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Commentary - Basic rules
    [p.389] Article 35 -- Basic rules


    [p.390] Paragraph 1 -- Methods or means of warfare: no unlimited right

    ' Introduction '

    1382 The principle contained in this paragraph reaffirms the law in force. Whether the armed conflict concerned is considered by the protagonists to be lawful or unlawful, general or local, a war of liberation or a war of conquest, a war of aggression or of self-defence, limited or "total" war, using conventional weapons or not, the Parties to the conflict are not free to use any methods or any means of warfare whatsoever.

    1383 With reference to its basis in international law, it was Grotius in his work ' De iure belli ac pacis, ' published in 1625, who demonstrated the necessity of ' temperamenta belli, ' of imposing limitations on the destructive power of weapons to be used (at that time Europe was plunged in the horrors of the Thirty Years" War, which had all too often been waged as a "total war"). This principle undoubtedly had its opponents between 1625 and 1907, but it was never actually contested. The Hague Regulations of 1907 repeat this principle in Article 22 in the following form: "The right of belligerents to adopt means of injuring the enemy is not unlimited". The necessity of reaching complete agreement on this essential basic principle before any attempt could be made at formulating specific regulations was obvious to the members of the Conference of 1907.

    1384 In 1965 the XXth International Conference of the Red Cross considered it necessary to reaffirm this principle ("the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited", Resolution XXVIII). This proposition was taken up again by the United Nations General Assembly on 13 January 1969 in a slightly different form (Resolution 2444 (XXIII)), (1) which was actually closer to the text finally adopted by the Diplomatic Conference. The latter did not contest the proposition submitted on this point by the ICRC, (2) but it slightly modified the wording of it after a number of proposals and amendments were made, (3) finally returning to the "English version". These modifications did not change the basic intent. (4) The proposal of making this paragraph into a separate article reveals the importance that was attached to it. The title, "Basic rules", was introduced by the Conference. (5)

    [p.391] 1385 Contrary to what some might think or wish, in law there are no exceptions to this fundamental rule. If one were to renounce the rule, by which Parties to the conflict do not have an unlimited right, one would enter the realm of arbitrary behaviour, i.e., an area where law does not exist, whether this was intended or not. It is quite another matter to determine the actual scope of the principle, and the specific rules and practices implied by it, which may differ with the times, depending on the prevalent customs and treaties. These variations do not affect the principle itself but its application.

    ' The pretext of the so-called "Kriegsraison" '

    1386 A number of different theories, of which some are still in existence, seek to contest the validity of the rule as such, i.e., the rule contained in the paragraph under consideration. The best known of these, though it is now out of date, was expressed by the maxim "Kriegsraison geht vor Kriegsmanier" ("the necessities of war take precedence over the rules of war"), or "Not kennt kein Gebot" ("necessity knows no law"). These maxims imply that the commander on the battlefield can decide in every case whether the rules will be respected or ignored, depending on the demands of the military situation at the time. It is quite obvious that if combatants were to have the authority to violate the laws of armed conflict every time they consider this violation to be necessary for the success of an operation, the law would cease to exist. (6) Law is a restraint which cannot be confused with more usages to be applied when convenient. The doctrine of "Kriegsraison" was still applied during the Second World War. (7) It is possibly the uncertainty as to the applicability of the Hague law in conditions which had changed considerably since 1907 that contributed to this to some extent. However, it is probable that the resort to this doctrine was above all based on contempt for the law, the weakening of which is may be characteristic and a danger of our age. (8) "Kriegsraison" was condemned at Nuremberg, (9) and this condemnation has been confirmed by legal writings. One can and should consider this theory discredited. It is totally incompatible with the wording of Article 35 , paragraph 1, and with the very existence of the Protocol.

    ' A state of necessity '

    1387 The second obstacle placed in the path of this provision is more serious. It is related to the state of necessity, which is different from the valid doctrine of military necessity which will be examined below. The argument runs like this: the laws of war no longer apply in the case of a state of emergency affecting the very [p.392] existence of the nation ("Staatsnotstand"), i.e., there is a genuine right to ensure the preservation of the State, which may be exercised when conditions are such that no remedy is available, except by the violation of the laws of war, and to be decided, not by military commanders, but by the highest government authorities. (10) In its work on State responsibility and the state of necessity, a report of the International Law Commission comes to the conclusion that there are no situations which have the effect

    "of precluding the wrongfulness of State conduct not in conformity with one of the rules of the law of war which impose limitations on the belligerents regarding the means and methods of conducting hostilities between them, the general purpose being to attenuate the rigours of war" (para. 28).

    The International Law Commission considers that a state of necessity cannot be invoked as a reason for eliminating the unlawful nature of conduct against "obligations arising out of peremptory norm of international law, i.e., norm from which no derogation is permitted and which can be modified only by subsequent norms of general international la having the same character" (para. 37). (11)

    1388 It is quite probable that there has been a tendency for war to be conducted, at least to some extent, in conflict with these principles. The ' tabula rasa ' doctrine, which was put forward by those who considered that the Second World War had left neither rules nor principles behind it, cannot be explained in any other way. (12) This obstacle should be taken seriously, but we are not concerned here with pursuing the examination of this problem any further. However, it does not seem that this doctrine went so far as to repudiate either the Geneva Conventions themselves or the Martens clause. (13) It is precisely because this sort of situation threatens everything, including the interests protected by the Geneva Conventions, that an effort was made in the Protocol to reaffirm and develop the law applicable to armed conflict. In other words, the principle which states that the Parties to the conflict do not have an unlimited right was contested in the name of total war. The Protocol answered by declaring that the negation of this principle is incompatible with the preservation of civilisation and humanity, and this is in fact the real issue.

    ' Military necessity '

    1389 Though the principle is clear, the concepts which result from it require some explanation. The law of armed conflict is a compromise based on a balance between military necessity, on the one hand, and the requirements of humanity, [p.393] on the other. It is customarily expressed in the form of prohibitions which take military necessity into account. Military necessity means the necessity for measures which are essential to attain the goals of war, and which are lawful in accordance with the laws and customs of war. (14) Consequently a rule of the law of armed conflict cannot be derogated from by invoking military necessity unless this possibility is explicitly provided for by the rule in question. Conversely, when the law of armed conflict does not provide for any prohibition, the Parties to the conflict are in principle free within the constraints of customary law and general principles. This is specified in Article 1 ' (General principles and scope of application) ', paragraph 2, of the Protocol, when it states that:

    "In cases not covered by this 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 the dictates of public conscience."

    This is the Martens clause, which was already contained in essentially the same form in the Preamble of Hague Convention IV of 1907. In other words, when the Parties to the conflict do not clash with a formal prohibition of law of armed conflict, they can act freely within the bounds of the principles of international law, i.e., they have the benefit of a freedom which is not arbitrary but within the framework of law. When they come up against a formal prohibition, they cannot invoke military necessity to derogate from it. When this possibility is explicitly provided for, the Parties to the conflict can only invoke it to the extent that it is provided for.

    1390 This principle and these concepts are meant to be applied in practice. This is almost always where the difficulties begin. It has been argued that the principle is clear but the concepts are vague. (15) As to these concepts, an effort was made to clarify them in the preceding lines. Others have said that the principle is basic, but it needs to be elaborated; methods and means which strike indiscriminately must be further circumscribed, and this also applies to weapons, environmental factors and terrorism. (16) It is quite clear that these clarifications have above all been given by the rules of the Protocol itself, beginning with the two other paragraphs of Article 35 examined here, which are aimed at the prohibition of superfluous injury or unnecessary suffering and severe damage to the natural environment; these will be examined below. However, it is appropriate to begin by remarking that the text does not contain a prohibition on specific weapons. This might seem unusual at a time when all questions, whatever their nature, end by posing a technical problem. It is not surprising, therefore, that the subject was debated for a long time, from the time of the preliminary draft and throughout [p.394] the Conference itself, (17) but it is a fact that the Protocol does not contain a single formal prohibition concerning a specific weapon. This means that even more importance must be attached to the general principles, particularly to the rule of paragraph 2 of the article concerned here, which prohibits superfluous injury and unnecessary suffering. The same applies, of course, to a proper understanding of "military necessity" when the Protocol alludes to it. In fact, this was a criticism which had already been made of the 1949 Geneva Conventions. By repeatedly allowing expressions such as "if possible", "as far as possible" and exceptions based on military considerations, whether they are considered to be "urgent", "absolute" or simply "necessary", one introduces an element of uncertainty and risks arbitrary behaviour. In this respect the 1949 drafters replied that without these concessions, which take reality into account, it would never have been possible to arrive at such detailed texts and at provisions which were so favourable to the victims of war. According to Max Huber, the objection has sometimes been raised:

    "that provisions which take reality into account are at risk of becoming a source of reciprocal accusation for the belligerents or a pretext for questioning all laws of war; but this will not be the case if the Conventions combine a high moral tone with a sense of reality". (18)

    On the other hand, he admits that:

    "there is no branch of law in which complete clarity is more essential than in that of the laws of war, for in this field allegations of violations of the law are particularly difficult to settle by means of juridical and peaceful procedures. This is because practical and psychological conditions in wartime are opposed to an impartial and swift appraisal of the facts". (19)

    1391 Yet "the consensus procedure, which is in itself useful, always has certain limitations. The agreement of the Parties is often only reached at the cost of the clarity and precision of the text". (20)

    1392 The lack of clarity frequently conceals more or less unadmitted "military necessities". However, if the rule of Article 35 , which is discussed here, is not to become a dead letter, it is necessary to determine its scope. In other provisions, the rule may be perfectly clear, but containing a safety clause, depriving it [p.395] precision. (21) "Have confidence in the wisdom of the generals" (22) was the only solution to limit the injury and suffering of war entertained by a number of authors following the Second World War. (23) But it is not the solution which was chosen by the international community, as evidenced by the existence of the Protocol, and there is absolutely no reason to go back on this choice.

    1393 Having said this, it is important that generals and all combatants who have to interpret matters left to their discretion as a result of recourse to military necessity, do so wisely. Good faith is not a virtue which is the exclusive attribute of the interpreters of the law, but is also imposed on those who enjoy a certain degree of freedom of action in the field, even though the heat of battle does not favour an objective view of things. This is also the place to recall that the Martens clause, which is included in Article 1 ' (General principles and scope of application), ' paragraph 2, of the Protocol, automatically applies from the moment that a specific rule is questioned as a result of a discretionary clause. Even though the Parties to the conflict may only be bound within the limits of "what is practicable" in a particular case, they will never be exempted from fundamental humanitarian requirements.

    1394 Moreover, in certain countries the very concept of military necessity has assumed a relatively well-defined form, not only on the basis of legal theory, but also on the basis of case-law. Born of necessity, often by improvisation, the laws of war derive their permanent source from these constraints ("temperamenta"). Those matters which were left to discretionary clauses based on military necessity were those which could not be regulated; and matters which are not regulated provide a field for the law to develop. This is stated explicitly in Article 45 of the first Convention of 1949, which lays down that unforeseen cases are to be provided for by the Commanders-in-Chief in conformity with the general principles of the Convention. (24) Undoubtedly the well-known statement by Lauterpacht could also apply to these unforeseen cases. He stated that "the law on these subjects must be shaped -- so far as it can be shaped at all -- by reference not to existing law but to more compelling considerations of humanity, of the survival of civilisation, and of the sanctity of the individual human being", (25) though writing this, he was thinking in broader terms and was referring to the conduct of hostilities in general.

    [p.396] 1395 However, apart from these basic considerations, it is possible to detect elements which define the concept of military necessity even more clearly. This concept can, in exceptional cases, and only in those where it has been explicitly provided for, justify a certain degree of freedom of judgment, though it can never justify a degree of violence which exceeds the level which is strictly necessary to ensure the success of a particular operation in a particular case. (26) This rule is sometimes expressed by the maxim which states that necessity is the limit of legality. Any violence which exceeds the minimum that is necessary is unlawful and it is on this principle that all law relating to the conduct of hostilities is ultimately founded. This principle is expressed in specific rules in the Protocol, but it does not govern only these specific rules. Its scope also extends to situations which are not covered by these rules. This is a direct consequence of the principle which states that the Parties to the conflict do not have an unlimited right.

    1396 An American writer has attempted a more precise definition with particular reference to the case law:

    "Military necessity is an urgent need, admitting of no delay, for the taking by a commander, of measures which are indispensable for forcing as quickly as possible the complete surrender of the enemy by means of regulated violence, and which are not forbidden by the laws and customs of war." (27)

    Thus this definition is based on four foundations: urgency, measures which are limited to the indispensable, the control (in space and time) of the force used, and the means which should not infringe an unconditional prohibition.

    1397 Another definition in very general terms is given as follows: military necessity constitutes "the right to apply that amount and kind of force which is necessary to compel the submission of the enemy with the least possible expenditure of time, life and money". (28) However, this description has the disadvantage that it does not in fact take into account the paragraph of Article 35 with which we are concerned, and therefore it cannot stand on its own. Moreover, it should be quite clear that the requirement as to minimum loss of life and objects which is included in this definition refers not only to the assailant, but also to the party attacked. If this were not the case, the description would be completely inadequate. Finally, it is important to realize that this formula is normally applied purely and simply as a result of respect for the rules of the Protocol, since these rules encompass all considerations of military necessity. (29)

    [p.397]
    ' Limits on the exception of reprisals '

    1398 Obviously these principles and the rule contained in Article 35 , paragraph 1, cannot be nullified by reprisals. This above all because reprisals are prohibited in the majority of cases. The Geneva Conventions prohibit them purely and simply against persons protected by these Conventions. (30) The Protocol prohibits them in Articles 51 -56, against civilians, civilian objects, cultural objects and places of worship, objects indispensable to the survival of the civilian population, the environment and the works and installations containing dangerous forces, as well as all those persons and all the objects which are protected in Part II (the wounded, sick and shipwrecked, medical and religious personnel, medical units and transports, Article 20 -- ' prohibition of reprisals). ' Thus, according to the Protocol, reprisals are no longer authorized, except in the conduct of hostilities, and even then they cannot be carried out arbitrarily. The following are principles of customary law that apply to the execution of reprisals: the evident failure or manifest impracticability of any other solution, prior and express warning that reprisals will be carried out if the violation does not cease, the decision to be taken at the highest governmental level, the means to be proportional to the offence in question, and immediate interruption when the offence has stopped. (31) These conditions only serve to confirm the validity and the intangible character of the principle contained in Article 35 .

    ' Questions of terminology '

    1399 With regard to the terms used, there are no particular difficulties. In the first place it should be noted that the rule is formulated, as is often the case in Part III, in the present tense, without further explanation or specific prohibitions. This means that the text merely lays down the rule, independently of the conditions of application. (32)

    1400 The expression "Parties to the conflict" replaced the term "belligerents" used in the Hague Regulations, but the term is commonly used in the Geneva Conventions. Moreover, the term "belligerents" dates back to a time when war was still considered as a recognized method of resolving differences which arose between nations. This is no longer the case today, even though all too often the international community is unable to prevent it.

    [p.398] 1401 The Conference preferred the term "methods and means of warfare" to the term "methods and means of combat", which was used in the ICRC draft, (33) "for the reason that "combat" might be construed more narrowly than "warfare"." (34) It is clear that the term "warfare" encompasses "combat", a term that is used occasionally in the Protocol. (35)

    1402 The words "methods and means" include weapons in the widest sense, as well as the way in which they are used. The use that is made of a weapon can be unlawful in itself, or it can be unlawful only under certain conditions. For example, poison is unlawful in itself, as would be any weapon which would, by its very nature, be so imprecise that it would inevitably cause indiscriminate damage. It would automatically fall under the prohibition of Article 57 ' (Precautions in attack), ' paragraph 2(a)(ii). However, a weapon that can be used with precision can also be abusively used against the civilian population. In this case, it is not the weapon which is prohibited, but the method or the way in which it is used. (36)

    ' Statements '

    1403 The Conference adopted Article 35 by consensus. However, at the time that it was adopted certain countries expressed an opinion either to say that paragraphs 1 and 2 constitute a reaffirmation of customary law, (37) as codified in The Hague, or to indicate that they would have abstained if it had been put to a vote. (38) One country joined the consensus on the understanding that: "the basic rules contained in this article will apply to all categories of weapons, namely nuclear weapons, bacteriological, chemical or conventional weapons, or any other category of weapons". (39) [p.399]

    ' Conclusion '

    1404-- The principle which states that the right of the Parties to the conflict to choose the methods and means of warfare is not unlimited implies principally the obligation to respect the rules of international law applicable in case of armed conflict.

    1405-- Military necessity cannot justify any derogation from rules which are drafted in a peremptory manner. On the other hand, military necessity does give military commanders some freedom of judgment if, and only if, this is explicitly provided for in the Protocol, as well as in unforeseen cases or when the applicable rules are very unclear.

    1406-- Military necessity is limited to measures which are essential to ensure the success of an operation that is planned, and are lawful according to the other rules of the Protocol, or of international law applicable in the particular case. It is always subject to the Martens clause (Article 1 -- ' General principles and scope of application, ' paragraph 2).

    1407-- To the extent that they are not prohibited by the Protocol, reprisals are governed by customary law and therefore do not confer an unlimited right.

    1408-- The Protocol does not impose a specific prohibition on any specific weapon. The prohibitions are those of customary law, or are contained in other international agreements.

    1409-- The rules of the Protocol must be interpreted in good faith at every level.

    Paragraph 2 -- prohibition of superfluous injury or unnecessary suffering

    ' Preliminary remarks '

    1410 Warfare entails a complete upheaval of values. (40) In war, law, the governing element in social order, is replaced by force. In the majority of cases it turns men who are destined to live normally and achieve, into wounded soldiers, prisoners, oppressed persons or even corpses. In fact, this was the reason for the founding of the Red Cross. It is the Red Cross which takes up the challenge of these outrages perpetrated by men against their fellow men. It is the Red Cross whose prime concern is man's suffering at the very moment that men are desperately engaged in their task of destruction. However, the development of the techniques of war has caused the Red Cross to wonder if it will be able to concern itself much longer with effects to the exclusion of causes. At the start of the Conference a delegate remarked that "what was more important than seeking to improve the condition of the wounded was to restrict the use of weapons which caused unnecessary suffering or had indiscriminate effects". (41) The ICRC was perfectly aware of this. The expression, "the reaffirmation and development of international humanitarian law applicable in armed conflicts" corresponded to the new situation, and indicated that in future the development of humanitarian [p.400] law should be conceived and undertaken on a wider scale, (42) although this does not mean that all the necessary attention should not be paid to the Geneva Conventions. The Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, submitted to all governments by the ICRC in 1957, had the sole aim of reducing the suffering of the civilian population. This is now the basic aim of the Protocol itself. However, the memorandum sent to all governments by the ICRC, on 25 May 1967, on the protection of the civilian population against the dangers of indiscriminate warfare, emphasized another matter -- that of the combatants. It was not only concerned with saving those who did not participate in the hostilities, but also with avoiding any injury or suffering of the combatants in excess of that necessary to put the enemy ' hors de combat. ' The ICRC quoted a clause from the Preamble of the St. Petersburg Declaration of 1868, whilst expressing its regret that this was virtually ignored. This clause, which is still applicable, envisages that governments will in due course seek an understanding:

    "whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the armament of troops, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity".

    Finally, in the preliminary papers for the Conference, the ICRC referred to the principles which in its view impose the obligation on the belligerents to abstain from the use of arms:

    - of a nature to cause superfluous injury or unnecessary suffering;
    - which, because of the imprecision or their effects, will indiscriminately affect the civilian population as well as the combatants;
    - of which the harmful effects will escape the control, in space or in time, of those using them. (43)

    1411 At the beginning of the first session of the Conference of Government Experts in 1971, the ICRC was already quite convinced that, from the point of view of humanitarian law, it would be difficult today to make provisions only with regard to the care to be given to the wounded and the sick, or even only to formulate rules of protection. It has become necessary to deal with the means which are available to the combatants. Article 35 , paragraph 2, has this sole aim, although it merely announces the principle without detailing any specific points. The object of combat is to disarm the enemy. Therefore it is prohibited to use any means or methods which exceed what is necessary for rendering the enemy ' hors de combat. ' This rule is the corollary to paragraph 1, which denies an unlimited right to choose the means to harm the enemy. Neither the combatants nor the Parties to the conflict are free to inflict unnecessary damage or injury, or to use violence in an irrational way. All in all, this is the position adopted by the ICRC.

    [p.401] 1412 However, the history of weapons is above all dominated by the contest between projectile and armour, between mortar fire and fortification. The discovery of a new means of attack leads to the introduction of a new means of defence, which in turn provokes the introduction of an even more powerful projectile. This course of events has been taking place since time immemorial. The battlefield of armaments is now littered with weapons that have disappeared because they are either obsolete or they have been improved upon. In our time this evolution of the means used in attack and defence has developed with a dizzying speed, and to guard against this "deterrence" is resorted to, which is significant. Historically, when particular weapons disappeared, this was because they were replaced by others. There are very few exceptions to this rule, though certain weapons were rejected because they had a double-edged effect of endangering those who were using them, as well as those against whom they were used. Bacteriological weapons are an example of this.

    1413 However, it is equally true that there have been a number of attempts in the past aimed at prohibiting certain weapons for disinterested humanitarian motives or, at least, for motives alleged to be such. These attempts did not have the desired effect, possibly because this would have consolidated definitively the superiority of certain categories of individuals over others. Means as simple as the bow and arrow or the crossbow, or as sophisticated for the time of the European Middle Ages as gunpowder, became temporarily subject to prohibitions. Nevertheless, they were used and have contributed to the disintegration of an outdated social order. This makes it difficult to pass judgment. There are the weapons of the poor and the weapons of the rich, the weapons of the attackers and those of the defenders; the problem is indeed complex.

    ' The Declarations of St. Petersburg and The Hague '

    1414 However, a glimmer of light eventually appeared in the murky process of the development of weapons. This came in the form of the St. Petersburg Declaration of 1868, which introduced a prohibition on the use, in time of war, of explosive or inflammable projectiles with a weight of less than 400 grammes. The significance of this Declaration does not primarily lie in the prohibition itself, as the problems arising today are on a different scale from those described. It lies in its Preamble. The salient feature of the St. Petersburg Declaration is the relatively clear idea of the purpose of military operations, i.e., to weaken the military forces of the enemy. With this concept as a starting point, the Declaration continues by stating a principle and concludes with a specific prohibition. The principle is that of the prohibition of weapons which would unnecessarily increase the suffering of men rendered ' hors de combat, ' or which would inevitably lead to their death. It is sufficient to render enemy combatants ' hors de combat. ' The actual prohibition is restricted to any projectile of less than 400 grammes which "is either explosive or charged with fulminating or inflammable substances", but it allows for the possibility of future prohibitions.

    1415 This was undeniably a milestone, for even in 1863, Lieber had stated in his Instructions -- which codified the law existing at the time he was writing -- that [p.402] since wars had developed into large scale national wars, there were no longer any treaty restrictions of the modes adopted to injure the enemy, but that the law of war imposes many limitations and restrictions based on principles of justice, faith and honour. (44) The St. Petersburg Declaration was followed in 1899 by three other Declarations at The Hague, including one concerned with the use of bullets which expand or flatten easily in the human body (dum-dum bullets). (45) There was apparently a general respect for this last prohibition by belligerent Parties, even though modern weapons could give rise to new problems in this respect. With regard to the prohibition of 1868, practice is less clear and the question is controversial. (46) However, the principal point which was raised by some of the experts who concerned themselves with this matter was a different issue. The St. Petersburg Declaration of 1868 and the Hague Declarations of 1899 explicitly prohibit particular weapons on the basis of a certain concept of military operations which renders these weapons unnecessary. The Hague Regulations of 1907 which in Article 23 , paragraph 1 (e), states that it is prohibited "to employ arms projectiles, or material calculated to cause unnecessary suffering" turns this basis into the rule itself, but as a result it becomes so vague and generalized that in the view of the experts it lacks any practical value. (47) The principle in the Preamble of the Declaration was thus turned into the rule in The Hague in 1907, whereas its true role is, and only can be, a source of inspiration for establishing the rules. (48)

    ' The work of the United Nations '

    1416 The fact remains that the text of Article 23 , paragraph 1(e), of the Hague Regulations had to be included in the Protocol with some modifications in the wording. It can be found in Article 35, paragraph 2, under the title "Basic rules". However, the problem was not resolved and this is why the participants in the Conference endeavoured to find a solution since the start of the ' travaux préparatoires ' in 1971. (49) This was the start of a debate which went on during the two sessions of the Conference of Government Experts, three meetings of experts, (50) the four sessions of the Diplomatic Conference in an Ad Hoc Committee. Resolution 22, entitled "follow-up regarding Prohibitions or Restriction of Use of Certain Conventional Weapons", crowned all these efforts. [p.403] Throughout the course of these debates the principle of the prohibition on superfluous damage and injury was examined, analysed, thoroughly studied and questioned, both in the light of past experience and from the point of view of modern military necessity. The principle was never contested, but neither did it form the subject of a wide-ranging agreement on its significance and its scope as far as actual means used in combat are concerned. The first fruits of these efforts were gathered by the "United Nations Conference on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects", which was held in Geneva from 10 to 28 September 1979, and from 15 September to 10 October 1980. This Conference was called on the basis of a recommendation formulated in Resolution 22 mentioned above, which gained the full support of the United Nations General Assembly. It concluded by adopting the following instruments by consensus:

    - Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects;
    - Protocol I on Non-Detectable fragments;
    - Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices;
    - Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons. (51)

    ' The scope of the prohibition '

    a) ' General '

    1417 The report of the Rapporteur indicates that:

    "several representatives wished to have it recorded that they understood the injuries covered by that phrase to be limited to those which were more severe than would be necessary to render an adversary hors de combat". (52)

    As we have seen above, this corresponds to the position of the ICRC (53) and to the intent of the original rule.

    1418 However, before examining particular aspects, it is appropriate now first to examine the undisputed importance and value of the paragraph under consideration here, in relation to all the Geneva Conventions and to the Protocol [p.404] itself. It is precisely because mistreating someone who is ' hors de combat, ' whether he is wounded, sick, or shipwrecked, a prisoner or a harmless civilian, is considered as being completely unnecessary from the point of view of military necessity, that the Geneva Conventions since 1864, and now the Protocol, have been adopted. It is precisely in order to prevent unnecessary suffering that Article 51 of the Protocol ' (Protection of the civilian population), ' paragraph 4, prohibits indiscriminate attacks. Similarly, Article 48 ' (Basic rule) ' imposes the obligation at all times "to distinguish between the civilian population and combatants", Article 52 ' (General protection of civilian objects) ' distinguishes military objectives and civilian objects, and Article 57 ' (Precautions in attack) ' imposes the obligation on those who plan and decide upon an attack to identify the objective before proceeding with the attack. These are just a few examples. The same principle forms the basis for Article 35 , paragraph 3, which prohibits widespread, long-term and severe damage to the natural environment. Similarly, Article 36 ' (New weapons) ' places the High Contracting Parties under an obligation to take care when developing or adopting a new weapon. In all these fields the principle of the prohibition of causing unnecessary suffering is not only undisputed but is applied in the form of concrete rules, including those which are specifically concerned with the civilian population.

    b) ' Specifics '

    1419 The problem of the weapons remains. This is the most difficult, and possibly also the most important issue:

    "[...] if there is continued exploitation of technological developments for military purposes, as has unfortunately been the case since 1907, the existence and the value of what still remains of the laws of war and even of the law of nations in general, will become problematical". (54)

    The specific applications of the prohibition formulated in Article 23 , paragraph 1(e), of the Hague Regulations, or resulting from the Declarations of St. Petersburg and The Hague, are not very numerous. They include:

    1. explosive bullets and projectiles filled with glass, but not explosives contained in artillery missiles, mines, rockets and hand grenades. (55)
    2. "dum-dum" bullets, i.e., bullets which easily expand or flatten in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions (56) or bullets of irregular shape or with a hollowed out nose; (57) [p.405]
    3. poison and poisoned weapons, (58) as well as any substance intended to aggravate a wound; (59)
    4. asphyxiating or deleterious gases. (60)
    5. bayonets with a serrated edge, (61) and lances with barbed heads. (62)
    6. hunting shotguns are the object of some controversy, depending on the nature of the ammunition and its effect on a soft target. (63)

    1420 The weapons which are prohibited under the provisions of the Hague Law are, a fortiori, prohibited under the paragraph of Article 35 with which we are concerned here.

    1421 The above-mentioned Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, and the Protocols annexed to it, formulate rules prohibiting or restricting the use of certain weapons with particular reference in the Preamble to the text of this paragraph of Article 35 , as well as to paragraphs 1 and 3 of this article.

    a) The following are prohibited:
    - the use of any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays (Protocol I); (64)
    - the use of booby-traps intended to cause superfluous injury or unnecessary suffering, as well as any booby-traps that are placed perfidiously (Protocol II). (65)
    b) The following have a restricted or limited use:
    - mines, booby-traps (those which are not prohibited in the sense described above), and other delayed-action devices (Protocol II);
    - incendiary weapons (Protocol III).

    1422 With regard to the first category, apart from the restrictions which are already imposed by the rules of Protocol I Additional to the Conventions (restriction of attacks to military objectives, prohibition on indiscriminate attacks etc.), the restrictions concern populated areas and remotely delivered mines (Articles 4 and 5 ). In principle, mines should not be used in populated areas. Exceptions are provided for in combat, or if adequate control measures are taken. Regarding the use of remotely-delivered mines, this is subject either to a precise recording of the mined area, or to the condition that the mines deployed are fitted with a self-activating or remotely-controlled mechanism capable of neutralizing them as soon as the military situation allows it. Special provisions (Articles 7 -- 9) provide for the publication of the location of the minefields as soon as active hostilities cease, and for special security measures for the protection of United Nations [p.406] forces and for international cooperation regarding the removal of minefields, mines and booby-traps.

    1423 Incendiary weapons are also subject to restrictions on their use on the basis of Protocol I Additional to the Conventions (prohibition of attacks against the civilian population and civilian objects). But in addition, a military objective situated inside a concentration of civilians should never be the object of attack by incendiary weapons delivered by aircraft (Article 2 , paragraph 2). Other incendiary weapons can only be used in such a situation if the military objective is clearly separated from the concentration of civilians, and if all precautions have been taken to prevent or minimize civilian losses and injury (Article 2 , paragraph 3). Finally, the use of incendiary weapons is prohibited in forests and other types of vegetation, unless these constitute military objectives or conceal military objectives (Article 2 , paragraph 4).

    1424 It is worth noting that none of the rules explicitly protects combatants from incendiary weapons such as flame-throwers or napalm. However, it is generally admitted that these weapons should not be used in such a way that they will cause unnecessary suffering, (66) which means that in particular they should not be used against individuals without cover. Certain other weapons that may have an indiscriminate effect continue to be the object of controversy (although the Additional Protocol imposes mandatory rules in this respect in Article 51 -- ' Protection of the civilian population, ' paragraph 4 which admittedly refers to "attacks" and not to weapons). These include, for example, certain blast and fragmentation weapons, as well as small-calibre projectiles. A start has been made on examining the possibility of prohibiting or restricting their use. (67)

    1425 In this field, which concerns the security of States, more than in any other, any extension of the scope of Article 35 , paragraph 2, relating to weapons (68) depends either on the practice of States or on their express agreement to prohibitions or restrictions on the use of the weapons referred to above.

    ' Questions of terminology '

    1426 Regarding the wording of the paragraph under consideration, this only differs slightly in the French version from the Hague text, (69) and only the word "méthodes" has been added. On the other hand, the difference is greater in the English text from two points of view. The Conference certainly considered that the expression "calculated to cause", which was used in English as an equivalent of the French expression "propre à", and which can be found in the 1907 version [p.407] of the Hague Regulations was not appropriate, (70) and consequently the text was amended to "of a nature to". Moreover, the French expression "maux superflus" was translated in English no longer only by the words "unnecessary suffering", as it had been formerly, but by the expression "superfluous injury or unnecessary suffering", as the French expression covers "simultaneously the sense of moral and physical suffering". (71)

    ' Problems arising within the Ad Hoc Committee '

    1427 Thus the principle which forms the object of the paragraph of Article 35 with which we are concerned here, was accepted without any difficulty by Committee III of the Conference. Not surprisingly, there were a number of proposals aimed at rendering it more complete and precise. In this respect one could refer to the proposed amendments designed to prohibit methods and means of mass extermination, (72) or weapons which have indiscriminate effects, (73) or even means of combat resorted to in the context of the conflicts covered by Article 1 ' (General principles and scope of application), ' paragraph 4, (74) but these proposals did not, in the end, give rise to any real discussion at this stage. Only the problem of damage to the natural environment, which is covered by paragraph 3 examined below, was dealt with. Obviously the scope of Article 36 ' (New weapons) ' is left for consideration later. It was in the Ad Hoc Committee and in the meetings of experts mentioned above that detailed debates took place on the questions raised by the rule under consideration here. The most that can be said with regard to Committee III is that certain delegations insisted from the very beginning of the discussion of Article 35 , paragraph 2, that the problems raised by this provision fall exclusively within the competence of States. (75)

    1428 Thus the Ad Hoc Committee was faced with an arduous task. (76) It is clear that in the eyes of the victim all suffering is superfluous and any injury is unnecessary. [p.408] Thus in principle it is necessary to weigh up the nature of the injury or the intensity of suffering on the one hand, against the "military necessity", on the other hand, before deciding whether there is a case of superfluous injury or unnecessary suffering as this term is understood in war. The debates on this point have too often given way to discussions which could almost be described as Byzantine with regard to the examination of each individual weapon. This occurred to such an extent that "most experts had [...] agreed that it would be easier to ensure that a weapon was banned if the treaty did not spell out the underlying motives". (77) This reveals to what extent the matter has remained a question of controversy. (78) This is the case even if the question is considered from the purely medical point of view, as appeared in the "Statement concerning unnecessary suffering presented by the informal working group of medical experts" at the second session of the Conference of Government Experts on the Use of Certain Conventional Weapons.

    1429 This Statement is as follows:

    "Unnecessary suffering is a term implying numerous medical parameters. From a strictly medical standpoint it seems impossible at the present stage of medical knowledge to objectively define suffering or to give absolute values permitting comparisons between human individuals. Pain, for instance, which is but one of many components of suffering, is subject to enormous individual variations. Not only does the pain threshold vary between human beings: at different times it varies in the same person, depending upon circumstances.
    It was the opinion of all medical experts that instead of "suffering", ' the wound or injury ' caused by a weapon offered a better but still very complex way of defining the effect of that particular weapon. It is still very difficult to compare an injury in one part of the human body with one in a different location. Likewise, general effects caused by a local injury are subject to many variables and make comparison between different individuals difficult. However, if such parameters are taken into consideration, it seemed to the medical experts preferable to use ' injury instead of suffering '." (79)

    It is quite clear that the French expression "maux superflus" implies the concept of injury as well as that of suffering. (80)

    [p.409]
    ' Conclusion '

    1430 Article 35 , paragraph 2, was finally adopted by consensus. (81) It lays down a prohibition relating to the results produced, though not directly a prohibition on the means. However, this does not mean that such prohibitions are necessarily absent in the Protocol, as is clear from other provisions (for example, the prohibition on the use of perfidy, on methods and means of combat with indiscriminate effects, on starvation etc.).

    1431 Despite the difficulties encountered by the Ad Hoc Committee in its task, the reaffirmation of the prohibition on unnecessary suffering and superfluous injury corresponds to the ICRC's own proposals. To cast any doubt on the prohibition of superfluous injury or unnecessary suffering, or, even worse, to renounce it, would have resulted sooner or later in the acceptance of torture. Admittedly, obstacles will be met in applying this principle to specific weapons, but the main thing is that the principle has been upheld as a permanent signpost indicating the ultimate objective. We conclude with the following summary:

    1432-- The principle of the Hague Regulations, Article 23(e) is reaffirmed.

    1433-- All methods of war conflicting with the rules of the Protocol and the Geneva Conventions are of a nature to cause superfluous injury or unnecessary suffering.

    1434-- The prohibitions on inflicting superfluous injury or unnecessary suffering on combatants and civilians, resulting from preceding rules, are confirmed (see in particular, supra, pp. 404-405).

    1435-- Fragmentation projectiles of which the fragments cannot be traced by X-rays are prohibited as they are of a nature to cause superfluous injury or unnecessary suffering (see supra, p. 405).

    1436-- In inhabited areas, landmines (82) are subject to restrictions on their use, with the intention of avoiding superfluous injury or unnecessary suffering. The same applies to booby-traps and other delayed-action devices, which should never be deployed perfidiously. The use of remotely delivered mines is subject in all circumstances to the condition that the mined area be recorded or neutralized as soon as the military situation allows (see supra, pp. 405-406).

    1437-- Incendiary weapons are subject to restrictions on their use when the military objective is situated in an inhabited area. In particular, they should never be delivered by aircraft in these circumstances (see supra, p. 406).

    1438-- Napalm, small-calibre projectiles, and certain blast and fragmentation weapons can also result in superfluous injury or unnecessary suffering, in the sense of the provision contained in this article, even though up to now no regulations have been adopted on this subject.

    1439-- The concept of superfluous injury or unnecessary suffering, its objective effect on the victim (severity of the injury, intensity of suffering), and its relation to military necessity (rendering the enemy ' hors de combat ') are not interpreted in [p.410] a consistent and generally accepted manner. This concept continues to be the basis on which judgment is formed, but debates have shown its relative and imprecise character.

    Paragraph 3 -- Protection of the natural environment

    ' Introduction '

    1440 Any method or means of warfare which are planned to cause, or may be expected (albeit without the intention) to cause serious damage to the natural environment, even if this effect is incidental, are prohibited.

    1441 Thus this is a matter not only of protecting the natural environment against the use of weapons or techniques deliberately directed against it, nor merely of protecting the population and the combatants of the countries at war against any of these effects, but also one of protecting the natural environment itself, taking into account the inevitable overflow effect inherent in these incidents and the resulting "transnational" aspect of this problem.

    1442 These days, the environment is all too often adversely affected, which is the subject of much criticism, and which has principally affected industrialized countries. Pollution, ugliness, soot, noise and the psycho-physiological conditions resulting for mankind, all contribute to create a degraded environment in which mankind is forced to live. Thus preventative or corrective measures have to be taken to prevent this environment from having a harmful effect on the physical or mental health of the people. This struggle has already begun, both at the national level and at the international level. At the national level this action is led by public authorities, and in some cases a Cabinet Member is even appointed with responsibility for the quality of life. At the international level, the United Nations Conference on the Environment, held in Stockholm in 1972, formed the starting point for the United Nations Environment Programme, as well as a declaration known as the Stockholm Declaration. The Red Cross is involved to a significant extent in this peacetime effort, whether it takes place at a national level, through the National Red Cross or Red Crescent Societies, or at the international level, through the intervention of their federation, the League of the Red Cross and Red Crescent Societies. (83).

    1443 The threat of peacetime activities to man's environment is a relatively new problem. (84) Until quite recently this was the unhappy prerogative, above all, of war. War is still a threat, but it no longer has a monopoly. In fact it is a threat to such an extent, in view of the devastating character of modern weapons, that [p.411] Article 54 of the Protocol ' (Protection of objects indispensable to the survival of the civilian population) ' contains a special provision to this effect. In fact, the threat is not limited to the period of hostilities. It extends far beyond this period, as shown by the studies carried out under the aegis of the United Nations Environment Programme. (85) Landmines and booby-traps have in some cases been scattered in astronomical quantities in certain theatres of war. Once the war is over, these devices can only be eliminated with considerable risk by patient efforts which must continue for many years. Meanwhile, they form a serious and constant threat to the population. This is just one example, but in reality all delayed-action devices or those which have not exploded, for whatever reason, have a similar effect on the environment, with ominous consequences. In addition, chemical components of certain material war remnants can have permanent harmful effects on humans, animals, vegetation, water, land and the ecosystem as a whole (86)

    ' Travaux préparatoires '

    1444 The concept of the ecosystem brings us to the essence of Article 35 , paragraph 3 (identical on this point to that of Article 55 -- ' Protection of the natural environment '), as opposed to the concept of the human environment which forms the subject matter previously considered. In fact this distinction has only gradually emerged in the text. The first proposals submitted in 1972 referred to "means and methods which destroy the natural human environmental conditions", (87) or the "methods and means which destroy natural human environment". (88) These formulations are understandable when one remembers that they express a concern for the protection of the natural environment, for example, the climate, from effects which could in the long run be harmful to the environment necessary for man's existence. (89) Man could and should modify his environment by cooperating with nature, not by attacking it in an ill-considered way. However, as war is a destructive activity which is directed against men, i.e. combatants, as much as against the environment surrounding them, these proposals undoubtedly seemed to be lacking in clarity or ambiguous. However, [p.412] they retain their usefulness in revealing the concern of the original proponents of the final provision with which we are concerned here. This also applies to another proposition concerned with the "means and methods which upset the balance of the natural living and environmental conditions", (90) which is linked to the above-mentioned concept of the ecosystem.

    1445 These fears are by no means imaginary.

    1446 As shown in the ' Final Report: An Agenda for the Red Cross, ' by D. Tansley, published in 1975:

    "Another possibility for the future concerns new kinds of disasters which may emerge from the growing impact of technology upon the environment. Deterioration of the environment through various human activities can be expected to have an important effect on human populations, particularly in large urban agglomerations and densely populated areas. Pollution of the air and of the water cycle raises the possibility of increased "technological disasters" in the future. Many of these can be expected to be local in impact, confined to a single city, region or country. But concern is also growing over the extent to which human activities might also touch the "outer limits" of the ecological systems of the earth. Prediction in such a difficult area is hazardous. It is perhaps enough to note the concern expressed by the Club of Rome [...]" (91)

    If peacetime activities can unleash such "technological disasters", we should fear them all the more during wartime. (92)

    ' The work of the Diplomatic Conference '

    1447 The problem was brought up by a number of delegations (93) from the very beginning of the Conference in 1974, and various proposals were again submitted. (94) Finally, Committee III set up an informal working group, called the Group "Biotope", which proposed adding a supplementary paragraph to Article [p.413] 35 , with the following wording: "It is forbidden to employ methods and means of warfare which damage the environment in such a way that the stability of the ecosystem is disturbed". (95) However, Committee III did not follow the proposal of its working group entirely, and finally eliminated all references to the "ecosystem". (96) However, it is clear that there is a discrepancy between the proposals submitted, on the one hand, by a number of different countries (CDDH/III/222, see supra, note 94), and on the other, by the Group "Biotope". Some refer to the ecological balance of the human environment, others to the stability of the ecosystem, and the text which was finally adopted simply refers to "widespread, long-term and severe damage to the natural environment". The opinions expressed on this point by the United States and the Soviet Union are not unrelated to this result.

    1448 A concern for coordination can in fact explain this. At the time that the problem was being debated in the Diplomatic Conference, i.e., in the spring of 1975, the Conference of the Committee on Disarmament (CCD), which was also meeting in Geneva at that time, had on its agenda Resolution 3264 (XXIX) of the United Nations General Assembly. This resolution was concerned precisely with the prohibition of actions to influence the environment and climate for military and other purposes incompatible with the maintenance of international security, human well-being and health. In the annex it included a draft Convention. Article 1 (97) of the Convention, which reflected the deliberations of the CCD, (98) finally incorporated the prohibition "of environmental modification techniques having widespread, long-term or severe effects". (99)

    [p.414] 1449 A number of questions arise. Could one maintain that these two texts which seem to be identical, or at least extremely similar on essential points, actually duplicate each other? Within the Diplomatic Conference, this point was examined primarily with regard to the apparent duplication resulting from the paragraph of Article 35 under consideration, and Article 55 ' (Protection of the natural environment). ' The Group "Biotope" (100) gave the following answer to this question in its report:

    "An effort was made to incorporate Article 33 [now Article 35 ] within Article 48bis [now Article 55 ]. The Group reached the conclusion, however, that the two Articles should remain separate for the reason that whereas Article 48bis [55 ] relates to the protection of the civilian population, Article 33 [35 ] relates to the prohibition of unnecessary injury." (101)

    A number of delegations expressed a similar point of view during the discussion of Article 48bis [55 ] within the Working Group. (102) The present paragraph 3 of Article 35 was included in the context of methods of warfare, while Article 55 ' (Protection of the natural environment) ' is aimed at ensuring the survival or the health of the civilian population living in a particular wartime environment. For this reason it was not considered that these two provisions duplicated each other, as Article 35 , paragraph 3, has a much wider scope, taking into account the inevitable "overflow effect", i.e., the "transnational" aspect of the problem. However, the question was debated above all in relation to the United Nations Convention.

    ' Relation to the United Nations Convention on the prohibition of Military or any Other Hostile Use of Environmental Modification Techniques '

    1450 This question of possible duplication was raised in particular with regard to the two separate instruments: on the one hand, the Additional Protocol to the Geneva Conventions, and on the other hand, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. The problem was discussed within the CCD and the representative of the United States clearly responded to this in the negative. He stated that the Protocol is aimed at protecting the natural environment against damage which could be inflicted on it by any weapon, whereas the goal of the Convention is to prevent the [p.415] use of environmental modification techniques (103) as a weapon. (104) He added that the Protocol only applied to armed conflict, while the prohibition contained in the Convention applies to the use of these techniques for hostile purposes, even in a case where there had been no declaration of war whatsoever, and where no other weapons were used. (105) These views do not seem to have been contested, (106) though some representatives regretted that the identical or virtually identical wording on this essential point ("widespread, long-lasting or severe" in the Convention and "widespread, long-term and severe" in the Protocol) does not make it easy to make a distinction between the two. (107) However, it is generally accepted that the United Nations Convention has a wider application than the Protocol in this respect.

    1451 In more concrete terms, one could add that the Convention prohibits the deliberate manipulation of natural processes in order to change "the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space", (108) with the intention of damaging the armed forces of another State Party to the Convention, its civilian population, towns, industries, agriculture, transportation and communication networks, or its natural resources and wealth. (109) In contrast the Protocol prohibits damaging the natural environment by any means whatsoever, whether direct or indirect, as opposed to effects on the human environment, i. e. "to external conditions and influences which affect the life, development and the survival of the civilian population and living organisms". (110) Even though the formula referring to perturbations of the stability of the ecosystem was rejected, "as an operative part of the standard", (111) the term "natural environment" in the Protocol does refer to this system of inextricable interrelations between living organisms and their inanimate environment. (112) This is a kind of permanent or transient equilibrium depending on the situation, though always relatively fragile, of forces which keep each other in balance and condition the life of biological groups.

    1452 Thus these texts do not duplicate each other. Nor do they seem to contradict each other, as was once feared. This fear was based on the fact that the United [p.416] Nations Convention does not prohibit environmental modifications which cause widespread, long-lasting or severe damage as such, but only to the extent that they are used to cause damage to another State, while the Protocol prohibits any means of a nature to cause widespread, long-term and severe damage to the natural environment. As we have seen above, these similar, though not identical terms reveal different realities and different goals. On the other hand, there is no doubt that the two texts are complementary in time of war, i.e., that the Protocol supplements the United Nations Convention. It is probably for this reason that an effort was made to employ a uniform terminology as far as possible. (113) However, an additional difficulty arises from the fact that the United Nations Convention, on the one hand, and the Protocol, on the other hand, do not give the same meaning to the same terms. For example, for the United Nations Convention, the term "long-lasting" was defined as lasting for a period of months or approximately a season, (114) while for the Protocol "long-term" was interpreted as a matter of decades. (115) Taking this into consideration, the United Nations Convention prohibits both in times of war and peace any actions which could be expected to cause, for example, a "long-lasting" (several months) modification of the climate, which could harm another State Party to the Convention. In the case of armed conflict the Protocol prohibits any "long-term" (a period of decades) modification of the climate, whether this is instigated directly or indirectly.

    1453 In times of armed conflict, which is only what concerns us here, the Protocol and the Convention, taken together, prohibit:

    a) any direct action on natural phenomena of which the effects would last more than three months or a season for one or other of the Parties to the Convention, even if this Party is not a Party to the conflict;
    b) any direct action on natural phenomena of which the effects would be widespread or severe (for the interpretation of these terms, see infra, note 117), regardless of the duration, affecting one or other of the Parties to the Convention, even if it is not a Party to the conflict;
    c) any method of conventional or unconventional warfare which, by collateral effects, would cause widespread and severe damage to the natural environment as such, whenever this may occur over a period of decades. (116)

    1454 Undoubtedly there was concern for coordination and even unification of the terminology used, but there is also some danger of confusion as the same words are not used with the same meaning. The drafters of the United Nations [p.417] Convention are thinking of hurricanes, tidal waves and earthquakes as well as rain and snow, and they reason in terms of months and seasons. (117) The authors of the Protocol think in terms of "ecology", and the time scales are not at all the same. This is what the Rapporteur stated in his report:

    "The three elements of the adopted formula of time or duration of the damage, scope or area affected, and the severity or prejudicial effect of the damage to the civilian population was extensively discussed. The time or duration required (i.e., long-term) was considered by some to be measured in decades. References to twenty or thirty years were made by some representatives as being a minimum. Others referred to battlefield destruction in France in the First World War as being outside the scope of the prohibition. The Biotope report states that "Acts of warfare which cause short-term damage to the natural environment, such as artillery bombardment, are not intended to be prohibited by the article', and continues by stating that the period might be perhaps for ten years or more. However, it is impossible to say with certainty what period of time might be involved. It appeared to be a widely shared assumption that battlefield damage incidental to conventional warfare would not normally be proscribed by this provision. What the article is primarily directed to is thus such damage as would be likely to prejudice, over a long term, the continued survival of the civilian population or would risk causing it major health problems," (118)

    1455 This last remark seems to refer to Article 55 ' (Protection of the natural environment) ' of the Protocol rather than to Article 35 , with which we are concerned here. (119) However, the report clearly indicates that the period should be measured in decades and not in months, which underlines the ecological aspect of the problem, even though the term "ecosystem" is not used in the text. (120) Similarly, it eliminates certain effects which can extend over decades, while they are not of a nature to affect the ecosystem as such. Also, the problems arising from the material remnants of war, which were referred to above, (121) seem to be covered not only by the provisions of Article 35 , but also by Article 55 ' (Protection of the natural environment). ' The drafters of the United Nations Convention took [p.418] every precaution to ensure that the interpretation of the terms "widespread, long-lasting or severe" used in the Convention would not be automatically applied to the Protocol. (122)

    1456 These apparently contradictory demands are not irreconcilable at the level of interpretation. The ordinary meaning to be given to the terms of a treaty in their context should be established in the light of the object and purpose of the treaty, (123) or those of the provision under consideration. These different rules relating to the protection of the environment manifestly reflect a concern about the harmonization of the terminology used. However, each one of these articles should still be understood and interpreted in the light of its own character, its context, object and purpose. These concepts are not interchangeable, nor are the conclusions which are based on them.

    ' Questions of terminology '

    1457 We repeat that the formula used in the United Nations Convention ("widespread, long-lasting or severe") implies that it is sufficient for one or other of these conditions to be fulfilled, for the situation to fall under the prohibition. On the other hand, a method or a means of war does not become unlawful under Article 35 of the Protocol unless it cumulatively fulfils all three conditions included in the provision, i.e., unless it causes damage which is simultaneously widespread, long-lasting and severe.

    1458 Further, as a matter of drafting, Article 35 , paragraph 3, contains the phrase "intended, or may be expected, to cause", though there is no equivalent phrase in paragraph 2. The analysis of the latter provision has shown that the English formula ("calculated to cause"), was corrected to conform with the French text ("de nature à"). (124) In fact, the experts had recognized that the English turn of phrase contained the notion of intention or of deliberate design, which seemed to be missing in the French expression and that it could be interpreted in a more restrictive sense. (125) It was even contended that the English expression was aimed in particular at the manufacturers of arms and meant to force them to abstain from developing arms of a nature to cause unnecessary suffering. (126) Whatever the case may be, the drafting of the paragraph under consideration here deliberately differs in this respect from the preceding paragraph and refers both to geophysical weapons, exclusively intended to affect for example the climate, [p.419] and "non-intentional ecological war" in which the consequences for the natural environment simply result from the large scale use of conventional weapons. (127)

    ' Declarations '

    1459 Article 35 , paragraph 3, was adopted by consensus at a plenary meeting. However, a number of delegations decided to make statements, (128) particularly those who did not approve of the wording of Article 1 of the United Nations Convention and the inclusion of the words "widespread, long-lasting or severe" in this provision, a wording which was considered by its supporters to help "friction on insignificant questions". (129) One delegate stated that in his opinion:

    "the interpretation of the terms "widespread" "long-term" and "severe" has to be consistent with the general line of thought as it emerged from the deliberations on this article in Committee III, as reflected in its report (CDDH/215/Rev.1). In no case should it be interpreted in the light of the terminology of other instruments of environmental protection that have a different scope of application altogether". (130)

    [p.420] Another delegation did not approve of the inclusion of the clause relating to the environment in Article 35 . (131)

    ' Conclusion '

    1460 Geophysical war and ecological war are two aspects of the same subject. They are dealt with in two separate juridical instruments and form the object of provisions which are sometimes couched in similar terms, underlining their kinship, though this should not lead to confusion.

    1461 For example, geophysical war might be aimed at changing the weather or the climate, or triggering off earthquakes. It is prohibited by the United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, vis-à-vis any State Party to the Convention. This concerns a measure of arm control which applies in time of peace, as in time of war. The threshold of applicability of this prohibition is determined with reference to the extent of the damage, to the period during which the damage is caused, or to its severity. The order of magnitude is in terms of some hundreds of square kilometers with regard to the extent, several months or one season with regard to the duration, and the serious disruption of human life and natural or other resources with regard to the severity.

    1462 Ecological warfare refers to the serious disruption of the natural equilibrium permitting life and the development of man and all living organisms, a disruption of which the effects may be felt for one or more decades. The paragraph under consideration here prohibits this, whether it is committed intentionally or not, for example, by the deliberate use of the tools of chemical warfare, or whether it is simply the result of the use of weapons which inevitably have the same effect on vast stretches of land, whether these are populated or not. Because of the transnational aspect of this problem in particular, the prohibition is absolute; it even continues to apply in the absence of any direct threat to the population or to the flora and fauna of the enemy State. It is the natural environment itself that is protected. It is common property, and should be retained for everyone's use and be preserved.

    ' J. de P. '


    NOTES

    (1) [(1) p.390] In fact, this was taken from the English version of the 1907 text, except that the expression "belligerents" was replaced by "Parties to an armed conflict". However, one should remember that the authentic text of the Hague Regulations was in French;

    (2) [(2) p.390] The ICRC text was as follows: "The right of Parties to the conflict and of members of their armed forces to adopt methods and means of combat is not unlimited". (Draft Protocol I, Art. 33, para. 1);

    (3) [(3) p.390] O.R. III, pp. 155, 157, CDDH/III/91, 108, 237;

    (4) [(4) p.390] A possibly more substantial modification was proposed in an amendment stating that "the choice" (and not the right) of the methods and means of combat was not unlimited (ibid., p. 156, CDDH/III/225); cf. ' CE 1972, Report', Vol. II, p. 56, CE/COM III/C 27;

    (5) [(5) p.390] O.R. XIV, p. 234, CDDH/III/SR. 26, para. 5;

    (6) [(6) p.391] M. Greenspan, ' The Modern Law of Land Warfare, ' Berkeley and Los Angeles, 1959, p. 314; F. Berber, ' Lehrbuch des Völkerrechts, ' II, Kriegsrecht, 1962, p. 166;

    (7) [(7) p.391] W. Downey, "The Law of War and Military Necessity", 47 AJIL, 1953, p. 253;

    (8) [(8) p.391] M. Huber, ' La pensée et l'action de la Croix-Rouge, Geneva, ' 1954, pp. 291-292;

    (9) [(9) p.391] For a well-known case, see 42 AJIL, 1948, pp. 301-304;

    (10) [(10) p.392] F. Berber, op. cit., p. 78;

    (11) [(11) p.392] ' Yearbook of the International Law Commission, ' 1980, Vol. II, part two, pp. 34, 46-47 and 50; there are also numerous bibliographical references, particularly on pp. 46-47. See also the Vienna Convention on the Law of Treaties, Art. 53;

    (12) [(12) p.392] J.L. Kunz, "The Laws of War", 50 AJIL, 1956, p. 328;

    (13) [(13) p.392] On this subject, see H. Lauterpacht, "The Problem of the Revision of the Law of War", 29 BYIL, 1952, p. 360;

    (14) [(14) p.393] F. Lieber, ' Instructions for the Government of Armies of the United States in the Field ' (known as the Lieber Code), 1863, Art. 14; this formula is still applicable. In this sense, see W. Downey, op. cit., p. 252;

    (15) [(15) p.393] O.R. XIV, pp. 233-249, CDDH/III/SR.26 and 27;

    (16) [(16) p.393] Ibid;

    (17) [(17) p.394] See, in particular, ' CE 1971, Report ', pp. 103-104, paras. 518 and 522; CE 1972, Report, Vol. I, pp. 128-131, paras. 3.14 to 3.23; O.R. XVI, CDDH/47/Rev.1, Report 1974; CDDH/220/Rev.1, Report 1975; CDDH/237/Rev.1, Report 1976; CDDH/408/Rev.1, Report 1977; Conference of Government Experts on the Use of Certain Conventional Weapons, ' Lucerne Report and Lugano Report ';

    (18) [(18) p.394] Translated by the ICRC. M. Huber, ' La pensée et l'action de la Croix-Rouge, ' op. cit., p. 221;

    (19) [(19) p.394] Translated by the ICRC. M. Huber, "Quelques considérations sur une révision éventuelle des Conventions de La Haye relatives à la guerre", RICR, July 1955, p. 430;

    (20) [(20) p.394] Translated by the ICRC; original text: "la procédure en soi utile du consensus connaît toutefois des limites. L'accord des Parties n'est souvent acquis qu'au détriment de la clarté et de la précision des textes". Report of 29 July 1976 on relations between Switzerland and the United Nations and its specialized agencies from 1972-1976, submitted by the Federal Council to the Federal Parliament, p. 21, footnote;

    (21) [(21) p.395] For example, this led to a number of experts at the second session of the Conference of Government Experts expressing their fear of passing the responsibility of deciding what is a lawful objective and what is not to the military commander at any level. They firmly opposed the proposal that a military commander could draw up his own criteria and consequently they requested that objective criteria should be laid down in the Protocol, to which the military must refer in practice (CE 1972, Report, Vol. I, p. 147, para. 3.141). See also E. David, ' La protection des populations civiles pendant les conflits armés ', International Institute for Human Rights, VIIIth Teaching Session, July 1977, p. 32;

    (22) [(22) p.395] Ibid p. 52;

    (23) [(23) p.395] F. Berber, op. cit., p. 60, quoting Fenwick;

    (24) [(24) p.395] See ' Commentary I, ' pp. 340-341;

    (25) [(25) p.395] H. Lauterpacht, op. cit., p. 379;

    (26) [(26) p.396] N.C.H. Dunbar "Military necessity in War Crimes Trials: Notes", 29 BYIL, 1952, p. 442, at p. 444, in a quotation attributed to Phillipson;

    (27) [(27) p.396] W. Downey, op. cit., p. 254. In "The Hostages Trial" (Trial of Wilhelm List and Others), the American military tribunal declared that: "Military necessity or expediency do not justify a violation of positive rules [...] The rules of international law must be followed even if it results in the loss of a battle or even a war." The tribunal added that the prohibitions contained in the Hague Regulations "are superior to military necessities of the most urgent nature except where the Regulations themselves specifically provide the contrary" (15 ' Law Reports ', p. 175, and 8 ' Law Reports, ' pp. 66-69);

    (28) [(28) p.396] M. Greenspan, op. cit., pp. 313-314;

    (29) [(29) p.396] See in addition, M. Greenspan, op. cit., pp. 314-316; for a more detailed discussion of this subject, cf. N.C.H. Dunbar, op. cit;

    (30) [(30) p.397] First Convention, Art. 46; Second Convention, Art. 47; Third Convention, Art. 13; Fourth Convention, Art. 33;

    (31) [(31) p.397] See in particular, ' Reaffirmation, ' Report of the ICRC at the XXth International Conference of the Red Cross, Geneva, 1969, pp. 96-100. For the discussion of the problem at the Diplomatic Conference, see S.E. Nahlik, "Belligerent Reprisals as Seen in the Light of the diplomatic Conference on Humanitarian Law, Geneva, 1974-1977", 42 ' Law and Contemporary problems 2, ' 1978, p. 36;

    (32) [(32) p.397] By way of comparison, see Art. 15: "Civilian medical personnel shall be respected and protected", or Art. 42: "No person parachuting from an aircraft in distress shall be made the object of attack during his descent"; the conditions under which the obligation is to be carried out are explicit in the second example, and those on the exercise of the right are implied in the first case;

    (33) [(33) p.398] See supra, note 2;

    (34) [(34) p.398] Report of the Rapporteur, O.R. XV, p. 267, CDDH/215/Rev.1, para. 20;

    (35) [(35) p.398] See Art. 18, para. 3; Art. 41, paras. 1, 2 and 3; Art. 51, para. 4 (b) and (c); Art. 65, para. 3; Art. 85, para. 3(e);

    (36) [(36) p.398] The ICRC Draft contained yet another explicit reference to the members of the armed forces (see supra, note 2), which was finally rejected by the Conference. Perhaps it is because of the extent of the "grey areas" where the prescribed conduct is even more difficult to determine for an ordinary soldier or his superior officer than for the legal experts that this reference was rejected. Nevertheless, it was in accordance with a number of military manuals (see, for example, ' US Army Field Manual 27-10 ', para. 3(b): "the law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces") and with the Geneva Conventions of 1949. These clarifications were added after the "Hostages Trial" at Nuremberg;

    (37) [(37) p.398] O.R. VI, p. 115, CDDH/SR.39, Annex;
    (38) [(38) p.398] Based on the fact that this article, as well as others in this Part, have "direct implications for the defence and security of States" (O.R. VI, p. 101, CDDH/SR.39, para. 55), or for motives relating to para. 3 (ibid, p. 113, Annex);

    (39) [(39) p.398] Ibid., p. 115, Annex; the United States has made a declaration contrary to this statement with regard to nuclear arms at the time of signature on 12 December 1977; the United Kingdom also did so to some extent. See commentary Art. 51, infra, p. 613;

    (40) [(40) p.399] M. Huber, ' La pensée et l'action de la Croix-Rouge ', op. cit., p. 33;

    (41) [(41) p.399] O.R. V, p. 129, CDDH/SR.13, para. 15;

    (42) [(42) p.400] ' Reaffirmation, ' p. 2. As Max Huber has remarked, the words "Red Cross" also signify "the indefatigable struggle against all the causes of suffering which can be overcome" (translated by the ICRC) (M. Huber, ' La pensée et l'action de la Croix-Rouge ', op. cit., p. 50);

    (43) [(43) p.400] ' Reaffirmation, ' pp. 74-75;

    (44) [(44) p.402] F. Lieber, op. cit., Art. 30;

    (45) [(45) p.402] The two others are entitled "Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons" and "Declaration Concerning the Prohibition of Using Projectiles the Sole Object of which is the Diffusion of Asphyxiating or Deleterious Gases", which has now been replaced by the 1925 Geneva Protocol;

    (46) [(46) p.402] On this point, see, Y. Sandoz, ' Des armes interdites en droit de la guerre, Geneva, ' 1975, pp. 16-20;

    (47) [(47) p.402] A. Cassese, "Weapons Causing Unnecessary Suffering: Are They Prohibited?", 58 ' Rivista di diritto internazionale, ' No. 1, 1975, particularly pp. 16-20;

    (48) [(48) p.402] Ibid., pp. 37-42;

    (49) [(49) p.402] ' CE 1971, Report ', p. 99, CE/COM III/44, chap. VII;

    (50) [(50) p.402] The first took place in 1973; see ICRC, ' Weapons that may Cause Unnecessary Suffering or have Indiscriminate Effects, ' Geneva, 1973, 72 p.; see also supra, note 17, and P.A. Robblee Jr., "The Legitimacy of Modern Conventional Weaponry", RDPMDG XVI-4, 1977, p. 401;

    (51) [(51) p.403] See Y. Sandoz, "A New Step Forward in International Law -- Prohibitions or Restrictions on the Use of Certain Conventional Weapons", IRRC, January-February 1981, p. 3, and for the Final Act of the Conference, ibid., p. 41;

    (52) [(52) p.403] O.R. XV, p. 267, CDDH/215/Rev. 1, para. 21;

    (53) [(53) p.403] The ICRC draft was as follows: "It is forbidden to employ weapons, projectiles, substances, methods and means which uselessly aggravate the sufferings of disabled adversaries or render their death inevitable in all circumstances". This text is even closer to the St. Petersburg Declaration of 1868. The article is entitled: "Prohibition of unnecessary injury";

    (54) [(54) p.404] Translated by the ICRC; original text: "[...] si l'on continue à exploiter à des fins guerrières les possibilités techniques qui s'ouvrent comme ce fut malheureusement le cas depuis 1907, l'existence et la valeur de tout ce qui reste du droit de la guerre et même du droit des gens en général deviendra problématique". M. Huber, "Quelques considérations...", op. cit., p. 432;

    (55) [(55) p.404] Declaration of St. Petersburg of 1868; see also The Law of Land Warfare, p. 18, para. 34, in ' US Field Manual 27-10, ' 1956;

    (56) [(56) p.404] Hague Declaration III of 1899;

    (57) [(57) p.404] ' US Field Manual 27-10, ' p. 18, para. 34; Zusammenstellung der für die Bundeswehr wichtigen kriegsvölkerrechtlichen Abkommen (ZD 15/10), para. 75;

    (58) [(58) p.405] Hague Regulations of 1907, Art. 23(a);

    (59) [(59) p.405] ' US Field Manual 27-10, ' paras. 34 and 37;

    (60) [(60) p.405] Hague Declaration II of 1899; this point is now covered in the Geneva Protocol of 1925;

    (61) [(61) p.405] See A. Cassese, "Weapons causing...", op. cit., p. 23;

    (62) [(62) p.405] ' US Field Manual 27-10, ' para. 34;

    (63) [(63) p.405] ICRC, ' Weapons that may cause..., ' op. cit., p. 16;

    (64) [(64) p.405] These are weapons manufactured entirely or principally with substances such as wood, glass, or plastic, composed of light atoms which are virtually indistinguishable from the atoms of the human body with regard to the absorption of X-rays;

    (65) [(65) p.405] For details, see infra, p. 442;

    (66) [(66) p.406] ' US Field Manual 27-10 ', para. 36;

    (67) [(67) p.406] Resolution 22, cited above, p. 402; see also O.R. XVI, pp. 602-622, CDDH/IV/226. Unconventional weapons are left out of consideration here as their prohibition was negotiated outside the CDDH, for example, by the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) Weapons and Toxin Weapons, and on their Destruction, which entered into force in 1975;

    (68) [(68) p.406] For an outline of this question, see Y. Sandoz, ' Des armes interdites..., ' op cit., pp. 16-35;

    (69) [(69) p.406] See supra, p. 401;

    (70) [(70) p.407] O.R. XV p. 267, CDDH/215/Rev.1, para. 19;

    (71) [(71) p.407] Ibid., para. 21; the English text was further corrected as compared with the previous translation of the Hague Regulations in that the expression "to choose" was substituted for the expression "to adopt" (O.R. XIV, pp. 234 and 241, CDDH/III/SR.26, paras. 5 and 28);

    (72) [(72) p.407] O.R. III, p. 157, CDDH/III/238;

    (73) [(73) p.407] Ibid., p. 154, CDDH/III/11;

    (74) [(74) p.407] Ibid., p. 157, CDDH/III/238, and O.R. XIV, pp. 236-238, CDDH/III/SR.26, paras. 12 and 15;

    (75) [(75) p.407] O.R. XIV, p. 246, CDDH/III/SR.27, para. 8;

    (76) [(76) p.407] The Ad Hoc Committee did not restrict itself to examining those weapons that are of a nature to cause superfluous injury and unnecessary suffering in a strict sense, but also considered other criteria such as non-discrimination, perfidy, the dictates of public conscience (O.R. XVI, p. 470, CDDH/220/Rev.1, Report of the 2nd session, para. 5). Its programme included: a) incendiary weapons; b) small calibre projectiles; c) blast and fragmentation weapons; d) delayed action and perfidious weapons; e) potential weapons development (ibid., p. 453, CDDH/47/Rev. 1, para. 2). From the beginning arms which are dealt with in another forum were excluded, particularly those on the agenda of the Conference of the Committee on Disarmament (CCD) (CE 1971, Report, CE/COM III/44, ch. VII, "Prohibited methods and means of warfare" "Note", p. 99, and CE 1972, Report, Vol. I, para. 3.14, pp. 127-128, and paras. 3.15-3.23, pp. 128-130);

    (77) [(77) p.408] O.R. XVI, p. 392, CDDH/IV/SR.38, para. 9;

    (78) [(78) p.408] For the question as a whole, see in particular: ICRC, ' Weapons that may cause... ', op. cit., pp. 11-19, paras. 18-39, and pp. 25-29, paras. 59-76; Lucerne Report, pp. 7-14, paras. 16-42; ' Lugano Report ', pp. 5-9, paras. 1-15 and pp. 24 ff.; as well as the reports of the Ad Hoc Committee on conventional weapons, already cited supra, note 76; see also the Report of the United Nations Secretary-General, "Napalm and other incendiary weapons and all aspects of their possible use" (following resolution 2852 (XXVI) of the United Nations General Assembly, New York, 1973, A/8803/Rev.1);

    (79) [(79) p.408] ' Lugano Report, ' p. 140;

    (80) [(80) p.408] O.R. VI, p. 99 CDDH/SR.39, para. 47;

    (81) [(81) p.409] Ibid. p. 101;

    (82) [(82) p.409] In war at sea, the use of mines is regulated by the Hague Convention of 1907 Relative to the Laying of Automatic Submarine Contact Mines;

    (83) [(83) p.410] XXIInd and XXIIIrd International Conferences of the Red Cross, Teheran, 1973, and Bucharest, 1977, Resolutions XVIII and XXI; ' IRRC, ' August 1972, p. 468, and "The Red Cross and the Human Environment", IRRC, June 1976, p. 295;

    (84) [(84) p.410] See also UN, ' 9 Monthly Chronicle, ' No. 7, July 1972, pp. 89-94; "International Environment, Protection, Policy, Legal and Trade Aspects" in ' American Society of International Law, Proceedings, ' 1977, p. 48; M. Bothe, "War and Environment", in Bernhardt (ed.), op. cit., Instalment 4, 1982, p. 290;

    (85) [(85) p.411] United Nations Environment Programme, Administrative Council, 5th session, Nairobi, 9-25 May 1977, item 14 on the provisional agenda "Application of resolution 3435 (XXX) of the General Assembly: The study of the material remnants of war, particularly mines, and their effect on the environment" (UNEP/GC/103/19, April 1977; O.R. IV, pp. 282-289, CDDH/IV/inf.241, and ibid., pp. 236-238, CDDH/IV/inf. 222). See also: UNITAR and the Libyan Institute of international relations, The material remnants of war, UNITAR/CR/26, 1983; Resolution 3435(XXX) of 9 December 1982 of the United Nations General Assembly;

    (86) [(86) p.411] UNEP/GC/103, p. 2, para. 6, and O.R. XVI, p. 386, CDDH/IV/SR.37, para. 5. See also General Assembly, "Protection of nature from the pernicious effects of the arms race", Report of the Secretary General, A/S-12/9, 28 April 1982, particularly pp. 6-8, paras. 19-28;

    (87) [(87) p.411] ' CE 1972, Report ', Vol. II, p. 63, CE/COM III/C 68-69; see also ibid., Vol. I, pp. 28-29, para. 0.30;

    (88) [(88) p.411] Ibid., Vol. II, p. 51, CE/COM III/C 2. For the discussion, see ibid., Vol. I, pp. 30 (par. 0.30), 129 (paras. 3.17 and 3.19), 149 (para. 3.156) and 208 (para. 5.33);

    (89) [(89) p.411] In this respect, see the amendment CDDH/III/222, infra, note 94;

    (90) [(90) p.412] ' CE 1972, Report ', Vol. II, p. 52, CE/COM III/C6;

    (91) [(91) p.412] D.D. Tansley, ' Final Report: An Agenda for the Red Cross. Re-appraisal of the Role of the Red Cross, ' Geneva, July 1975, p. 57;

    (92) [(92) p.412] For example, see the Report of the United Nations Secretary-General on napalm (op. cit.), pp. 31-32, paras. 98-102; pp. 51-52, paras. 160-162; pp. 57-58, paras. 181; p. 60, paras. 160-162. See also "Stockholm International Peace Research Institute", ' SIPRI Yearbook ', 1977, pp. 79-94, and the statement by Mr. Tolba, Executive Director of the United Nations Environment Programme (UNEP), drawn up for the World Day for the Environment, which states that there is "a constant deterioration of the situation in the biological and ecological fields", in ' Weekly Summary of United Nations' Activities, ' SI/22/82, 7 June 1982;

    (93) [(93) p.412] See O.R. V, p. 105: CDDH/SR.11, para. 22; p. 139, CDDH/SR.13, para. 61, and p. 141, CDDH/SR.14, para. 3;

    (94) [(94) p.412] "It is forbidden to employ methods and means of combat which disrupt or destroy the natural conditions of the human environment" (O.R. III, p. 157, CDDH/III/238 and Add.1). "It is forbidden to use means and methods which destroy natural human environmental conditions" (ibid., p. 155, CDDH/III/108, para. 4). "It is forbidden to use methods and means which disturb or alter the ecological balance of the human environment" (ibid., p. 156, CDDH/III/222). See also CDDH/III/60, ad new Article 49bis of the ICRC draft, O.R. III, p. 220;

    (95) [(95) p.413] CDDH/III/GT/35; this proposal was made independently of two others of the same nature aimed at the insertion in Part IV of a supplementary article relating to the "protection of the natural environment" (present Article 55) and another article relating to the "protection of natural reserves" (ibid.);

    (96) [(96) p.413] On its part, the ICRC had considered that the concept of the environment was extremely vague, and in the absence of a satisfactory definition, had deemed it best to avoid introducing it in the draft;

    (97) [(97) p.413] This Article 1 had the following wording in the first Soviet draft: "Each of the Parties to this Convention undertake not to develop meteorological, geophysical or any other scientific or technological means of influencing the environment, including the weather and the climate, for military and other purposes incompatible with the maintenance of international security, human well-being and health and furthermore never under any circumstances to resort to such means of influencing the environment and climate nor to carry out preparations for their use."(General Assembly, Resolution 3264 (XXIX), Annex;

    (98) [(98) p.413] "Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques" (47 States Parties at 31 December 1984). See in particular, J. Goldblat, "The ENMOD Convention Review Conference", in ' Disarmament, A Periodic Review by the United Nations, ' New York, Vol. III, No. 2, Summer 1984, p. 93;

    (99) [(99) p.413] The record of the CCD debates leaves little doubt that this wording is the result of an agreement between the major powers. Within the working group of Committee III of the Diplomatic Conference, the United States and the Soviet Union put forward similar views (large scale, prolonged, severe) during the discussion of a proposal by the Rapporteur. Whether it occurred within the CCD or within the Diplomatic Conference, the agreement was reached and led to the withdrawal of the proposals which had been submitted previously. In particular, see Report of the Conference of the Committee on Disarmament, Vol. I, United Nations General Assembly, 31st session, supplement No. 27 (A/31/27), p. 61, para. 273; p. 66, para. 299 and p. 93, para. 7;

    (100)[(100) p.414] See supra, p. 412;

    (101)[(101) p.414] CDDH/III/GT/35, p. 3, para. 11. The countries which participated in the Group were: Australia, Czechoslovakia, Finland, German Democratic Republic, Hungary, Ireland, the Netherlands, Spain, Sweden, Yugoslavia;

    (102)[(102) p.414] For example: Switzerland, Democratic Republic of Vietnam, Mongolia, Cyprus. Canada expressed the same opinion but "without throwing out the baby with the bathwater". Sweden pointed out that the problem had a transnational character;

    (103)[(103) p.415] Cf. Article 1: "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.";

    (104)[(104) p.415] By way of example the understanding annexed to the Convention mentions: earthquakes; tsunamis; an upset in the ecological balance of a region; changes in weather patterns (clouds, precipitation, cyclones of various types, and tornadic storms); changes in climate patterns; chnages in ocean currents; changes in the state of the ozone layer; and changes in the state of the ionosphere". (Report cited, A/31/27, p. 92);

    (105)[(105) p.415] Ibid., p. 72, para. 327;

    (106)[(106) p.415] Ibid., paras. 328-330;

    (107)[(107) p.415] Ibid., para. 330; these terms do not actually have the same meaning in the two instruments, as we will see;

    (108)[(108) p.415] Art. 2; for some specific examples, see supra, note 104;

    (109)[(109) p.415] Report cited A/31/27, p. 73, para. 332;

    (110)[(110) p.415] Report of the Group "Biotope", CDDH/III/GT/35, p. 2, para. 5;

    (111)[(111) p.415] Report of the Rapporteur, O.R. XV, p. 268, CDDH/215/Rev.1, para. 26;

    (112)[(112) p.415] Report of the Group "Biotope", p. 2, par. 7;

    (113)[(113) p.416] CCD/480, 20 February 1976, reproducing the text of a statement made by the representative of Australia on 24 November 1975 at the First Committee of the United Nations General Assembly;

    (114)[(114) p.416] Report cited, A/31/27, p. 91, understanding on interpretation, letter b);

    (115)[(115) p.416] O.R. XV, p. 268, CDDH/215/Rev.1, para. 27;

    (116)[(116) p.416] Like the oceans, the natural environment, taken in an ecological sense, "res communis", taken in an ecological sense. It cannot be appropriated but is for the use of everyone, without exclusive jurisdiction or sovereign rights. The most recent writers have advanced the concept of the "common heritage of mankind" (see A.C. Kiss, in 175 ' Hague Recueil ', 1982/II, p. 103, particularly pp. 116 and 174);

    (117)[(117) p.417] It is the understanding of "the Committee that, for the purposes of this Convention, the terms "widespread", "long-lasting" and "severe" shall be interpreted as follows:
    a) "widespread": encompassing an area on the scale of several hundred square kilometers;
    b) "long-lasting": lasting for a period of months, or approximately a season;
    c) "severe": involving serious or significant disruption or harm to human life, natural economic resources or other assets."
    Understanding on interpretation relating to Article 1, report cited, A/31/27, p. 91;

    (118)[(118) p.417] O.R. XV, p. 268, CDDH/215/Rev. 1, para. 27;

    (119)[(119) p.417] See supra, p. 414;

    (120)[(120) p.417] See supra, pp. 412-413; it is actually in these terms that ecological catastrophes are measured. At the time of the Amoco Cadiz disaster -- a tanker which lost 220,000 tons of oil off the coast of Brittany in the spring of 1978 -- it was estimated that it would take five to ten years for the equilibrium of the ecological system on the shore to recover, i.e., for the flora and fauna to return to their former level of existence (see 85 RGDIP, 1981/4, p. 892);

    (121)[(121) p.417] See supra, pp. 410-411;

    (122)[(122) p.418] "It is further understood that the interpretation set forth above [see supra, note 117] is intended exclusively for this Convention and is not intended to prejudice the interpretation of the same or similar terms if used in connexion with any other international agreement". Report cited, A/31/27, interpretative understandings, p. 91;

    (123)[(123) p.418] Vienna Convention on the Law of Treaties, Art. 31, para. 1;

    (124)[(124) p.418] Supra, pp. 406-407;

    (125)[(125) p.418] ' Lucerne Report ', p. 8, para. 22;

    (126)[(126) p.418] Ibid;

    (127)[(127) p.419] ' Lucerne Report ', p. 76, para. 273. The Report of the Rapporteur indicates that these two expressions "may be expected" and "are intended" were included for reasons of extreme caution. The latter alludes to deliberate harm directed against the natural environment, as a method or means of warfare, such as the destruction of natural resources. The former implies an objective norm concerning that which a State or an individual considers, or should consider, to cause the effects described (O.R. XV, p. 360, CDDH/III/275);

    (128)[(128) p.419] ' Venezuela ': "[...] on the understanding that this approval is without prejudice to Venezuela's position on the Convention on the prohibition of military or any other hostile use of environmental modification techniques" (O.R. VI, p. 118, CDDH/SR.39, Annex). ' Mexico ': "His delegation's support for paragraph 3 of Article 33 [35] could in no way be construed as a change in its Government's attitude to the Convention entitled "Convention on the prohibition of military or any other hostile use of environmental modification techniques" in which the words "widespread long-lasting or severe effects" appeared. Those words had not the same scope as they had in the context of the Protocol" (ibid., p. 100, CDDH/SR.39, para. 49). ' Argentina ': "The Argentine delegation interprets the provision which has now been approved as in no way connected with the work of the Conference of the Committee on Disarmament, which culminated in the Convention on the prohibition of military or any other hostile use of environmental modification techniques in respect of which the Argentine government has made its position clear at the appropriate time" (ibid., p. 113, CDDH/SR.39, Annex). ' Egypt ': "The Egyptian delegation emphasizes the fact that its acceptance of Article 33, paragraph 3, in no way prejudices its country's position on the Convention on the prohibition of military or any other hostile use of environmental modification techniques" (ibid., p. 114, CDDH/SR.39, Annex);

    (129)[(129) p.419] Report cited, A/31/27, p. 66, para. 298;

    (130)[(130) p.419] Federal Republic of Germany; see O.R. VI, p. 115, CDDH/SR.39, Annex;

    (131)[(131) p.420] United Kingdom: "We regard this paragraph as otiose repetition of Article 48 bis and would have preferred that paragraph 3 not be included in this Article. We consider that it is basically in order to protect the civilians living in the environment that the environment itself is to be protected against attack. Hence the provision on protection of the environment is in our view rightly placed in the section on protection of civilians. Now that Article 33 has been adopted with paragraph 3, we shall interpret that paragraph in the same way as Article 48 bis, which in our view is a fuller and more satisfactory formulation" (ibid., p. 118, CDDH/SR.39, Annex);