Environmental protection of military base sites
Legal protection of the environment at military base sites America in the Arabian Gulf region
Introduction:
Given the need for Gulf Arab states to establish military bases that ensure their security against potential military threats, it is important to highlight the significant environmental damage these bases might cause to the host state. This necessitates an examination of the stance of international law on such risks. Binding rules of international law require U.S. forces to avoid causing such damage. Principles 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, which carry binding legal weight, emphasize the protection of the environment from hazardous military activities. The United Nations Charter, the First Protocol to the Geneva Conventions of 1977, the 1978 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, the 1989 Basel Convention, and U.S. bilateral agreements with Canada and the Philippines all acknowledge such environmental risks. The prohibition of environmental damage caused by military activities in international law is not limited to binding rules; even non-binding international rules prohibit environmental harm, as seen in the 1972 Stockholm Action Plan, the 1982 World Charter for Nature, the 1992 Rio Declaration, and Agenda 21 of 1992.
Like other military bases, U.S. military bases are subject to the national laws of the host countries, except in exceptional cases. Among the U.S. laws that prohibit environmental damage anywhere are the NEPA 1969, the RCRA of 1977, the CERCLA of 1980, Executive Order No. 12,114 of 1979, and other regulations and policies of the U.S. Department of Defense. Even the liability that U.S. forces may face for damaging the host state’s environment can fall under multiple jurisdictions. The consequences of such liabilities may require the rehabilitation of military sites abandoned by U.S. forces or, in some cases, the provision of appropriate compensation.
This study aims to contribute to environmental protection, which cannot escape when danger approaches, and to work on keeping military bases away from environmentally sensitive areas, conducting environmental impact studies before establishing these bases, and rehabilitating their sites after they are decommissioned.
This study addresses both military leaders and political decision-makers, alongside environmental protectors in the Arabian Gulf region. The idea for this study emerged in response to the increasing establishment of military bases in the Arabian Gulf region and the potential environmental damage these bases, their storage facilities, the materials used by the operating forces, and the harmful military activities conducted therein may cause to the natural environment. Military activities may even extend beyond these bases, causing environmental damage around and outside the base, posing a threat to the surrounding environmental or residential areas.
The environmental risks posed by these bases are exacerbated by the increasing dangers of military technologies and the hazardous materials they use, which are harmful to human health and the natural environment. Given that the military presence is most prominent in the presence of U.S. forces, which have made the Gulf, in general, and Kuwait, in particular, a center for their military operations, questions arise about the responsibility of U.S. forces for the current and future environmental damage caused within and beyond the borders of these military bases. Furthermore, questions arise regarding the applicable law on environmental protection in military base areas and military operation sites outside these bases.
Accordingly, this study will address the following:
1. First Chapter: Background on the establishment of military bases in the Gulf region.
2. Second Chapter: Environmental risks in the establishment of military bases in the Gulf region.
3. Third Chapter: The position of international law on the obligation to protect the environment within military bases.
- First: Principles of international law addressing the application of national laws across borders.
- Second: Multilateral international agreements supporting the application of environmental laws across borders.
- Third: Bilateral international agreements supporting the application of environmental laws across borders.
- Fourth: Multilateral defense alliance agreements that reinforce environmental commitments beyond borders.
- Fifth: Non-enforceable sources of international law supporting the application of national laws across borders.
4. Fourth Chapter: U.S. legislation related to the protection of the natural environment of host states of its military bases.
5. Fifth Chapter: The responsibility of the United States for polluting the environment of the host state within and beyond military bases.
Chapter One: Background on the Establishment of Military Bases in the Gulf Region
The United States has been leasing military bases since 1940. Almost every Gulf state hosts a U.S. military base or accommodates a unit or faction of U.S. military forces. This focus on the region stems from the mutual need between the host and the guest—the U.S. needs a presence in the Gulf region, while Gulf governments require U.S. military forces to support, reinforce, and protect their regimes and state sovereignty.
There is no doubt that the industrial revolution in the United States heavily relies on the production and consumption of oil. To prevent disruptions to this industrial engine—such as those that occurred in 1973 due to the Arab oil embargo—it is essential to ensure the continuous and regular flow of oil. The Gulf states are among the most important sources of oil in the world, along with the Commonwealth of Independent States, Venezuela, and Mexico. The United States has managed to contain the Commonwealth of Independent States after exhausting it and surpassing it in the arms race. Mexico is the U.S.'s most important ally and is closely linked with it in the American states system. However, Venezuela, under its current leadership, headed by President Chávez, remains a significant concern for the U.S., which has been unable to establish a military base there and continues to seek ways to remove him from power by supporting the opposition.
However, the Gulf states—which share Arab and Islamic ties with Palestine—remain a source of unrest and instability for the U.S. These ties of Arabism and Islam could potentially drive Gulf states to use oil as a pressure tool against U.S. policies in the region to stop its unwavering support for Israel, as happened in 1973, which led to economic disruption in the U.S. Therefore, the U.S. focuses on the Gulf region by creating and responding to crises, whether real or fabricated. In both scenarios, U.S. support for the Gulf states typically takes the form of military aid. After each crisis, the U.S. deploys more troops to the region and strengthens its foothold by signing additional military agreements or establishing new military bases.
For example, following the Egyptian-Syrian unity in 1958, Saudi Arabia, concerned about this new nationalist union and its threat to the ruling monarchy, established the Dhahran Military Base and allowed U.S. forces to be stationed there and conduct military activities from that location. Similarly, Bahrain faced threats, but from the Islamic Republic of Iran, which claimed historical rights over Bahrain, prompting the Bahraini government to sign a military cooperation treaty that allowed U.S. forces to use its territory and establish a presence there. Both the Dhahran and Bahrain bases played crucial roles in supporting U.S. combat operations against Iraq in 1991 and 2003. Kuwait was not immune to such crises either. Until 1990, Kuwait was one of the staunchest opponents in the Arab world to any foreign military presence on Arab soil. However, Iraq’s invasion and annexation of Kuwait, and the subsequent violations against human rights and the natural environment, changed the situation entirely. Following the U.S. support in liberating Kuwait and leading coalition forces, Kuwait opened its territory to U.S. forces, who established a base in the Doha area, with additional forces stationed at the Al-Salem and Ahmad al-Jaber airbases. This was not the end, as efforts continue to build new U.S. military bases in southern and northern Kuwait, such as Camp Arifjan, and the California and New York camps. Most recently, U.S. forces have been stationed at Al Udeid Air Base in Qatar, the latest U.S. military base in the region. Qatar welcomed this base, which serves as the central command for the Gulf region, after Saudi Arabia declined to allow the U.S. to use its bases for further attacks on Iraq. Several other reasons contributed to Qatar's acceptance of this U.S. base, including the Saudi-Qatari and Bahraini-Qatari disputes, as well as the threats and attempts to undermine the Qatari regime led by the former Emir of Qatar and his supporters.
No one could have imagined that the entire Republic of Iraq would one day become the most important U.S. military base in the Gulf region. There isn’t a major city in Iraq where a U.S. military base has not been established, supported and encouraged by the interim Iraqi government.
The practice of relying on foreign forces, whether American or otherwise, is widely criticized and unacceptable in the Arab world as it contradicts Arab traditions and principles, especially when the use of foreign forces by one Arab or Islamic country is against another Arab or Islamic country. In response to this sentiment, Colonel Muammar Gaddafi closed the U.S. base in Libya after the Al-Fateh Revolution. Saudi Arabia also refused to allow U.S. forces to use its bases in the kingdom to attack Iraq. The public's rejection of some Gulf states hosting these military bases has been expressed through acts that endangered the safety and security of those working at these bases, such as attacking the bases' buildings or assaulting personnel. For instance, a Qatari citizen fired shots at the Al Udeid Air Base in Qatar without causing injuries. In Kuwait, citizens shot at U.S. forces stationed on Failaka Island, resulting in the death and injury of two American soldiers. Additionally, in early 2003, a Kuwaiti citizen attacked a civilian car leaving the military base in the Doha area, causing the death of one American and serious injury to another.
Since establishing military bases involves a relationship between two states—the guest and the host—the optimal method for creating these bases is through the signing of international agreements. Under these agreements, both parties define the conditions for hosting and the limits of jurisdiction, with the host state granting the guest forces various privileges and concessions, including relinquishing certain domestic legal powers, such as criminal jurisdiction, within the base. The guest forces are obligated to respect the laws, traditions, and religion of the host state. Sometimes, these agreements include a clause requiring the protection and defense of the host state from any external or even internal attacks. Most of these agreements are characterized by their secretive nature, preventing the public from accessing the details and purposes of these agreements. During our time in the United States, we made extensive efforts to access the agreement regarding the establishment of the U.S. military base in Doha, Kuwait, but were disappointed to learn that the agreement was classified.
The agreements on establishing military bases vary in the rights they grant and the obligations they impose. Sometimes, the host state cedes all its sovereign rights over the military base's territory to the guest state, while other times, the host state only relinquishes certain rights necessary for the effective operation of the base. In all cases, the host state retains the right to prosecute acts of espionage, treason, and sabotage committed by personnel working at these bases. But what about crimes against the natural environment?
Chapter Two: Environmental Risks Associated with the Establishment of Military Bases in the Gulf Region
When questions arise regarding the environmental damage that can result from establishing military bases, we refer to the environmental damage caused by military conflicts. These military bases are always prepared for military operations, storing equipment and supplies that enable them to engage in warfare, with all the destruction that war entails for humans and the natural environment. A considerable number of U.S. military base storage facilities contain lead, nerve gas, mustard gas, sodium, acid, and other chemicals. Even if these anticipated wars do not occur, the stockpiling of materials at military bases still poses a risk of damage and degradation, which could incidentally harm the natural environment without the necessity of military action. Additionally, the use of military equipment and the conduct of military activities lead to wear and tear, generating waste that is harmful to the natural environment. Furthermore, oils and fuels used by these bases inevitably leak during usage, causing environmental damage. Finally, military exercises, whether conducted alone or alongside the host nation’s forces, produce military waste from used ammunition and destroyed targets, damaging the locations of these targets, whether on land or in water.
Numerous historical instances have demonstrated the environmental damage caused by U.S. military bases, both within the base areas and in the surrounding regions. In the United States alone, there are over 20,000 sites contaminated with toxic materials. For example, the American media has described the Denver Rocky Mountain Arsenal as the most contaminated square mile on Earth. Additionally, Aberdeen Proving Ground in Maryland was used as a dumping site for toxic materials like cyanide, napalm, and lead. The unfortunate aspect of this base is its proximity to the Chesapeake Bay Nature Reserve. According to a U.S. Congressional report issued in February 1991, several military sites in the United States have been identified as contaminated with toxic materials, including Anniston Army Depot in Alabama, Hill Air Force Base in Utah, Treasure Island Naval Station (Hunters Point Annex) in San Francisco, and Twin Cities Air Force Reserve Base in Minneapolis.
This is the situation within the United States, but similar environmental damage has occurred internationally at U.S. military bases in other countries. It has been definitively proven that groundwater used for drinking near several U.S. bases in Germany was contaminated due to jet fuel and ethylene chloride leaks. Additionally, research on former U.S. military base sites in the Philippines, such as Subic Bay Naval Base and Clark Air Base, revealed that U.S. forces caused hazardous waste contamination at the sites. They also disposed of some untreated chemicals and heavy metals into the air, land, and water. The World Health Organization confirmed the environmental threat posed by the Subic Bay base in the Philippines. Moreover, one cannot overlook the noise pollution caused by the takeoffs and landings of military aircraft at these bases, particularly airbases. In this regard, local residents in Japan have complained that U.S. military operations threaten birds and nature reserves in their country, while in Germany, residents have complained that U.S. air sorties fill the skies with the noise of aircraft.
Since 1941, the U.S. Navy has used Vieques Island in Puerto Rico as a site for military exercises. An F-18 aircraft once dropped a 500-pound bomb, causing widespread environmental damage and affecting the island’s natural life, especially marine organisms around it.
The military bases in Kuwait have not been exempt from such incidents. For example, a fire broke out in the weapons storage area at the Doha base, exposing nearly 3,000 U.S. soldiers to oxidized uranium dust and hexafluoride uranium, both of which are classified as highly toxic and dangerous gases, as they are primary causes of cancer, birth defects, and kidney diseases. This incident, which was reported by the media and whose details became known, confirms that the nature of the materials stored in U.S. military bases in the Gulf poses a significant danger, no less than the threat of war itself. This is especially concerning given that the United States has threatened multiple times to attack Iraq with prohibited weapons if they are used against U.S. forces, supporting the possibility that these prohibited weapons are stored near the battlefield.
Chapter Three: The Position of International Law on the Obligation to Preserve the Environment within Military Bases
Despite the well-established principle of state sovereignty over its territory, which implies that only national laws created by local authorities should apply within its borders, international law includes many rules that encourage the extension of environmentally beneficial laws beyond national borders and their application in foreign territories, especially if these national laws contribute to environmental protection. We find support for this in the principles of international law and in bilateral and multilateral international agreements.
First: International Law Principles Addressing the Application of National Laws Across Borders**
1) General Principles of the Stockholm Declaration:
The United Nations Conference on the Human Environment, held in Stockholm on June 16, 1972, adopted a declaration for environmental protection known as the Stockholm Declaration. Principle 21 of the declaration states:
Based on the Charter of the United Nations and the principles of international law, every state has the sovereign right to exploit its resources according to its environmental policies, provided that activities conducted within its jurisdiction or under its control do not cause damage to the natural environment of other states or areas beyond the limits of national jurisdiction.
It is evident that Principle 21 of the declaration attempts to reconcile two crucial issues: first, the freedom of a state to engage in whatever investment activities it chooses within its sovereign territory; and second, that this freedom should not result in harm to the environment of others, or even in areas not subject to the jurisdiction of others, but rather outside these sovereign boundaries, such as sites that constitute a shared heritage of all humanity. As noted in the first chapter of this study, military bases, through their activities and the materials they use and store, can cause environmental damage beyond the boundaries of state sovereignty or outside areas under its control. This constitutes a clear violation of the provisions of Principle 21 of the Stockholm Declaration.
Principle 21 of the Stockholm Declaration is considered a reaffirmation of a general principle of international law that is binding on all states as one of the sources of international law, according to Article 38 of the Statute of the International Court of Justice. The United States itself has accepted and acknowledged the binding nature of Principle 21 of the Stockholm Declaration.
2) General Principles of the Rio Declaration:
The Earth Summit held in Rio de Janeiro, Brazil, in 1992—twenty years after the adoption of the Stockholm Declaration—reinforced these environmental principles. Principle 2 of the Rio Declaration states:
In accordance with the Charter of the United Nations and the principles of international law, states have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.
It is noteworthy that the Rio Declaration adopts almost the same wording as Principle 21 of the Stockholm Declaration. Consequently, the pressure increased on the United States after it accepted the Rio Declaration, requiring it to ensure that activities conducted within the areas under its control, including its military bases in the Arabian Gulf region, do not harm the environment of these host countries. Failure to do so would hold the United States internationally responsible for violating these general principles of international law.
In addition to the general principles of international law, international agreements are considered a primary source of international law. Therefore, states that are parties to these international agreements are obligated to adhere to the legal commitments contained within them. These international agreements can be divided into multilateral and bilateral agreements.
Second: Multilateral International Agreements Supporting the Application of National Environmental Laws Across Borders
Multilateral agreements are those that include more than two countries. Some of these treaties are not directly related to the establishment of military bases and their impact on the natural environment. However, they provide a legal basis to oblige the United States to work on preserving the environment as a human heritage that transcends bilateral obligations. Some of these treaties include the United Nations Charter, the First Protocol to the Four Geneva Conventions, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes.
1) The United Nations Charter:
The United Nations Charter serves as the minimum standard for conducting relations between states, requiring all states to respect the obligations within it while engaging in relations with other states. Article 1 of the Charter states that the purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace..."
2. To develop friendly relations among nations...
3. "To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character..."
Peace between two nations cannot be achieved if one engages in activities within its territory or under its control that pollute the environment of the other state and endanger the health and safety of its citizens. Similarly, friendly relations among nations cannot prevail if one state is polluting the natural environment of another. Finally, achieving cooperation in solving humanitarian issues, such as those related to health, requires that the polluting state refrain from exporting its pollutants through air or water to other nations.
Therefore, the United Nations must review its environmental policy when establishing military bases in the Arabian Gulf and around the world.
The First Protocol to the Four Geneva Conventions:
In addition to the Four Geneva Conventions of 1949, two protocols were added in 1977. The First Protocol to the Geneva Conventions includes Articles 35 and 55, which affirm a customary rule of international law. Both provisions address the military means used during wars with the intention, or the likelihood, of causing severe, widespread, and long-lasting environmental damage. These three terms—severe, widespread, and long-lasting—were subjects of debate regarding their meaning until the issuance of a commentary on the First Protocol, which clarified each term specifically. "Long-lasting" was defined as damage that extends over decades, typically twenty to thirty years. "Widespread" refers to damage affecting hundreds of square kilometers. "Severe" indicates harm to public health. However, to apply these provisions, unfortunately, all three elements must be present simultaneously—meaning the environmental damage must be severe, widespread, and long-lasting. The commentary on the First Protocol would have been better served by requiring only one of these elements to hold a state accountable for environmental damage.
Although the United States has not yet ratified the First Protocol, it is still bound by its content, as the provisions are considered, according to the International Committee of the Red Cross, to be customary international law. Therefore, the U.S. Department of Defense must ensure that in establishing, operating, and vacating its military bases in the Arabian Gulf region, these sites do not cause environmental damage that is severe, widespread, and long-lasting.
3) Prohibition of Military Use of Environmental Modification Techniques
The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques prohibits the use of environmental modification techniques for military purposes or as a weapon. The U.S. military recorded a serious precedent in this regard during its war in the Philippines, where it attempted to manipulate weather conditions by creating artificial clouds to serve its combat operations. One of the most severe environmental violations in history was committed by Iraq during its invasion of Kuwait in 1991. The Iraqi forces exploited natural resources for military advantage by spilling oil into the Arabian Gulf and setting fire to Kuwaiti oil wells. This act was a grave violation of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. However, while the U.S. violation occurred before the convention came into force, the Iraqi violation happened after it was in effect.
Article 1 of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques states:
Each State Party to this Convention undertakes not to 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 Party."
A close examination reveals a significant similarity between Articles 35 and 55 of the First Protocol to the Four Geneva Conventions and Article 1 of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. However, upon closer inspection, one can see that the environmental protection provided by the First Protocol is weaker compared to the more effective protection offered by the Environmental Modification Convention. The First Protocol requires the simultaneous presence of all three elements—widespread, severe, and long-lasting—for a state to be held responsible for environmental damage, which is difficult, if not impossible, to prove. On the other hand, the Environmental Modification Convention only requires the presence of one of these characteristics for a state to be held accountable for environmental damage. The convention also provides definitions for these terms. "Widespread" is defined as damage affecting several hundred square kilometers, "long-lasting" as damage lasting more than two seasons, and "severe" as significant harm to human life, natural resources, and economic assets.
Despite the progress made by this convention in restricting military behavior and the use of military techniques against the environment, it unfortunately overlooks traditional harmful practices that do not involve advanced techniques, such as deforestation through cutting or flooding. Additionally, the convention only applies during armed conflicts.
4) The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal
The Basel Convention encourages member states to implement their national laws to advance appropriate environmental policies. Article 10 of the Basel Convention states:
Parties shall cooperate with one another in order to improve and achieve environmentally sound management of hazardous and other wastes. To this end, the Parties shall: ... (c) Co-operate, subject to their national laws, regulations, and policies, in the development and implementation of new environmentally sound low-waste technologies; ... (d) Co-operate actively, subject to their national laws, regulations, and policies, in the transfer of technology and management systems related to environmentally sound management of hazardous and other wastes...
The content of Article 10 encourages member states to use their domestic laws to promote environmental protection. The United States signed the Basel Convention but has not ratified it. Therefore, while the U.S. has not ratified the Basel Convention, it cannot completely disregard its provisions. According to Article 18 of the Vienna Convention on the Law of Treaties:
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance, or approval until it shall have made its intention clear not to become a party to the treaty..."
Thus, the United States is obligated to apply its environmental policies and national laws, especially if these policies and laws contribute to advancing environmental protection.
Third: Bilateral International Agreements Supporting the Application of Environmental Laws Across Borders Bilateral international agreements are those signed between two states only. Some bilateral agreements support the application of national laws on the territories of foreign states or, at the very least, outside the national territory. Relevant to the United States are agreements such as the one signed with Canada regarding the final settlement of all claims related to the cleanup of former U.S. military sites in Canada, and the agreement with the Philippines concerning the treatment of U.S. visiting forces in the Philippines.
1) The Agreement Between the United States and Canada Regarding the Final Settlement of Claims Related to the Cleanup of Former U.S. Military Sites in Canada:
In reality, the bilateral agreement between the United States and Canada is reflected in the exchange of letters between the Canadian ambassador and the U.S. Department of Defense. These letters concern the final settlement of certain claims related to the environmental cleanup of former U.S. military sites in Canada. In a letter from the U.S. Department of Defense to the Canadian ambassador, Mr. Raymond Chrétien, the Department stated that "The Department of Defense adopts a policy of risk management and compensation for environmental damages that pose a significant threat to human health and safety." The U.S. Department of Defense attempted to distance itself from responsibility in this matter, arguing that neither domestic law nor international law obligates it to clean up former military sites. As a result, the Department of Defense determined that an ex gratia payment of $100 million was a fair settlement for the cleanup of four former U.S. military sites in Canada. However, Canada emphasized the United States' obligation under international law to clean up its former military sites in Canada.
From our perspective, we affirm the principle that military sites should be exempt from the application of the host nation's local legislation. However, these sites should not operate in a legal vacuum, without being subject to any legal rules. In such situations, and given the unique nature of the activities carried out at these sites, it is acceptable to apply the host country's standards and regulations, which in this case are the U.S. environmental laws. In fact, the U.S. Department of Defense has adopted several policies that could serve as a legal basis for applying U.S. environmental policies to its military bases, such as the Final Governing Standards (FGS) and the Overseas Environmental Baseline Guidance Document (OEBGD), which we will discuss later. In any case, the United States' assumption of the cleanup costs for its military sites in Canada sets a legal precedent that could be relied upon by Gulf countries when the U.S. eventually vacates its bases in the region.
Despite resolving the differences between the United States and Canada regarding the cleanup of former U.S. military sites, this bilateral agreement failed to address the cleanup procedures or the standards to be used in the cleanup process. It is worth noting that the U.S. National Contingency Plan outlines the general procedures for cleaning up hazardous waste sites, which could include military bases.
2) The Agreement with the Philippine Government Regarding the Treatment of U.S. Visiting Forces in the Philippines:
After the United States and the Philippines signed the Mutual Defense Treaty in 1951, the two governments later signed a supplementary agreement granting the U.S. jurisdiction over criminal and punitive matters involving American military personnel in the Philippines, according to U.S. military laws. This agreement allows U.S. authorities to punish actions deemed criminal under U.S. law, even if they are not considered crimes under Philippine law. Furthermore, U.S. authorities have jurisdiction in cases of legal conflicts between the two countries' laws if the offenses were committed by Americans against U.S. property or security, or against American persons, or if the acts were related to the performance of military duties. This agreement supports the notion of extending the application of national laws beyond a state's borders. Therefore, it is reasonable to apply U.S. environmental regulations to American individuals under the jurisdiction of their nation, and it is not in the Philippines' interest to object to such an application, especially since it provides genuine environmental protection given the strictness of U.S. environmental laws compared to those in the Philippines.
Regarding U.S. responsibility for environmental damage caused by military base activities, Article 6 of the Philippine-American agreement states that "The United States shall pay a fair and reasonable amount as compensation for foreign claims arising from damage, loss, bodily injury, or death resulting from the activities of the U.S. military." There is no doubt, as discussed in the first chapter on the risks of establishing military bases, that the activities of these bases can cause damage, loss, bodily injury, or even death, which necessitates the payment of fair and reasonable compensation.
IV: Multilateral Defense Alliances that Enhance Environmental Obligations Beyond Borders
Groups of countries with shared military concerns may form military alliances, such as NATO. Similarly, international organizations with general mandates may engage in military activities to enforce their resolutions. In both cases, these international military institutions must prioritize environmental considerations during their military activities.
1) The Agreement Between NATO Members Regarding the Immunities and Privileges of NATO Forces (SOFA)
The agreement signed between NATO countries regarding the rights and privileges of their military forces is similar to the agreements previously discussed between the Philippines and the United States. According to Article 7(1)(a) of these agreements, the military authorities of the sending state have criminal jurisdiction and authority according to their national laws within the borders of the receiving state. Article 7(2)(a) grants the military authorities of the sending state exclusive jurisdiction over crimes committed by personnel subject to their military law, which are punishable under the sending state's laws but not under the receiving state's laws. In the event of a conflict between the laws of the receiving state and the sending state concerning the property and security of the sending state, or the safety of property or persons of the military force, or crimes committed during the performance of military duties, the sending state retains jurisdiction.
Since this agreement allows the participating countries, including the United States, to extend the jurisdiction of their national laws beyond borders, it is reasonable to extend environmental regulations in this regard to address the actions of U.S. forces at their military bases abroad.
2) Immunities and Privileges of United Nations Peacekeeping Forces
Article 43(1) of the United Nations Charter permits the principle of collective defense and the formation of UN peacekeeping forces, stating:
"All Members of the United Nations, to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and by a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for maintaining international peace and security."
The formation and operation of peacekeeping forces occur with the consent of the parties to the conflict. This formation is based on the contributions of UN member states. These states retain the right to exercise criminal jurisdiction over crimes committed by their military personnel in the host country as part of the peacekeeping forces. Therefore, the United States has the right to exercise criminal jurisdiction in such matters over its soldiers participating in peacekeeping forces. Consequently, the application of criminal laws related to serious environmental violations should not be surprising to the U.S. Department of Defense.
V: Non-Enforceable Sources of International Law (Soft Law) that Support the Application of National Laws Beyond Borders
When discussing the sources of international law, we find they are divided into enforceable sources (Hard Law) and non-enforceable sources (Soft Law). The first category includes international treaties, while the second category includes international declarations and directives. Documents such as the Action Plan from the Stockholm Conference on the Human Environment, the World Charter for Nature, the Rio Declaration, and Agenda 21 fall under the non-enforceable sources category.
1) The Action Plan from the Stockholm Conference on the Human Environment:
The 1972 United Nations Conference on the Human Environment adopted an Action Plan consisting of 109 recommendations to support environmental protection. This non-enforceable document encourages countries to identify key environmental risks before proceeding with any project. Although these recommendations are not binding, the United States has accepted them. Since 1969, the United States has been operating under the National Environmental Policy Act (NEPA), which requires all government agencies to consider the environment in their activities and operations, aligning with the essence of the Action Plan in this regard. Consequently, all government institutions, including military institutions, are required to prepare environmental impact studies before initiating any activities that could significantly affect the quality of the human environment.2) The World Charter for Nature:
The World Charter for Nature was adopted in 1982 and is notable for its explicit treatment of the environmental impacts of military activities. Article 21 (c) and (d) states that nations shall:
"Ensure that activities within their jurisdiction or control do not cause damage to the ecosystems of other states or areas beyond the limits of national jurisdiction."
(d) "Protect and conserve nature in areas beyond national jurisdiction."
This text clearly emphasizes both negative and positive obligations. Regarding the negative obligation, member states must refrain from activities that could harm the natural environment of other nations, which could arise from certain military activities on military bases, thus necessitating their cessation. Concerning the positive obligation, member states are required to do more than merely refrain from actions that harm the natural environment. They must actively engage in protecting and conserving the natural environment beyond their national borders, such as military forces stationed at bases in the Arabian Gulf engaging in reforestation and rehabilitating desert areas around these bases, as well as fostering and protecting wildlife, particularly endangered species.
However, it is disheartening that the United States voted against this document, despite its non-binding nature. The U.S. refusal to sign the Charter undermines its legal value in the international community, arguing that its significance is diminished because a major power did not endorse it. On the other hand, the U.S. abstention from signing the Charter, while most of the world’s nations approved it, places a certain obligation on the U.S. to respect the will of the international community, which has adopted this document as a general legal principle governing the civilized world. Indeed, Article 38 of the Statute of the International Court of Justice considers general principles of law as one of the sources of international law.
3) The Rio Declaration:
Principle 13 of the Rio Declaration states:
"States shall develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to further develop international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.
This text clearly calls upon member states to work towards the development of both national and international laws concerning liability and compensation for those harmed by environmental violations. Thus, in alignment with this principle, the United States should work to develop its national laws or enforce existing ones to strengthen liability for environmental damage occurring beyond U.S. territorial jurisdiction, particularly at its overseas military bases. This would have a significant impact on the development of international law in this area, leading many other countries to follow the U.S.'s example.
Chapter 4: American Legislation Related to the Protection of Host Countries' Natural Environments
Section 4.1: Major Environmental Legislation Applicable Outside the United States
U.S. environmental legislation is known for its rigorous approach to addressing environmental violations. Therefore, when comparing the application of local laws in the Gulf countries with U.S. laws, it is advantageous to advocate for the application of U.S. laws to environmental practices within U.S. military bases abroad. U.S. laws and case law support the application of these laws to U.S. institutions even if they are located in foreign territories, such as military bases in the Gulf countries. The following are key U.S. environmental regulations that support the idea of applying domestic laws across borders:
1) NEPA (National Environmental Policy Act):
The National Environmental Policy Act (NEPA) of 1969 is one of the most significant environmental laws in the United States. NEPA is notable for not exempting any institution from adhering to environmental standards and procedures, unlike practices in some developing countries where the defense ministries might be exempt from waste disposal standards followed by other state institutions. Since U.S. military bases in Gulf countries fall outside the jurisdiction of these host nations and are under U.S. control, they are required to comply with U.S. national laws, including environmental standards.
The U.S. Congress, when adopting NEPA, did not differentiate between local or foreign environmental impacts when requiring Environmental Impact Statements (EIS). NEPA encourages contributions towards reducing environmental harm and enhancing human health and well-being. One of NEPA’s key requirements for all federal institutions, including the Department of Defense, is to prepare an Environmental Impact Statement (EIS). This document must include information about the nature of the proposed federal project, potential environmental risks, alternative options, and their environmental impacts. Therefore, the Department of Defense must prepare an EIS for any military base it establishes in the Gulf or elsewhere. The establishment of a base outside the U.S. does not exempt the Department of Defense from this requirement; rather, it necessitates an external EIS, which is typically less detailed than domestic EISs.
2) RCRA (Resource Conservation and Recovery Act):
RCRA aims to protect human health and the environment by regulating the handling of hazardous waste and prohibiting improper disposal methods. Under this law, waste is classified as hazardous if it poses a significant threat to human health or the environment when treated, stored, transported, or disposed of improperly. Given that U.S. military bases in the Gulf region contain hazardous materials, they must fall under RCRA's provisions to ensure proper storage, transportation, disposal, and treatment of such waste. The incidents mentioned at the beginning of this study highlight the importance of subjecting military bases to RCRA's regulations. However, the President of the United States has the authority to exempt certain solid pollutants from RCRA standards and procedures if it is deemed in the interest of the United States to grant such an exemption. Nonetheless, it is essential to work on modifications to make RCRA's application reasonable and acceptable, which will be discussed later.
3) CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act):
CERCLA, enacted in 1980, mandates compensation for contaminated sites and imposes responsibilities for the costs of cleaning up these sites. Cleanup actions can be initiated as soon as hazardous materials are released into the environment, regardless of whether the contaminated environment is under federal or non-federal jurisdiction. CERCLA is notable for holding responsible parties—such as previous or current site owners, operators, or transporters of pollutants—jointly and severally liable for cleanup costs. The liability under CERCLA can only be avoided by proving that the damage was caused by an external force majeure, war, or the actions or negligence of others.
According to CERCLA, the federal government is also jointly responsible for cleaning up sites listed on the National Priorities List (NPL). For example, during World War II, a cellulose-producing company operated under government supervision and contaminated a site, leading to the federal government incurring cleanup costs. Thus, CERCLA's provisions can be applied to hold the U.S. government accountable for cleaning and potentially rehabilitating military base sites that the U.S. military has abandoned or will abandon. Additionally, CERCLA allows individuals or countries to seek judicial review to ensure compliance with its provisions, including for countries like Kuwait, Saudi Arabia, or Qatar, or their citizens who are affected by environmental pollution from U.S. military bases. They can bring their grievances to federal courts in the United States if the Department of Defense fails to conduct an Environmental Impact Study or clean up hazardous contaminants from the sites.
4) Executive Order 12,114 of 1979:
On January 4, 1979, then-President Jimmy Carter requested that all federal agencies operating outside U.S. borders, including the Department of Defense, apply special procedures for activities that could harm the quality and specifications of the natural environment. The Department of Defense implemented this executive order by prioritizing environmental protection regardless of the location of the military institution. Therefore, any action damaging the natural environment in Gulf countries hosting U.S. forces is considered a violation of both the executive order and the Department of Defense’s internal regulations.
The executive order gave special priority to areas described as common heritage, such as Antarctica, requiring written Environmental Impact Statements (EIS) for planned operations in these regions. U.S. courts have relied on this requirement, as seen in the Greenpeace U.S.A. v. Stone case, which examined potential environmental harm from transporting weapons from a U.S. military base in Germany to Johnston Atoll. This case highlights the seriousness of weapon and military material transfers to and from bases in the Gulf and the potential environmental pollution affecting human health and ecosystems.
5) Department of Defense Regulations and Policies:
The Department of Defense has adopted various regulations and policies concerning environmental protection, including those relevant to military bases located abroad.
A) Environmental Protection Guidelines for Operations Outside U.S. Borders:
The Pentagon issued guidelines to direct Department of Defense personnel in developing environmental standards based on the Department’s definition of pollutants. Consequently, environmental standards for overseas military bases must align with the Department of Defense’s environmental protection criteria. The Department of Defense is subject to oversight by the U.S. Congress, which monitors compliance with these standards.
B) Title 32 of the Code of Federal Regulations, Part 855:
Section 855.1 of the Code of Federal Regulations states that civilian aircraft operating from U.S. Air Force bases in foreign countries are subject to laws and regulations with extraterritorial effects and bilateral agreements with the host country. This provision suggests the applicability of U.S. national laws beyond its borders, including environmental laws like NEPA, CERCLA, and RCRA.
C) U.S. Air Force Policy Guide No. 32-70:
This policy guide outlines principles for maintaining an excellent environment and respecting environmental regulations. It encourages inspections of military operations worldwide to ensure adherence to environmental standards and requires correction of non-compliant sites. The guide emphasizes military operations and activities abroad and includes a commitment to reducing health and environmental risks associated with Air Force activities in foreign bases. Notably, it advocates striving for zero waste production by reducing hazardous material use and pollutant emissions. Therefore, it is essential for Gulf defense ministries and environmental agencies to ensure that stationed Air Force units adhere to these U.S. policies and Department of Defense guidelines.
Chapter Five: The Responsibility of the United States for Environmental Pollution in Host Countries' Military Bases and Beyond
The United States, like any other country, makes mistakes and achieves successes. Therefore, international legal principles must apply in this context. According to the rules of international responsibility, responsibility may be fault-based, meaning limited responsibility, or fault-free, meaning strict liability.
1) Fault-Based Responsibility:
This type of responsibility requires attributing fault to the state. In the context of this study, the use, transfer, or storage of hazardous toxic materials by U.S. military forces stationed at foreign bases, which results in environmental pollution, is considered a fault under international law and agreements prohibiting environmental harm. This is a violation of agreements with host countries if they include environmental protection conditions. Especially if such a fault causes damage to the natural environment around the military base and adjacent areas. Such violations are attributed to the U.S. Department of Defense, a federal agency, making the fault attributable to the United States itself. Environmental damage from the Iraqi forces burning oil wells and spilling crude oil in the Gulf during the Gulf War is an example where Iraq was held internationally responsible and compensated Kuwait for environmental damage. However, international responsibility systems do not always require proof of damage to hold a state liable for environmental harm (strict liability).
2) Strict Liability:
Strict liability, which does not rely on fault, is crucial for ensuring environmental protection from modern technological risks that cause legal harm. U.S. forces stationed in the Gulf may be bound by bilateral and multilateral international agreements, yet still cause severe environmental damage. Practically, the United States, due to its military, political, and economic dominance, often imposes its terms when signing agreements with host countries, thus shielding itself from potential legal accountability for environmental damage caused by its forces in the Gulf region. Thus, the theory of fault in international responsibility is absent. For instance, it is unrealistic to expect Kuwait, suffering under Iraqi occupation, to demand that the U.S. forces adhere to environmental standards while liberating Kuwait, or to prioritize environmental standards over military objectives. Similarly, Qatar would find it improbable to make such demands of U.S. forces stationed in Doha in the face of internal or external threats. However, it is conceivable that a technologically and environmentally advanced country might refuse to use technologies or combat techniques that could harm the environment, as the environment is an indivisible whole, and harming part of it impacts the whole.
Even if U.S. leadership lacks environmental sensitivity and prioritizes its interests over the global community's welfare, the U.S. is still obligated to refrain from actions that would damage the natural environment of military bases and surrounding areas. Otherwise, it would bear international responsibility without fault, as illustrated by the International Court of Justice's judgment in the Corfu Channel case between the United Kingdom and Albania, where Albania was held responsible for damage to the UK without relying on fault theory.
Consequences of Proving Responsibility Against U.S. Forces in the Gulf:
If responsibility is proven against international legal entities, it requires ceasing the harm, making reparations, restoring the situation to its previous state, or compensating. If U.S. forces are found to have transported, stored, or used materials harmful to the environment and natural resources, the U.S. must immediately halt such activities, such as stopping military exercises in nature reserves or coral reef areas. For one-time actions, like a secret nuclear test on the Mururoa Atoll, cessation cannot be applied retroactively; however, the commitment to not repeat such actions should be made.
Reparation could involve an apology, which might be acceptable for violations of diplomatic immunity. However, for environmental damage, apologies are inadequate. The environment is the actual victim, and apologies directed to the state do not address the real harm caused. For long-term environmental damage, an apology does not benefit future generations who will continue to suffer. For example, contemporary Japanese suffering from congenital disorders or health issues due to the atomic bombings of Hiroshima and Nagasaki do not benefit from apologies given to previous generations. Thus, restoring the situation to its previous state is the best form of reparation for environmental damage.
Restoring the situation to its previous state requires returning military base sites to their original condition before occupation, free from oil and leaks, and not used as hazardous waste dumps. The Canadian experience shows that the U.S. did not follow this practice, leaving sites without necessary cleanups and opting to pay compensation instead. Kuwait, for example, expects to receive the military base site in Doha as a springtime park, as it was before, as do other Gulf countries and citizens of countries with U.S. bases, who are deprived of enjoying the natural beauty of their lands.
Environmental compensation has become a standard in international law, especially after the UN Security Council held Iraq responsible for the environmental damage caused to Kuwait and the region. The UN Compensation Commission approved several environmental claims. The U.S. has also compensated for cleaning up its military sites in Canada. The U.S. established a national system through the Claims Center to handle environmental claims, reviewing 1,259 claims worth $25.8 million as of October 1990, due to environmental negligence by U.S. forces. Eighteen of these claims, valued at $21.8 million, resulted from improper handling, storage, and disposal of hazardous waste.
These financial compensations should cover the costs of cleaning and rehabilitating sites to become natural parks and address medical costs for those affected by the establishment of such bases, both current and future generations. The question remains whether such compensations are sufficient to deter a financially abundant country like the United States or if host countries should unite to prevent these bases unless they adhere to superior environmental standards, whether in the U.S. or the host country.
Conclusion:
Practical experience has demonstrated the dangers posed by materials used, stored, and transported by U.S. military bases in the Gulf. Therefore, environmental protection from these hazards is essential. Unfortunately, this protection must come from the source of these risks. In the absence of strong environmental legal incentives, our environment can only rely on U.S. environmental legal frameworks. U.S. environmental regulations emphasize the need to consider and enforce environmental protections for military activities outside the U.S. Thus, this support requires U.S. military forces to comply with American environmental laws regardless of whether their military activities are within or outside the U.S.
Host countries must require U.S. forces to conduct an Environmental Impact Assessment (EIA) before establishing a base and to conduct an environmental review after their mission ends, comparing it to the initial EIA and documenting the extent of environmental damage. They should then demand the rehabilitation of the site to its pre-base environmental condition.
If these forces damage the environment through their activities, they bear national responsibility under U.S. laws, alongside international responsibility. However, assigning international responsibility based on fault requires the U.S. to join more international agreements enhancing environmental protection and for host countries to insist on including environmental protection clauses in agreements for hosting U.S. bases.
Such agreements between the host and guest states could include provisions ensuring the guest state or base operator guarantees the rights of victims of environmental damage and provides appropriate compensation and environmental rehabilitation after military activities.
International organizations, like the United Nations, should play a role in these matters. Just as the UNMOVIC was established to inspect Iraqi weapons, there should be mechanisms for receiving complaints about environmental harm and inspecting sites by environmental experts to ensure compliance with environmental standards. The principle of sovereignty should not override the serious, long-term, and widespread environmental damage risks, as stated in Articles 35 and 55 of the 1977 Protocol Additional to the Geneva Conventions of 1949. In all cases, overcoming the unique nature of military bases through the establishment of an international body specializing in military environmental disputes is essential, ensuring rapid intervention to prevent environmental degradation and rehabilitate affected sites, even if it requires relocating the military base to less environmentally sensitive areas.
References:
Arabic Books:
1. Rashid Hamad Al-Anzi, *Public International Law: Special Studies on the Position of International Law Regarding the Iraqi Occupation of Kuwait*, 1997.
2. Dr. Omar Hassan Addas, *Contemporary Public International Law*, 2002.
Foreign Books:
1. Nada Al-Duaij, *Environmental Law of Armed Conflict*, SJD Thesis, Pace University, NY, 2002.
2. Stephen Dycus, *National Defense and the Environment*, 1996.
3. Suzan D. Lanier Graham, *The Ecology of War: Environmental Impacts of Weaponry and Warfare*, Walker and Company eds., 1993.
Arabic Journals:
1. Dr. Adel Asim, *Kuwaiti Environmental Claims before the UN Compensation Committee*, Paper presented at the conference "The Role of the Judiciary in Developing Environmental Law in the Arab Region," October 2002.
2. Dr. Omar Hassan Addas, *A Study in International Law on the Legal Dimensions of the Chernobyl Nuclear Accident*, *Journal of Fatwa and Legislation Management*, Issue 7, Seventh Year, 1987.
Foreign Journals:
1. Betsy Baker, *Legal Protections for the Environment in Times of Armed Conflicts*, 33 Va. J. Int’l L. 351, 1993.
2. Edward Ericson, *Recycling the Army Way: The Pentagon Uses Radioactive Waste as Armor and Bullets*, E/the Envtl Mag., March/April 1997, (visited Dec. 19, 1999)
