphasized, through its primary principles and conventional rules, the protection of marine environments in war time, such as the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) and the Additional Protocol of 1977, annexed to the 1949Geneva Convention, which deals indirectly with the protection of marine environment. However, these rules are not clear enough (particularly rules 35 and 55 of the second Additional Protocol), since they don’t guarantee enough protection for the marine environment, particularly in time of armed conflicts. This conclusion may be seen as an answer for the problem pointed out in this chapter in relation with the adequate protection afforded by the Humanitarian Law in war times.parallel, the significant efforts deployed by States, Committees and institutions interested in this topic, resulted in a conventional project called The San Remo Manual on the international law applicable to armed conflicts at sea. We refer also to the great efforts of the International Committee of the Red Cross by holding meetings with experts of International Law and subject matter specialists, and regular conferences as well. In the same context, we refer to the contribution of different means of disseminating information and spreading the International humanitarian Law, as much as possible, especially among political and military officials. With the aim to make the rules of Humanitarian International Law more effective, bodies responsible for monitoring compliance with their application, were established. But they almost play no role, except the cooperation mechanism with the UNO to enforce the rules on the protection of marine environment in times of armed conflicts. In our study of the international liability for violations of protection rules in Humanitarian Law, we noted that the international liability for environmental damage is one of the principles of the International Humanitarian Law. But this principle is facing difficulties and obstacles in terms of implementation, which may affect the liability provided for in humanitarian conventions. In the light of what we have studied, we suggest the following: 1. When elaborating conventions on the protection of marine environment, mandatory provisions on their application in time of armed conflicts should be included. Therefore, there is a need to reconsider the ruleon the protection of marine environnent in peace time, contained in several traities and stating that they should be suspended in war time. In addition to that, many conventions conatain rules and provisions that can be applied in war time. 2. The International Law shouldn’t be limited to The San Remo Manual as an international charter or a draft convention which includes rules applied in time of armed conflicts at sea. An international convention should be prepared, dealing directly and clearly with the protection of marine environment in times of armed conflicts. 3. The criteria of marine environment harm should be less strict. In articles 33 and 35, it is stated that the harm should be widespread for a long time.Hence, environmental harm which is not widespread is not considered as affecting marine environment. 4. The principle of anticipated environmental harm needs to be considered, in order to protect marine environment against harm caused by the use of certain military equipment. There is a necessity to make parties to armed conflicts and military leaders aware of this principle by spreading it on a larger scale. Marine environment harm can be avoided only through international awareness and the collaboration, on the national or international level, of different Sates, associations, committees and institutions interested in this issue, and by strengthening the protection of marine environment in time of armed conflicts. 5. As a representative of the international community, the United Nations should clarify and ban the war means and methods that harm marine environment. Their use should be considered as an environmental crime. International mechanisms should be set up in order to have an effective control over violations. 6. The update of control mechanisms, to ensure compliance with protection rules in the International Humanitarian Law, by giving more power to the Truth Commission, and revoking the condition on prior consent of the relevant State for the Commission to exercise control and conduct inquiries on harms to marine environment caused, or assumed to be caused, by that State during or after an armed conflict with another State."