U.S. military responsibility for environmental cleanup in contingency environments.

• Author: Neuhauser, Jennifer Ann
• Position: III. Conventional International Law and Customary International Law through VII. Conclusion, with footnotes, p. 151-179

3. CONVENTIONAL INTERNATIONAL LAW AND CUSTOMARY INTERNATIONAL LAW

   In 2010, DOD managed permanent installations in thirty-eight foreign countries, the majority located in Germany (218 sites), Japan (115 sites), and South Korea (86 sites). (177) In countries with permanent DOD facilities, bilateral agreements between the United States and the host nation govern U.S. forces' obligations in addressing environmental harm. (178) For example, GAO found in 1988 that the U.S. military was paying about $28.8 million annually for "maneuver damage" claims in Germany, mostly for damage to roads from military vehicles. (179) The terms of this U.S.--Germany arrangement, established by NATO's Status of Forces Agreement (SOFA), provided "for the settlement of claims for damage allegedly caused by U.S. armed forces in the territory of other member states." (180) However, such agreements rarely exist in contingency environments where the host-nation government is either nonexistent or in transition. (181) Although U.S. federal statutes cover a variety of environmental harms, generally speaking, these laws do not apply extraterritorially. (182) This Part discusses the international law governing U.S. military operations in contingency environments.

   International law consists of two basic categories: conventional law and customary international law. (183) Conventional international law covers formal agreements among countries, such as treaties, while customary international law requires the emergence of a general practice so widespread "it carries with it a sense of legal obligation." (184) Customary international law does not bind states consistently rejecting its application. (185) Given there is no hard and fast rule regarding when and how a general practice becomes part of custom international law, there is often ambiguity and inconsistency in its application. (186) Nonetheless, some principles are so widespread and so established as to be generally accepted as part of customary international law. (187) Most commentators agree that conventional international law and customary international law carry equal weight in the international community. (188)

   1. Conventional International Law

      The United States is well known for its reluctance to sign or participate in international treaties and agreements, environmental or otherwise. (189) Nevertheless, some treaties affect how the U.S. military handles environmental issues in contingency environments due to partnerships with other countries who are treaty participants. For example, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, (190) signed but not ratified by the United States, "places limits on the generation, treatment and international shipment of hazardous waste." (191) The treaty, signed by 180 states and the European Union, (192) "significantly complicated" overseas operations of U.S. forces, according to Jim Carr, an attorney for the DOD's Defense Reutilization Marketing Service. (193) First proposed in 1987, the treaty aimed to ban the exports of hazardous wastes from developed to developing countries. (194) According to Sharron Philo, Associate General Counsel at the Defense Logistics Agency, "[i]n the absence of ratification, it is DOD policy to comply with the provisions of the Convention to the extent possible." (195) Ms. Philo observed that while waste generated at U.S. facilities and disposed of on-site is not problematic, waste "shipped back to the U.S. (or to a third country) ... is considered a transboundary movement ... triggering] Basel compliance." (196) "In these situations, the country of export would be the host country (not the U.S.)." (197) The Basel Convention resulted in instances where hazardous waste could not be shipped back to the United States for proper disposal due to the governments of Spain and Panama refusing to allow the waste to transit the Straits of Gibraltar and Panama Canal. (198) Such contingencies resulted in greater reliance in on-site disposal and host-nation contractors, potentially causing even more hazardous waste accumulation and eventually leading to on-site dumping. (199)

      Though not applicable in current post-conflict areas, the United States is also a signatory to the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of 1977 (ENMOD). (200) ENMOD arose in the wake of the use of mechanical and chemical defoliants--such as Agent Orange--and cloud seeding techniques in Vietnam, and is designed to prohibit the "hostile use of environmental modification techniques having widespread, long-lasting, or severe effects." (201) ENMOD does not, in and of itself, protect the environment from damage or destruction in warfare; rather, "it places limitations on environmental modification for hostile purposes." (202) In reality, the treaty does not afford much protection for the environment, since "most wartime environmental damage results from attacks against enemy forces" rather than attempts to modify the environment, and "[m]ost of the prohibited techniques are militarily unrealistic anyway." (203)

      Other treaties protecting the environment include the Hague Convention, which codified the principle of customary international law stating methods of injuring the enemy are not unlimited. (204) Hague Convention Number IV (Hague IV) and its accompanying regulations marked the first time environmental principles were incorporated into treaty law. (205) The accompanying regulations forbid the destruction of enemy property "unless such destruction ... be imperatively demanded by the necessities of war." (206) The use of the words "enemy property" rather than "environment" have been criticized as being of limited utility to protect the environment of a country. This, along with an obligation "on occupying forces to preserve property in occupied territory" (207) means the onus is to protect discrete parcels of land associated with an owner, rather than the environment. However, the incorporation of international customary law under the Martens Clause causes U.S. military legal advisors, also known as Judge Advocates, to advise commanders that "environmental protections enjoy the widest spectrum of application of any of the [law of armed conflict] conventions; they apply to all property, wherever located, and by whomever owned." (208) Again, the application is to property, rather than to environment. While other treaties specifically reference the environment, they lack the "wide application enjoyed by Hague IV." (209) Article 23(g) of Hague IV forbids the destruction or damage of property in the absence of military necessity, (210) a principle of international law discussed below. When analyzing the principle of military necessity regarding the destruction of property, judge advocates are instructed to "pay particular attention to the geographical extent (i.e., how widespread the damage will be), longevity, and severity of the damage upon the target area's environment." (211)

      According to Professor Margaret Okorodudu-Fubara's work on the legal implications of "environmental warfare" in the Persian Gulf War, (212) two treaties provide the greatest protection to the environment during armed conflict. These treaties are the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (Fourth Geneva Convention) (213) and the Additional Protocol to the Geneva Conventions of 1949, and Relating to the Protection of the Victims of International Conflicts of 1977 (Protocol I). (214) Article 53 of the Fourth Geneva Convention protects the environment of an occupied territory by prohibiting the destruction or damage of "real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations," unless absolutely necessary for lawful military purposes. (215)

      Under Article 147 of the Fourth Geneva Convention, "extensive damage or destruction of property not justified by military necessity ... and carried out unlawfully and wantonly [constitutes a] grave breach," requiring prosecution and extradition of persons suspected of committing the breach. (216) Judge advocates are reminded:

      A simple breach only requires parties to take measures necessary for the suppression of the type of conduct that caused the breach. United States policy requires the prompt reporting and investigation of all alleged war crimes (including environmental violations), as well as taking appropriate corrective action as a remedy when necessary. (217) Adam Roberts, in his essay on the law of war and environmental damage, observes the inclusion of this prohibition "in a treaty that has virtually universal acceptance by states, and is indisputably in force in international wars." (218)

      The United States has not ratified the 1977 Protocols Additional to the Geneva Conventions (API and APII) and is therefore only bound by those provisions reflecting customary international law and those restating parts of the Fourth Geneva and Hague Conventions. (219) Protocol I goes beyond baseline protections of property, instead extending a prohibition on "methods or means of warfare which are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment" (220) and "thereby to prejudice the health or survival of the population." (221)

      Protocol I differs from previous attempts at protecting the environment by setting a maximum threshold of permissible environmental destruction, rather than employing a balancing test of military necessity versus expected destruction. (222) Regardless of the amount of justification or strategic importance of such destruction, any act that exceeds this threshold constitutes a violation of the law of armed conflict. (223) Articles 35 and 55 define this limit as any method of warfare "which [is]...