Protecția mediului în timpul războaielor

Cum pot fi trase la răspundere statele?

Lucrarea de față abordează un subiect de actualitate privind relația dintre mediul înconjurător,
dreptul generațiilor viitoare de a beneficia de un mediu curat, prosper, neafectat de războaie,
precum și dreptul omului de a trăi într-o lume lipsită de teroare și conflicte armate. Mediul
trebuie protejat atât în raport cu dreptul la dezvoltare al popoarelor și statelor, dar, totodată, și
în raport cu existența conflictelor militare care implică tehnologii destructive la adresa sa.
Omenirea fiind aflată într-o situație de acest gen la momentul actual, această lucrare
elaborează consecințele pe care un stat le are de suferit în urma folosirii armelor și cum acesta
ar putea fi tras la răspundere, bazat pe istorie și în temeiul legii.

Summaries of the Work of the International Law Commission

Protection of the environment in relation to armed conflicts

At its sixty-fifth session, in 2013, the International Law Commission decided to include the

topic "Protection of the environment in relation to armed conflicts" in its programme of work,
on the basis of the recommendation of the Working Group on the long-term programme of
work. The Commission decided to appoint Ms. Marie G. Jacobsson as Special Rapporteur for
the topic.

At the sixty-sixth session in 2014, the Commission considered the preliminary report of the

Special Rapporteur,1 which provided an introductory overview of phase I of the topic, namely
the environmental rules and principles applicable to a potential armed conflict (“peacetime
obligations”).

At the sixty-seventh session in 2015, the Commission had before it the second report of the
Special Rapporteur,2 which, inter alia, identified and examined existing rules of armed
conflict directly relevant to the protection of the environment in relation to armed conflict.
The report contained five draft principles and three draft preambular paragraphs. The
Commission decided to refer the draft preambular paragraphs and the draft principles, as
contained in the report of the Special Rapporteur, to the Drafting Committee, with the
understanding that the provision on use of terms was referred for the purpose of facilitating
discussions and was to be left pending by the Drafting Committee. The Commission
subsequently took note of the draft introductory provisions and draft principles I-(x) to II-5,
provisionally adopted by the Drafting Committee. 

At its sixty-eighth session, in 2016, the Commission had before it the third report of the
Special Rapporteur,3 which focused on identifying rules of particular relevance to post-
conflict situations, while also addressing some preventive issues to be undertaken in the pre-
conflict phase. The report contained a proposal of three draft principles on preventive
measures, five draft principles on the post-conflict phase and one draft principle on the rights
of indigenous peoples.4 The Commission referred the draft principles to the Drafting
Committee and referred back to the Drafting Committee the draft introductory provisions and
draft principles it had taken note of during its sixty-seventh session to address some technical
issues. Upon receipt of the reports of the Drafting Committee, the Commission (a) took note
of draft principles 4, 6, 7, 8, 14, 15, 16, 17 and 18, which had been provisionally adopted by
the Drafting Committee, and (b) provisionally adopted the draft principles which it had taken
note of at its sixty-seventh session, together with commentaries thereto.5

At its sixty-ninth session, the Commission established a Working Group on the topic, chaired

by Mr. Marcelo Vázquez-Bermúdez. The Working Group had before it the draft
commentaries prepared by the Special Rapporteur, even though she was no longer with the
Commission, on draft principles 4, 6 to 8, and 14 to 18 provisionally adopted by the Drafting
Committee at the sixty-eighth session of the Commission, and taken note of by the
Commission at the same session. The Working Group focused its discussion on considering
the way forward. Upon consideration of the oral report the Chair of the Working Group, the
Commission decided to appoint Ms. Marja Lehto as Special Rapporteur.

At its seventieth session, the Commission adopted draft principles 4, 6, 7, 8, 14, 15, 16, 17

and 18,6 which had been taken note of at the sixty-eighth session (2016). The Commission
also had before it the first report of the Special Rapporteur, Ms. Marja Lehto, 7 which, inter
alia, considered the protection of the environment under the law of occupation; protection of
the environment in situations of occupation through international human rights law; and the
role of international environmental law in situations of occupation, and included proposals for
draft principles 6 (2), 15 to 18. 

At its seventy-first session, in 2019, the Commission provisionally adopted draft principles

19, 20 and 21, which had been provisionally adopted by the Drafting Committee at the
seventieth session. The Commission had before it the second report of the Special
Rapporteur,8 which addressed certain questions related to the protection of the environment in
non-international armed conflicts, with a focus on how the international rules and practices
concerning natural resources may enhance the protection of the environment during and after
such conflicts. The second report also addressed the responsibility and liability of States and
non-State actors. Seven draft principles were proposed, all of which were referred to the
Drafting Committee. On the basis of the report of the Drafting Committee, the Commission
provisionally adopted the entire set of the draft principles on protection of the environment in
relation to armed conflicts on first reading. 

The Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the
draft principles on protection of the environment in relation to armed conflicts, through the
Secretary-General, to Governments, international organizations, including from the United
Nations and its Environment Programme, and others, including the International Committee
of the Red Cross and the Environmental Law Institute, for comments and observations, with
the request that such comments and observations be submitted to the Secretary-General by 1
December 2020.

The work of the Commission on the topic as described above has been proceeding in
accordance with the successive resolutions adopted by the General Assembly under the item
relating to the report of the International Law Commission.9

Reports of the Drafting Committee

Statement of the Chair of the Drafting Committee

71st session of the International Law Commission 2019
„Paragraph 1 reads: “[a]n internationally wrongful act of a State, in relation to an armed
conflict, that causes damage to the environment entails the international responsibility of that
State, which is under an obligation to make full reparation for such damage, including damage
to the environment in and of itself.”
The purpose of paragraph 1 is to reflect a general obligation of States. It sets out that an
internationally wrongful act of a State, which causes damage to the environment and which is
attributable to that State, entails that State’s international responsibility to make full reparation
for such damage. Paragraph 1 also makes clear that the internationally wrongful act must be
in relation to an armed conflict. In addition, paragraph 1 envisages that the obligation of the
responsible State to make full reparation for the environmental damage caused includes
damage caused to the environment per se.

This draft principle now states that “[i]n accordance with their international obligations, States
shall not engage in military or any other hostile use of environmental modification techniques
having widespread, long-lasting or severe effects as the means of destruction, damage or
injury to any other State.” The purpose of this draft principle is to have a specific provision on
the prohibition of deliberately manipulating the environment for its use as a weapon.

In the view of some members, the expression “in accordance with their international
obligations” only encompasses treaty obligations. It was agreed that the commentary will
explain the meaning of the expression “environmental modification techniques”; notably, that
this term has the same meaning as the one contained in article 2 of the ENMOD Convention.
It was also agreed that the commentary will address the issue of environmental modification
techniques in the context of non-international armed conflicts.”

As a result of its consideration of the topic at the present session, the Commission adopted, on
first reading, 28 draft principles, together with commentaries thereto, on protection of the
environment in relation to armed conflicts. The Commission decided, in accordance with
articles 16 to 21 of its statute, to transmit the draft principles, through the Secretary-General,
to Governments, international organizations, including from the United Nations and its
Environment Programme, and others, including the International Committee of the Red Cross
and the Environmental Law Institute, for comments and observations, with the request that
such comments and observations be submitted to the Secretary-General by 1 December 2020

The consequences of Chernobyl

International Nuclear Law in the Post-Chernobyl Period

The accident on 26 April 1986 in unit 4 of the Chernobyl nuclear power plant in the former
Ukrainian Republic of the Union of Soviet Socialist Republics, near the present borders of
Belarus, the Russian Federation and Ukraine, was categorised at the time as “the most
devastating accident in the history of nuclear power”.1 Two decades on, the assessment of the
health, environmental and socio- economic impacts of the accident still continues, with the
aim of providing definitive and authoritative answers.
In addition, from a legal perspective the accident underlined some significant deficiencies and
gaps in the international legal and regulatory norms that had been established to govern the
safe and peaceful uses of nuclear energy. At the same time, it stressed the “need for a
collective international focus on [nuclear] safety” and, in its wake, prompted a call for “the
creation of an international regime for the safe development of [nuclear energy]” under the
auspices of the IAEA.
For all its devastating consequences, the accident was in fact a wake-up call for the
“international nuclear community” and led to a new era in international nuclear cooperation,
involving states which had so far been removed both geographically and technologically from
nuclear power. In its aftermath, the international nuclear community, in an attempt to allay
concerns of the public and political world over the use of the atom as a viable energy source,
sought to rebuild confidence in the safety of nuclear energy, primarily through the IAEA, by
urgently addressing those main deficiencies in the existing international legal framework that
had been exemplified by the accident.