Advancing the Legal Protection of the Environment in Relation to Armed Conflict: Protocol I’s Threshold of Impermissible Environmental Damage and Alternatives

In: Nordic Journal of International Law
Carson ThomasInstitute of International Law and Justice Scholar and J.D. Candidate, New York University School of Law, New York, NY, USA

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This article presents both legal and strategic arguments for increasing the level of environmental protection in wartime within the legal context created by Articles 35 and 55 of Additional Protocol I. These provisions bifurcate the legal protection of the environment in armed conflict. Above the threshold, environmental damage is prohibited. Beneath the threshold, other international humanitarian law instruments and customary principles apply and may offer environmental protection, usually by balancing environmental damage against military necessity. The objective of this article is to propose legal and strategic frameworks to be addressed to military decision-makers considering environmentally harmful actions. It argues that the principle of military necessity, including strategic considerations, can be found compatible with enhanced environmental protections.

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