Started Case Study

The Environmental Marten’s Clause

(IUCN Amman Clause)

© Dr. Eisa Al-Enezy, Teacher of International Law & Dr. Nada Al-Duaij, Teacher of Environmental Law Kuwait Faculty of Law

The Marten’s Clause is regarded as the pillar of the International Humanitarian Law (IHL). It was originally designed to provide supplementary humanitarian protection to all civilians in times of armed conflict. The Marten’s Clause was first conceptulized in 1899, when there were relatively few agreed protocols and regulations on armed conflict. It then provided that unforeseen circumstances should not be trusted to the arbitrary and capricious judgment of military commanders, but rather, it should be governed by articulated rules, and unexamined situations do not assures their legality. Subsequently, the Marten’s Clause inspired environmentalists to create a comparable protection to the environment. In 2000, a century later after the initial vision, the World Conservation Union (IUCN) Amman Clause was adopted, in Jordan, to govern environmental matters. The “Amman Clause” Resolution as adopted by seventy-two nations, states that

“RECALLING that Recommendation 1.75 (Armed Conflict and the Environment), which was adopted by the 1st Session of the World Conservation Congress, endorsed the promotion of the Draft Convention on the Prohibition of Hostile Military Activities in Internationally Protected Areas; REAFFIRMING the awareness expressed in the World Charter for Nature that mankind is a part of nature and life depends on the uninterrupted functioning of natural system; ALSO REAFFIRMING that every form of lifes is unique, warranting respect regardless of its apparent worth to man; CONSIDERING the adoption of the 8th Preambular paragraph in the Hague Convention (IV) Respecting the Laws and Customs of War on Land (18 October 1907), which is also known as the Marten’s Clause, and which is reiterated in Article 1 (2) of the Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts; RECOGNISING the fundamental importance of The Marten’s Clause in providing a judicial standard governing the conduct of all persons in times of armed conflict in the absence of conventional law; REAFFIRMING the need for appropriate measures to protect the environment at the national and international, individual and collective, private and public levels; The World Conservation Congress at its 2nd Session in Amman, Jordan, 4-11 October 2000: URGES all United Nations Members States to endorse the following policy: Until a more complete international code of environmental protection has been adopted, in cases not covered by international agreements and regulations, the biosphere and all its constituent elements and processes remain under the protection and authority of the principles of international law derived from established customs, from dictates of the public conscience, and from the principles and fundamental values of humanity acting as steward for present and future generations.”

The adoption of IUCN Amman Clause was unanimously endorsed by the seventy-two States attended in the IUCN World Conservation Congress in Amman, Jordan, 4-11 October, 2000. The Marten’s Clause as cited above provides a foundation for all contemporary IHL, from its adoption for the first time in the 1899 Hague Convention, its iteration in the four Geneva Conventions of 1949, its reiteration in the 1977 Additional Protocol I and II to the Geneva Conventions, its inclusion in Resolution XXIII of the 1968 U.N. Conference on Human Rights, its revision in the 1980 Convention on the Prohibition or Restriction on the Use of Certain Conventional Weapons, and recently, its ultimate adoption by the IUCN Second World Conservation Congress, in Amman. In order to discuss IUCN Amman Clause, it is necessary to address the origin and the applicability of The Marten’s Clause, the expressions of dictates of public conscience employed by the clause, and the adoption of the IUCN Amman Clause.

1) The Origin and the Application of The Marten’s Clause

The Marten’s Clause is “based on paragraph 3 of the Declaration of June 20, 1899, and as read by Friedrich von Marten’s, the Russian delegate who chaired the 11th meeting of the Second Committee of the Second Commission on the occasion of the First Hague Peace Conference of 1899.” The idea of Martens Clause encourages other States, such as Belgium, to join the 1899 Convention despite the absence of certain Articles in question. Subsequently, The Hague Convention of 1899 with Respect to the Laws and Customs of War on Land and its revision of 1907 adopted the following text of The Marten’s Clause, and it has been included in the Preambular paragraph nine of the 1899 Hague Convention as follows: Until a more complete code of the laws of war has been issued, the high contracting Parties deem it expedient to declare that, in cases not included in the regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usage established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. The revised Hague Convention IV of 1907 also includes The Marten’s Clause in the Preambular Paragraph eight. The preamble of the 1899 and the 1907 Hague Conventions is considered a significant part of these conventions, whereby it exhibited the true will of the contracting parties to be bound by The Marten’s Clause. The Marten’s Clause of the 1899 and the 1907 Hague Conventions was adopted to protect and/or conspicously define the rights and responsibilities of two categories of persons: inhabitants and belligerents, who used to be the most victimized during armed conflicts. It does not cover the environment. It is, however, rather difficult to distinguish people from their intertwined surrounding environment, since any harm that may affect the environment will reflect on the people, as they need to live in a clean and healthy environment. Thence, the protection offered to inhabitants and belligerents by The Marten’s Clause will primarily safeguard their lives, and secondarily secure the livehood in the environment where they live. Such connections between civilians casualties and the environmental damage was confirmed by the Australian position towards the ICJ Consultative Opinion regarding the Legality of the Use or the Menace to use Nuclear Weapons of 1996. The Australian oral exposition provides that all there is a common proof of causation that the arms that have potentially detrimental effects on the environment and the civilians are not compatible with the requirements of the public conscience. The inclusion of The Marten’s Clause in the Preamble of the 1899 and the 1907 Hague Conventions provided a foundation for protecting inhabitants and belligerents directly, and in maintaining the environment indirectly. The Marten’s Clause reflects a basic principle of law, and as discussed earlier, since it is included in the preamble of an international treaty, The Clause binds to the contracting parties. Furthermore, as to the four Geneva Conventions of 1949, in order to restrict the impact of denouncing the Conventions states that: [T]he denunciation [of the convention] shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the principles of the law of nations, as they result from the usage established among civilized peoples, from the laws of humanity and the dictates of the public conscience. The denouncing party remains bound to fulfill obligations arising from the principles of the law of nations. Thus, the Marten’s Clause still binds even a country that denounces the Convention, in general terms. Moreover, unlike The Hague Conventions, the Geneva Conventions apply the protection of The Marten’s Clause generally, without any limitation to inhabitants and belligerents. This generality could offer the protection to the environment along with the protection of inhabitants and belligerents. In 1968, the Tehran Conference on Human Rights paraphrased The Marten’s Clause in Resolution XXIII, which stated that “inhabitants and belligerents are protected in accordance with the principles of law of nations derived from the usages established among civilized peoples, from the laws of humanity and from the dictates of the public conscience.” That text is similar to the text of the Geneva Conventions, except that it delimited, again, the protection of The Marten’s Clause to inhabitants and belligerents. In order to benefit from this text and protect the environment, this delimitation requires a nexus between belligerents or inhabitants and the environment, otherwise The Marten’s Clause will be incompetent to protect the environment. Thus its reach under this Resolution is more limited and less effective than it could be. Significantly, according to Marten’s Clause, the protection of inhabitants and belligerents will be seen as a short-term goal, while the environmental protection will be considered as a long term objective. Furthermore, the Additional Protocol I to the Geneva Conventions included The Marten’s Clause in Article 1 (2), which states that “in cases not covered by the Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.” A remarkable shift in The Marten’s Clause text was witnessed during the adoption of the 1977 Additional Protocol I, when the negotiators of this instrument replaced the term “usages” with “established custom,” which according to some international humanitarian experts may have deprived The Marten’s Clause of its coherence and legal logic. By such replacement, “the protocol conflates the emerging product (principles of international law) with one of its component parameters (established custom) and raises questions about the function, role, and necessity of the uncodified principles of humanity and dictates of public conscience.” However, it is not quite clear whether such conclusion was retroactively intended by the protocol’s negotiators. On the other hand, the Additional Protocol II of 1977 adopted The Marten’s Clause in its Preamble, which states that “in cases not covered by the enforced law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.” Protocol II did not distinguish between combatants and civilians, and it offers its protection for all human persons. Unlike all other documents, Protocol II did not refer to the international law, or the law of nations, as a source of The Marten’s Clause rules, which might be attributed to the fact that it deals with non-international armed conflicts. In extending its protection to internal armed conflicts, the Clause of Additional Protocol II guarantees basic rights to all people, regardless of the nature of the combat. It also extends protection against environmental and natural resources damage regardless of the nature of the combat and by any military or anthropogenic activities. Thus, it seeks to proactively cocetrate on and promote protection, rather than reacting on defacto the source of damage. Moreover, in 1980, The Marten’s Clause was been adopted by the Preambular paragraph V of the Convention on the Prohibition or Restrictions on the Use of Certain Conventional Weapons. This paragraph declares that the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. The inclusion of The Marten’s Clause in that document re-affirmed its meritorious significance importance again in protecting civilian populations and combatants as they are indeed considered integral part of the substantial part of the environment. This review of The Marten’s Clause makes clear that the evolution of the Clause has excluded large areas of environmental issues. For example, The Marten’s Clause just covers civilians and belligerents without any explicit reference to the environment or its components such as biodiversity, lithosphere, hydrosphere, and atmosphere which need to be protected in times of armed conflict as well. However, environmental protection principles may be derived from The Marten’s Clause indirectly, since protection of civilians seems necessarily to include protection of their environment and indispensable sources of sustenance, shelter and survival. The Amman Clause reaches that conclusion, and explicitly stipulates the Marten’s Clause to include environmental safeguards. The environment should be protected from war and any other hostilities.

2) The Dictates of Public Consciene

It is necessary to analyze the dictates of public conscience to address the following issues: the origins of general principles of international law, namely, The Marten’s Clause is a general principle of international law, or it is only soft international law, or only binding if in a treaty, and the same questions about the nature of The IUCN Amman Clause.
a) The Origins of General Principles of International Law
General principles of the international law, AKA as jus cogens, present a common foundation for the international legal system. Jus cogens norms are peremptory and thus have a magnificent status within international law. Jus cogens norms were defined by Article 53 of the Vienna Convention on the Law of Treaties of 1969 as the “norms recognized by the international community of states as a whole as norms from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” The Vienna Convention did not list specific jus cogens norms, because of the absence of an agreement on the content of these norms. Nevertheless, the International Court of Justice can determine whether a norm is considered a jus cogen or not, since according to Article 9 of the Court Statute it is the sole international court that has judges elected to represent all member countries. Thus, their decisions regarding the creation of general principles of international law will be recognized by all civilized nations. Moreover, jus cogens norms may not derive from the international legal system solely. National legal systems may serve as a rich source of these general principles of international law. Some international law experts believe that only the international legal system is a valid source of the general principles. Others believe that the general principles of international law should include general principles derived from national legal systems along with those of the international legal system in order to enrich the international law sources and treat all its lacunas. Further, Article 38 (1)(c) of the ICJ Statute states that general principles are those “recognized by civilized nations.” This Article sets forth the importance of national legal systems in providing general principles of international law. For instance, some juridical substantive principles such as the “pacta sunt servanda,” acquisition of rights, abuse of rights, and good faith, in addition to certain juridical procedural principles such as res judicata, and the equality of parties before the law that apply to the ICJ legal system were inspired by national legal systems. The jus cogens norms hold the highest hierarchical position in international law. As a consequence, jus cogens norms are deemed to be peremptory and non-derogable. However, subsequent to the definition of the general principles of international law, it is necessary to clarify why are they are binding. There exist two theories in which the jus cogens norms may find their foundation. The first theory is derived from the law of nature. The law of nature, natural law, is not a system of legal norms, but a system of ethical principles. According to this theory, the jus cogens norms find their power in the nature of their original source whether from international custom, from moral or religious principles, or from some combination of such factors. It may be believed that the traditional Marten’s Clause of 1899 emerged from the natural law, because it “recognized the existence of absolute ideals or principles higher than positive law.” Jus cogens norms, thus, may derive from moral or religious concepts prohibiting causing harm to people, and counseling peace, since man is an integral component of existence in the universe, and has as such a special but crucial role to play. For example, in Sharia, the Islamic law, the duty “of care and nurture for man’s good works are not limited to the benefit of the human species, but rather extend to the benefit of all created beings; and (there is a reward in doing good to every living thing).” Moreover, Islamic rules and principles prohibit torture and killing whether in times of armed conflicts or in peacetime. Such acts interfere with the mercy principle that Islam based on, as shown by the Prophetic Speech that “God will curse those who torture people.” Another such principle can be derived from the ancient Hindu India, where wars were to be fought according to “Dharma Yuddha, the rules of righteousness in war.” Civilian populations (non combatants) such as “those who look on without taking part in the fight, those afflicted with grief, those who have set their hearts on emancipation, those who are asleep, thirsty or fatigued, or are walking along the road, or have a task on hand unfinished, or are proficient in fine art,” were exempted from warfare atrocities. Significantly, the protection extended to include even combatants, who “should not be killed, including a warrior whose armour has fallen off, who has laid down his weapon, is mortally wounded, who is weak with wounds, or is fighting with another.” In fact, there are numeorus historical evidences in most societies wherby binational conflicts were settled on a one-on-one duel basis by tow individuals at a time. These religious principles offer unique protection to human life whether in times of armed conflicts or peacetime, combatant or civilian, and these same principles are reflected in the traditional Marten’s Clause. Natural law pre-exists treaties, and under the theory of natural law, thus gives the jus cogens norms power, even if they are not written in an international agreement. The power of jus cogens depends on the number of States that recognize a norm as a jus cogen. For example, to consider a norm as a jus cogens the consent of a large majority of States, reflecting the essential components of the international community, is required A state or a small group of states cannot veto the formation of jus cogens norms. Nonetheless, both the majority that consider them as jus cogens norms, and the minority that did not, are bound by the jus cogens norms. In the international law practice, the jus cogen norms can be created by few or minority of States, if these States present the power in the world. For example, the United States and the United Kingdom, created the norm of the “fight against terrorism” and outlined it to be used as an emergency law used to violate most of the other international law rules. However, the second theory is derived from the positive law. One of the positivists, Lassa Oppenheim, wrote in 1905 that “we know nowadays that a Law of Nature does not exist. The philosophy of the positive law has overcome the fanciful rules of the so-called Law of Nature.” According to this theory, jus cogens norms find their power in existing treaties, i.e. written law. Thus, party states are bound by the jus cogens norms integrated in the international conventions. However, such norms are applicable even against those states that have not accepted them.
b) Is The Marten’s Clause a General Principle of International Law?
To define whether The Marten’s Clause is a general principle of international law, and therefore a jus cogens, it is necessary to refer to the United Nations International Law Commission Report, which states that “there is no simple criterion to identify a general rule of international law as having the character of jus cogens.” Nonetheless, in order to develop a means of identifying jus cogen norms, Uhlmann, an international law expert, created four criteria : the norm should aim to protect the state community interests, it must have a foundation in morality, it must be of an absolute nature, and vast majority of states should accept it as a jus cogens. By applying these criteria to Marten’s Clause, it will appear that The Marten’s Clause is a well accepted general principle of international law.
The Marten’s Clause and the Protection of the State Community Interests
The Marten’s Clause does aim to protect State community interests, by seeking the protection of individuals or groups of individuals, specifically the belligerents or combatants and civilian populations. The protection of these groups serves the benefit of the community, by seeking to prevent harm to large segments of the population. Moreover, the ultimate purpose of the international legal order is to guarantee respect for human beings, which The Marten’s Clause seeks directly to promote. These positive goals are behind the pressure over governments to adopt Marten’s Clause, and there is not government can publicly stand against the adoption of such positive and humanitarian concept.
The Marten’s Clause and its Foundation in Morality
A moral norm generates obedience not because of a juridical intervention, but because of an internal convention incentive. A moral obligation is the impetus for the practice of the jus cogens norms, even if they were not adopted by an international convention. Consequently, the derogation of such moral obligation, even if it is not legally enforceable, is internationally condemned. This was the circumstance prior to 1899, the date of the first legal adoption of Marten’s Clause, when the combatants and the populations were not covered by any kind of legal protection, and morality was the only basis for humanitarian protection. At that juncture, the protection of civilians “can partly be explained by fear that the gods or the spirits of victims might wreak vengeance, or by a desire to restore normal relations with a neighboring tribe.” Other instances of humanitarian treatments were based on “justice and integrity,” or on a religion requirement, such as passages in the Bible. The Judeo-Christian and subsequently the Islam doctrines proclaimed that all men are created in the image of God -- that all men were children of the same father and all were offered eternal life. If all men were brothers then to kill one was a crime by the other, where there would be no more slaves. Nations follow this guidance by adoption of criminal laws establishing the act of killing as the crime of murder. In peacetime, the killer is imprisoned or even put to death on accasions. On the other hand, in wartime, a person who kills enemies on behalf of his country is considered a hero granted medals, and may be “immortalized in a statue or on a postage stamp.” Additionally, other religions had a great influence in the development of international law at the time of the first adoption of The Marten’s Clause (1899) as we discussed earlier.
The Marten’s Clause as an Absolute
A norm is absolute if it applies to all possible scenarios, international and internal, against member States that approved it and those who contest it, and is not be limited to the law of treaties but is also applicable to unilateral acts. A norm can be considered absolute if it applies at all times, in all places, and under all circumstances. This is the case with The Marten’s Clause, which is applicable in international conflicts governed by The Hague Conventions of 1899 and 1907, the four Geneva Conventions of 1949, the Additional Protocol I of 1977, and the Convention on the Prohibition or Restriction on the Use of Certain Conventional weapons of 1980. Moreover, The Marten’s Clause is applicable in situations of internal armed conflicts that governed by the Additional Protocol II of 1977. Thus, the clause applies both to internal and to international conflicts. The Clause applies both to actions by nations and by individuals. Moreover, the United Nations International Law Commission Draft Articles on State Responsibility maintained, in Articles 18, 29, and 33, a close relation between the concept of international crime in Article 19 and the violation of jus cogens norm. Thus, the Clause can be considered to have universal, or absolute, application.
The Vast Majority of States Have Accepted The Marten’s Clause
The vast majority of the States have accepted the Marten’s Clause throughout its historical now century long development. For instance, The Hague Convention on the Laws and Customs of War of 1899 has been accepted by forty-nine states, and The Hague Convention on the Laws and Customs of War of 1907 has been accepted by thirty-five states, the four Geneva Conventions of 1949 were being accepted by 186 states, the Additional Protocol I of 1977 has been accepted by 157 states, the Additional Protocol II of 1977 has been accepted by 150 states, and the Convention on the Prohibition or Restriction on the Use of Certain Conventional weapons of 1980 has been accepted by eighty four states. Most of the States apply the Marten’s Clause even if they did not use the same term, but they believe in it and call in most speeches that its contents should be considered in catastrophic situations. Thus, it can be concluded that the Marten’s Clause meets all four criteria, and therefore, it should be classified as a general principle of international law that has a jus cogen character.
c) Quasi “Soft” International Law
Soft law is refers to “(1) treaty provisions, capable of entailing legally-binding obligations, that are drafted in weak substantive terms, and (2) declarations, guidelines, standards, and other international materials adopted by States, intergovernmental organizations, or their organs that are not normative in character but which have some pre-or subnormative effect, usually on the immediate behavior of States or on the future formation of principles of customary international law.” However, traditionally, treaty law (hard international law,) is the primary source of binding international law. Nonetheless, soft law provides a form of international law that usually obtains more readily than in the case of treaties. Moreover, when a principle expressed in a soft law instrument, its character may not be exclusively “soft”. A soft law instrument can refer to a treaty or a general principle of law which is re-affirmed in a hard law instrument. For example, the Tehran Conference on Human Rights imported much of The Marten’s Clause in Resolution XXIII, as mentioned earlier. Further, some international environmental law experts note that soft international law can be a reflection of a vary well-accepted general principle of international law arising from the dictate of public conscience, and therefore a principle may be binding even though it is not in a treaty, such as the Stockholm Conference’s Principle 21, and The Marten’s Clause as well. Soft international law can also be a reflection of the duty that positivists would say is only advisory for the States, such as “the duty to restrain consumption of resources through avoiding waste.” Thus, IUCN’s Commission on Environmental Law found that as States debated the Draft Covenant on Environment and Development, the well accepted general principles of international law would be considered as “hard law,” while the reflection of the duty remains “soft law.” On the other hand, the draft Covenant contains three types of provisions: “(a) those which consolidate existing principles of international law, including those ‘soft-law’ principles which were considered ripe for ‘hardening’; (b) those which contain very modest progressive developments; and (c) those which are more progressive than in (b) which we felt were absolutely necessary.” The international community often turns to soft law in order to develop international environmental law. For instance, Charles Di Leva, an international environmental specialist, provides a significant example when stating that when “a native Indian tribe filed a civil action in a Nicaraguan court, they claimed that the World Bank’s policy, [which reflects soft international law], on the territorial rights of indigenous people supported their request that the court require government action on their behalf.” Such reliance on soft law within a national jurisdiction may help in recognizing soft law in state practice, and therefore, it may become binding international law. However, even documents approved at the highest level of the United Nations acknowledge that “the boundaries of positive law (or between ‘law’ ‘and pre-law’ or ‘soft law’) cannot always be clearly defined.” In sum, it can be argued that The Marten’s Clause is a reflection of a very well-accepted general principle of international law arising from the dictates of public conscience, and therefore The Marten’s Clause itself is binding even though it is not in a treaty. Moreover, since the traditional Marten’s Clause and its iteration were included in international treaties, as discussed earlier, its binding character as a jus cogen norm should be respected by the international community.
3) The Nature of the IUCN Amman Clause
Like the traditional Marten’s Clause adopted in the 1899 Hague Convention, the IUCN Amman Clause is a general principle of international law that has jus cogens character. The IUCN Amman Clause has a duplicate nature. On one hand, it was adopted by the IUCN, an intergovernmental organization, as a resolution that was not included in an international treaty. In addition, the IUCN Amman Clause is a reflection of a genuine well-accepted general principle of international law arising from the dictates of public conscience, and therefore it is binding by itself even though it is not included in a treaty. No single treaty includes The IUCN Amman Clause. Some aspects of the principle are found in treaties, such as the Convention on the Prohibition of Military or any Other Hostile Use of environmental Modification Techniques (ENMOD) of 1976, and the Additional Protocol I to the 1949 Geneva Conventions of 1977, but not expressed as fully or completely as in Amman. Both ENMOD and the Additional Protocol I are applicable in wartime exclusively, while The IUCN Amman Clause can be applied both in times of armed conflicts and peacetime as well. Thus, the IUCN Resolution is in its form considered a soft international law. On the other hand, the IUCN Amman Clause arises from a general environmental law principle, which is the right to a clean and healthy environment for present and future generations, as expressed in Principle 21 of the Stockholm Declaration, and Principle 2 of the Rio Declaration. The inclusion of that right in these declarations reflect that it is a well accepted general principle of international environmental law, which is the responsibility of not to harm other States environment. For instance, Principle 21 of the Stockholm Declaration has been relied upon “by governments to justify their legal rights and duties.” Similarly, the Philippines Supreme Court in Minors Oposa v. Secretary Of the Department of Environment and Natural Resources found that the Philippines Constitution, and natural law, required the government to preserve a balanced and healthful environment for children and future generations. Remarkably, the Court stated that although the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies [in the Constitution of the Philippines] and not under the Bill of Rights, it does not follow that it is less important than any other of the civil and political rights enumerated in the letter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation – aptly and fittingly stressed by the petitioners – the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of mankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generations, but also for those to come – generations which stand to inherit nothing but parched earth incapable of sustaining life. That decision affirms that the right to live in a healthy environment is a basic right and pre-exists any constitution. Thus, the environmental protection is confirmed by natural law prior to any positive law. In sum, the IUCN Amman Clause is binding from two sides, first as a soft international law that reflects a well-accepted general principle of international law arising from the dictates of public conscience, and second as general environmental law principle which has existed the inception of mankind, however, both mankind. Therefore, humanitarian protection cannot be brought into fruition without real environmental protection.
The Adoption of the IUCN Amman Clause
Recently a clause inspired by The Marten’s Clause was adopted unanimously by seventy-two States, ministries, and NGO’s assembled in the Second World Conservation Congress held in Amman, Jordan, 8-11 October 2000 to govern armed conflict and environmental matters. The IUCN Amman Clause states that: Until a more complete international code of environmental protection has been adopted, in cases not covered by international agreements and regulations, the biosphere and all its constituent elements and processes remain under the protection and authority of the principles of international law derived from established customs, from dictates of the public conscience, and from the principles and fundamental values of humanity acting as steward for present and future generations. The IUCN Amman Clause was drafted by the Commission on Environmental Law (CEL) members, Dinah Shelton, Professor of Law, Notre Dame University and Alexander Kiss, President of the IUCN Scientific Committee (CIEL). The IUCN Amman Clause was sponsored by: -The International Commission for the Protection of Alpine Regions, Liechtenstein. -Schutzgemeinschaft Deutscher Wald Bundesverband, Germany. -Vereiningung Deutscher Gewässerschutz (VDG), Germany. -Berhm Fonds Für Internationalen Vogelschutz, Germany. -Verband Deutscher Sportfisher, Germany. Te draft resolution of the IUCN Amman Clause was forwarded to the representatives of the Amman Congress, in order to have their opinions and comments. For example, in the case of the U.S.A., it was forwarded to Washington D.C. for review by several agencies, headed by the Department of State, which had no objection on it. Later, the resolution was presented to the plenary meeting of the IUCN Congress which was headed by the IUCN President, the IUCN Director General, and the IUCN Legal Advisor, and was adopted by consensus. The IUCN Amman Clause is unlike the traditional Marten’s Clause because The Marten’s Clause focused on environmental protection only during wartime. The Amman Clause, in contrast, applies in times of armed conflicts as well as peacetime. The text of The Marten’s Clause specifically noted that it was intended to apply “until a more complete code of the laws of war has been issued.” Thus, it was designed as part of a wartime code, and meant to apply only in times of armed conflict. On the other hand, the IUCN Amman Clause text articulated that it was intended to apply “until a more complete international code of environmental protection has been adopted,” which reflects the drafters’ intention to promote environmental protection, both in peacetime and times of armed conflicts as well. The Amman Clause reflects the fact that environmental destruction may result from military activities in peacetime. For example, military sites and bases generate huge amount of toxic and hazardous wastes; military testing, storage, and stockpile of ammunitions, and military maneuvers can result severe environmental impacts even during peacetime. Consequently, the Amman Clause sought to guarantee the same environmental standards under all conditions. Further, civilian activities may be considered a real threat to the environment. Particularly in developing countries, environmental concerns may attract little attention, and many activities may degrade the environment, e.g., deforestation, desertification, the increasing use of greenhouse gases which deplete the Ozone Layer, disposing of raw sewage or industrial waste in water bodies, and the overuse of farmlands which may affect the topsoil. All the above activities can affect environmental resources even when they are not owned by a specific nation or country, and what affects one country can affect others as well. Accordingly, it was important to adopt the IUCN Amman Clause to provide both peacetime and wartime environmental protection. Further, the IUCN Amman Clause urges the U.N. member states to adopt a comprehensive international code of environmental protection. Such a code would address environmental matters not governed by existing international environmental laws, or by laws that do not provide real environmental protection. For example, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques does not include peacetime environmental modification techniques. However, military activities and operations even in peacetime may cause long-lasting, widespread, or severe environmental effects, and these operations are not covered by the Convention. The Amman Clause would seek the provide protection in those circumstances, although it does not set forth specific criteria for doing so. In attempting to begin the formulation of a comprehensive code of environmental protection the Amman Clause goes far beyond the Marten’s Clause from which it sprang. While the Marten’s Clause mentioned environmental concerns only as a small part of its focus on the regulation of war, the Amman Clause focuses directly on the environment. That fact certainly reflects the increased global awareness of the importance of environmental concerns. Last but not least, Amman Clause does not consider the present generation only, but future generations as well. The Clause specifically refers to the “…fundamental values of humanity acting as steward for present and future generations.” That language reflects the fact that environmental harm may take decades to be repaired, and even if it is repaired, the natural resources may lose their original values. As a result, humans will suffer and bear the burden of such degradation. Not only will the present generation suffer, but future generations as well. Significantly, the IUCN Amman Clause was adopted by both environmental ministries and NGO’s, and its hybrid status is considered unique among international instruments. Moreover, according to the United Nations General Assembly resolution 50/195 of 17 December, 1999, the IUCN is participating in the work of the U.N. General Assembly as an observer. The consensus needed for the IUCN Amman Clause is somewhat limited. The IUCN Amman Clause is “soft international law,” if it is viewed as merely a declaration, and is not binding. However, if it is a general principle of law arising from the “dictates of public conscience,” then it is binding. The effect of the IUCN Amman Clause depends on each state separately. For example, an the national level, most of the representatives have to engineer a long chain of initiatives to convince their national governments about the importance and the necessity of adopting the IUCN Amman Clause. Some of the NGO’s delegations can bring great pressure on their governments, which may result in a national adoption of the IUCN Amman Clause. However, non-members now need to press their defense ministries to honor the IUCN Amman Clause. In sum, for all the above mentioned reasons, the international community, represented by the seventy two States that attended the IUCN Congress, adopted the IUCN Amman Clause, which will offer great environmental protection by itself and will pave the way for additional environmental protection. Under the Clause, States are required to apply the international minimum standard of environmental protection derived from principles of international law, the laws of humanity, and the dictates of the public conscience in peacetime and during armed conflicts as well. Therefore, there will be no more excuse for the destruction of the environment and the natural resources, in peacetime and in times of armed conflict. Any act of violence committed against the natural environment and not covered by a hard law, it is subject to the soft law, specifically the IUCN Amman Clause. However, in this stage of construction, it is required from the environmentally friendly States, the ICRC, the IUCN, and all the environmental organizations to evoke the application of the IUCN Amman Clause each time such application could have place, which will stabilize and found the routes of such concept.
Conclusion
The IHL is a continiously developed field of law. Inclusion of the environment, through Articles 35 and 55 of the Additional Protocol I to the Geneva Conventions of 1949, as part of the IHL requires more consideration of the environmental protection during armed conflicts. Adopting the IUCN Amman clause is the right step towards environmental awareness during armed conflicts. The legal force of the IUCN Amman clause is based on the fact that it has been approved unanimously. Accordingly, IUCN Amman Clause does not bind voting States only, but even non-voting States. Therefore, all States, without exception, should consider the environment during their armed conflicts. However, if environmental damage is inevitable matter, combattants should minimize the environmental damage to the lowest possible level. It is always necessary to activate the environmental protection’s rules, such as IUCN Amman Clause, by creating a controling body to investigate any complain against a combattant that cause environmental harm during armed conflict. This body should have the power to access into combat fields, and have the environmental expertize and resources to fill in a pure environmental mission. The IUCN is the most experienced body that may fill in this task. But, it cannot play this role unless a soecialized multelateral treaty provide it with such powers.

  • Date
  • Client
  • Category
  • Share
To Top