1 In this respect, this article draws on Steenberghe, Raphaël van, “The Impacts of Human Rights Law on the Regulation of Armed Conflict: A Coherency-Based Approach to Dealing with Both the ‘Interpretation’ and ‘Application’ Processes”, International Review of the Red Cross, Vol. 104, No. 919, 2022Google Scholar. See also Steenberghe, Raphaël van, “International Environmental Law as a Means for Enhancing the Protection of the Environment in Warfare: A Critical Assessment of Scholarly Theoretical Frameworks”, International Review of the Red Cross, Vol. 105, No. 924, 2023Google Scholar.

2 Steenberghe, Raphaël van, “The Interplay between International Humanitarian Law and International Environmental Law: Towards a Comprehensive Framework for a Better Protection of the Environment in Armed Conflict”, Journal of International Criminal Justice, Vol. 20, No. 5, 2022, p. 1152Google Scholar.

3 Ibid.

4 ILC, Draft Principles on Protection of the Environment in Relation to Armed Conflicts: Texts and Titles of the Draft Preamble and the Draft Principles adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.968, 20 May 2022 (PERAC Principles). The PERAC Principles were taken note of by the UN General Assembly in Protection of the Environment in Relation to Armed Conflict, UN Doc. A//77/104, 7 December 2022.

5 ICRC, Guidelines on the Protection of the Natural Environment in Armed Conflict: Rules and Recommendations Relating to the Protection of the Natural Environment Under International Humanitarian Law, with Commentary, Geneva, 25 September 2020 (ICRC Guidelines).

6 University of Geneva and Geneva Water Hub, Geneva List of Principles on the Protection of Water Infrastructure, Geneva, August 2019, available at: www.genevawaterhub.org/sites/default/files/atoms/files/gva_list_of_principles_protection_water_infra_www.pdf (all internet references were accessed in April 2024).

7 Harvard Law School International Human Rights Clinic and Conflict and Environment Observatory, Confronting Conflict Pollution: Principles for Assisting Victims of Toxic Remnants of War, 2020, available at: http://hrp.law.harvard.edu/wp-content/uploads/2020/09/Confronting-Conflict-Pollution.pdf.

8 UNEA Res. 2/15, “Protection of the Environment in Areas Affected by Armed Conflict”, 4 August 2016; UNEA Res. 3/1, “Pollution Mitigation and Control in Areas Affected by Armed Conflict or Terrorism”, 6 December 2017; UNEA Res. 6/12, “Environmental Assistance and Recovery in Areas Affected by Armed Conflict”, 1 March 2024.

9 See “Water, Peace and Security Arria-Formula Meeting”, Security Council Report, 25 October 2018, available at: www.whatsinblue.org/2018/10/water-peace-and-security-arria-formula-meeting.php.

10 UN Security Council, “Arria-Formula Meeting on the ‘Protection of the Environment during Armed Conflict’”, 7 November 2018; UN Security Council, “Arria-Formula Meeting on the Protection of the Environment in Armed Conflict”, 9 December 2019, available at: www.paxforpeace.nl/stay-informed/news/pax-briefs-the-un-security-council-on-conflict-and-environment. For a critical account of attempts to “securitize” climate change using the language of international law, see Cusato, Eliana, “Of Violence and (In)Visibility: the Securitisation of Climate Change in International Law”, London Review of International Law, Vol. 10, No. 2, 2022CrossRefGoogle Scholar.

11 Lucile Maertens and Malkit Shoshan, Greening Peacekeeping: The Environmental Impact of UN Peace Operations, Providing for Peacekeeping No. 17, International Peace Institute, 2018, available at: www.ipinst.org/wp-content/uploads/2018/04/1804_Greening-Peacekeeping.pdf.

12 See, for example, Environmental Law Institute et al., Natural Resource Programming in Post-Conflict Situations, Policy Brief No. 8, 2014, available at: www.environmentalpeacebuilding.org/assets/Documents/LibraryItem_000_Doc_426.pdf.

13 See for example, Environment and Humanitarian Action Connect, available at: https://ehaconnect.org.

14 See for example, Conflict and Environment Observatory, “Environment in Humanitarian Disarmament”, available at: www.ceobs.org/projects/project-one.

15 I would like to thank one of the peer reviewers for highlighting these points.

16 ICRC Guidelines, above note 5, p. 4. The Notre Dame Global Adaptation Initiative Country Index “summarizes a country's vulnerability to climate change and other global challenges in combination with its readiness to improve resilience”. See: https://gain.nd.edu/our-work/country-index.

17 OCHA, Global Humanitarian Overview 2023, 1 December 2022, p. 4, available at: https://reliefweb.int/report/world/global-humanitarian-overview-2023-enaresfr.

18 IPCC Working Group II, Sixth Assessment Report: Climate Change 2022: Impacts, Adaptation and Vulnerability, 2022.

19 Tobias Ide, “What Do We Know about Climate Change, Peace and Conflict?”, Toda Peace Institute, 8 March 2022, available at: https://toda.org/global-outlook/2022/what-do-we-know-about-climate-change-peace-and-conflict.html.

20 Ibid.

21 Slade, Tuiloma Neroni, “International Humanitarian Law and Climate Change”, in Suzannah Linton, Tim McCormack and Sandesh Sivakumaran (eds), Asia-Pacific Perspectives on International Humanitarian Law, Cambridge University Press, Cambridge, 2019, p. 643Google Scholar.

22 Bakker, Christine, “The Relationship between Climate Change and Armed Conflict in International Law: Does the Paris Climate Agreement Add Anything New?”, Peace Processes Online Review, Vol. 2, No. 1, 2016, p. 7Google Scholar.

23 For a comprehensive account of the link between armed conflict and its effects on environmental degradation, as well as on how conflict influences vulnerability to climate change impacts, see ICRC, When Rain Turns to Dust: Understanding and Responding to the Combined Impact of Armed Conflicts and the Climate and Environment Crisis on People's Lives, Geneva, 2020.

24 Protection of Civilians in Armed Conflict: Report of the Secretary-General, UN Doc. S/2020/366, 6 May 2020, p. 11, para. 44.

25 See T. Ide, above note 19.

26 Katharine J. Mach et al., “Climate as a Risk Factor for Armed Conflict”, Nature, Vol. 571, No. 7764, 2019, p. 196.

27 Ibid., p. 193.

28 This idea builds on Stefanik's claim that general principles of IEL could perform an interpretive and development function, among others, vis-à-vis international law. See Stefanik, Kirsten, “The Environment and Armed Conflict: Employing General Principles to Protect the Environment”, in Carsten Stahn, Jens Iverson and Jennifer S. Easterday (eds), Environmental Protection and Transitions from Conflict to Peace: Clarifying Norms, Principles, and Practices, Oxford University Press, Oxford, 2017Google Scholar.

29 See R. van Steenberghe, above note 2, esp. pp. 1128–1134.

30 PERAC Principles, above note 4, Principles 13, 14; ICRC Guidelines, above note 5, p. 48; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 43, available at: https://ihl-databases.icrc.org/en/customary-ihl/rules.

31 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 52.

32 Karen Hulme, “Climate Change and International Humanitarian Law”, in Rosemary Rayfuse and Shirley V. Scott (eds), International Law in the Era of Climate Change, Edward Elgar, Cheltenham, 2012, p. 202.

33 ILC, Report of the International Law Commission: Seventy-Third Session, UN Doc. A/77/10, Supp. 10, 2022, Chap. V, “Protection of the Environment in Relation to Armed Conflicts”, p. 145, Principle 14 commentary, para. 3.

34 Karen Hulme, War Torn Environment: Interpreting the Legal Threshold, Martinus Nijhoff, Leiden and Boston, MA, 2004, p. 77. This aspect is addressed in more detail in the following section on environment-specific provisions.

35 AP I, Αrt. 51(5)(b).

36 Michael N. Schmitt, “War and the Environment: Fault Lines in the Prescriptive Landscape”, in Jay E. Austin and Carl Ε. Bruch (eds), The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives, Cambridge University Press, Cambridge, 2000, p. 98.

37 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 (Nuclear Weapons Advisory Opinion), p. 242, para. 30.

38 See, for example, Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50; Germany, Law of Armed Conflict Manual, 1 May 2013, paras 434–436; United Kingdom, The Joint Service Manual of the Law of Armed Conflict, 2004, para. 12.24. Environmental damage has been qualified as collateral damage for the purposes of the proportionality principle under IHL. See, for example, European Union Military Committee, Avoiding and Minimizing Collateral Damage in EU-Led Military Operations Concept, EEAS (2015) 772 REV 8, 3 February 2016, para. 15: “Collateral Damage – The unintentional or incidental loss of life or injury to civilian persons or damage to civilian objects and/or environment arising from engagement of a legitimate military target” (citation omitted).

39 ILC, above note 33, p. 145, Principle 14 commentary, para. 7.

40 ICRC Customary Law Study, above note 30, p. 143, Rule 43(C); ICRC Guidelines, above note 5, Rule 7.

41 See Emanuela-Chiara Gillard, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of Proportionality Assessments, Chatham House, London, 2018, p. 41.

42 ICRC Guidelines, above note 5, p. 56, para. 118 (citation omitted).

43 Stockholm Declaration of the United Nations Conference on the Human Environment, Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/Rev.1, 1972, Principle 21: “States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

44 UN Framework Convention on Climate Change, 1771 UNTS 107, 9 May 1992 (entered into force 21 March 1994) (UNFCCC): “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

45 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 55, para. 101. See also ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), Merits, ICJ Reports 2015, p. 706, para. 104.

46 Brunnée, Jutta, “Harm Prevention”, in Lavanya Rajamani and Jacqueline Peel (eds), The Oxford Handbook of International Environmental Law, Oxford University Press, Oxford, 2021, p. 272CrossRefGoogle Scholar (emphasis in original).

47 Yiokasti Mouratidi, “You Say Precautions, I Say Prevention: Towards the Systemic Integration of International Humanitarian Law and International Environmental Law”, Yearbook of International Humanitarian Law, Vol. 25, 2024, p. 18, citing Leslie-Anne Duvic-Paoli and Jorge E. Viñuales, “Prevention of Environmental Harm”, in Jorge E. Viñuales (ed.), The UN Friendly Relations Declaration at 50: An Assessment of the Fundamental Principles of International Law, Cambridge University Press, Cambridge, 2020, pp. 301–302.

48 According to which, “[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Rio Declaration on Environment and Development, International Legal Materials, Vol. 31, 1992 (Rio Declaration).

49 Duvic-Paoli, Leslie-Anne, The Prevention Principle in International Environmental Law, Cambridge Studies on Environment, Energy and Natural Resources Governance, Cambridge University Press, Cambridge, 2018, p. 265CrossRefGoogle Scholar.

50 See K. Stefanik, above note 28, p. 110, citing Zander, Joakim, The Application of the Precautionary Principle in Practice: Comparative Dimensions, Cambridge University Press, Cambridge, 2010, p. 14CrossRefGoogle Scholar.

51 Nuclear Weapons Advisory Opinion, above note 34, pp. 241–242, para. 29 (“The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”); Birnie, Patricia, Boyle, Alan and Redgwell, Catherine, International Law and the Environment, 3rd ed., Oxford University Press, Oxford, 2009, p. 143Google Scholar.

52 ICRC Guidelines, above note 5, Rule 8. The PERAC Principles reaffirm that “the principles and rules on … precautions shall be applied to the environment, with a view to its protection” PERAC Principles, above note 4, Principle 14.

53 AP I, Art. 57.

54 EECC, Western Front, Aerial Bombardment and Related Claims: Eritrea's Claims 1, 3, 5, 9–13, 14, 21, 25 & 26, Partial Award, 45 ILM 396, 19 December 2005, p. 425.

55 AP I, Art. 57(2)(a)(i).

56 Feasibility is widely translated into the standard of practicality, the latter calling for “war-fighter” inquiry. Michael N. Schmitt, “The Law of Targeting”, in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, p. 163.

57 AP I, Art. 57(2)(a)(ii).

58 Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 1342 UNTS 168, 10 October 1980 (entered into force 2 December 1983, amended 3 May 1996), Art. 3(4). See also Protocol (III) on Prohibitions or Restrictions on the Use of Incendiary Weapons, 1342 UNTS 171, 10 October 1980 (entered into force 2 December 1983), Art. 1(5) (“‘Feasible precautions’ are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations”).

59 Upon ratification of AP I, Italy declared: “The Italian Government understands, in relation to Articles 41, 56, 57, 58, 78 and 86 that the word ‘feasible’ is to be understood as practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Italy, “Declarations Made at the Time of Ratification”, 27 February 1986. Upon ratification of AP I, Belgium declared: “[I]n view of the travaux préparatoires, the expression ‘feasible precautions’ in Article 41 must be interpreted in the same way as the ‘feasible precautions’ mentioned in Articles 57 and 58, that is, those that can be taken in the circumstances prevailing at the moment, which include military considerations as much as humanitarian ones.” Belgium, “Interpretative Declarations Made at the Time of Ratification”, 20 May 1986. Upon ratification of AP I, the Netherlands declared: “The word ‘feasible’ is to be understood as practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Netherlands, “Declarations Made at the Time of the Ratification (for the Kingdom's Territory within Europe and the Netherlands Antilles and Aruba)”, 10 July 1987. Upon ratification of AP I, Spain interpreted the term “feasible” as meaning that “the matter in question is feasible or possible in practice, taking into account all the circumstances prevailing at the time, including humanitarian and military aspects”. Spain, “Interpretative Declarations Made at the Time of Ratification”, 21 April 1989. Upon accession to AP I, Algeria stated that the expressions “feasible precautions” (Art. 41(3)), “everything feasible” (Art. 57(2)) and “to the maximum extent feasible” (Art. 58) are to be interpreted as referring to precautions and measures which are feasible in view of the circumstances and the information and means available at the time. Algeria, “Interpretative Declarations Made at the Time of Accession”, 16 August 1989. Upon ratification of AP I, Canada stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Canada, “Reservations Made at the Time of Ratification”, 20 November 1990. Upon ratification of AP I, Germany stated that it understood the word “feasible” to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”. Germany, “Declarations made at the time of ratification”, 14 February 1991, para. 2. Upon ratification of AP I, the United Kingdom stated that it understood the term “feasible” as used in the Protocol to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”. United Kingdom, “Reservations”, 28 January 1998, reservation (b). The United Kingdom further stated that the obligation mentioned in Article 57(2)(b) of AP I only applied to “those who have the authority and practical possibility to cancel or suspend the attack”. Ibid., reservation (c). Upon ratification of AP I, Ireland declared: “It is the understanding of Ireland that in relation to Article 41, 56, 57, 58, 78 and 86 the word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances at the time, including humanitarian and military considerations.” Ireland, “Declarations Made at the Time of Ratification”, 19 May 1999. Upon ratification of AP I, France stated that it considered that the term “feasible” as used in the Protocol meant “that which can be realized or which is possible in practice, taking into account all circumstances ruling at the time, including humanitarian and military considerations”. France, “Declarations”, 11 April 2001. The above cited declarations are available at: https://treaties.un.org/pages/showdetails.aspx?objid=08000002800f3586.

60 Claude Pilloud and Jean Pictet, in Yves Sandoz, Christophe Swinarski and Bruno Zimmerman, Commentary on the Additional Protocols, ICRC, Geneva, 1987, p. 682, para. 2198.

61 K. Stefanik, above note 28, p. 115: “The nature of the obligations said to flow from precaution in IHL would seem to suggest it has more of a preventive than precautionary nature, as precaution is understood in the IEL context, since the IHL precaution provisions appear to target commonsense risks to civilians which do not attract a high degree of uncertainty.” Cf. Onita Das, Environmental Protection, Security and Armed Conflict: A Sustainable Development Perspective, Edward Elgar, Cheltenham, 2013, p. 122: “[The precautionary] principle should equally be taken into consideration when selecting military targets or objectives during conflict.”

62 Y. Mouratidi, above note 47, p. 19, citing L.-A. Duvic-Paoli and J. E. Viñuales, above note 47.

63 Y. Mouratidi, above note 47, p. 28.

64 Art. 58, AP I: “The Parties to the conflict shall, to the maximum extent feasible: (a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.”

65 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed., Cambridge University Press, Cambridge, 2016, p. 173Google Scholar.

66 EECC, above note 54.

67 Bothe, Michael, “Precaution in International Environmental Law and Precautions in the Law of Armed Conflict”, Goettingen Journal of International Law, Vol. 10, No. 1, 2020, p. 278Google Scholar.

68 Y. Dinstein, above note 65, p. 166.

69 I would like to thank one of the reviewers for bringing this point to my attention.

70 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 1108 UNTS 152, 10 December 1976 (entered into force 5 October 1978) (ENMOD Convention).

71 K. Hulme, above note 34, pp. 78–79.

72 Ibid.

73 Karen Hulme, “Natural Environment”, in E. Wilmshurst and S. Breau (eds), above note 56, p. 679.

74 Ibid., p. 680. Hulme provides certain examples of implementing the obligation under consideration: “(a) undertaking a rigorous environmental assessment involving a thorough investigation of intelligence data and evaluation of the potential environmental harm of a particular attack scenario; (b) the alteration of an attack scenario to avoid potential environmental harm; and (c) calling off a planned attack due to the potential environmental harm.” Ibid., p. 681.

75 Koppe, Erik V., The Use of Nuclear Weapons and the Protection of the Environment During International Armed Conflict, Hart, Oxford and Portland, OR, 2008, p. 149Google Scholar (emphasis added).

76 ICRC Guidelines, above note 5, p. 30, para. 45 (emphasis added), citing the relevant practice of NATO regarding undesirable air emissions.

77 See the Military Emissions Gap website, available at: https://militaryemissions.org/; Lennard de Klerk et al., Climate Damage Caused by Russia's War in Ukraine, Initiative on GHG Accounting of War, 1 December 2023; Sarah Mcfarlane and Valerie Volcovici, “Exclusive: Accounting for War – Ukraine's Climate Fallout”, Reuters, 6 June 2023.

78 Paris Agreement, 3156 UNTS 88, 12 December 2015 (entered into force 4 November 2016).

79 ICRC Guidelines, above note 5, p. 40 fn. 192, citing K. Hulme, above note 34, p. 44.

80 See M. Bothe, above note 67, p. 279.

81 “Ukrainian Oil Refining and Fuel Storage Infrastructure Hit by Russian Attacks”, S&P Global, 3 April 2022, available at: www.spglobal.com/commodityinsights/en/market-insights/latest-news/oil/040322-ukrainian-oil-refining-and-fuel-storage-infrastructure-hit-by-russian-attacks.

82 K. Hulme, above note 32, p. 203.

83 ENMOD Convention, above note 70, Art. I.

84 Onita Das, “The Impact of Armed Conflict on Sustainable Development: A Holistic Approach”, in Noëlle Quénivet and Shilan Shah-Davis (eds), International Law and Armed Conflict: Challenges in the 21st Century, T. M. C. Asser Press, The Hague, 2010, p. 135.

85 ICRC Guidelines, above note 5, p. 44, para. 85.

86 Roberts, Adam, “The Law of War and Environmental Damage”, in Jay E. Austin and Carl E. Bruch (eds), The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives, Cambridge University Press, Cambridge, 2000, p. 59Google Scholar.

87 Low, Luan and Hodgkinson, David, “Compensation for Wartime Environmental Damage: Challenges to International Law after the Gulf War”, Virginia Journal of International Law, Vol. 35, No. 2, 1994, p. 432Google Scholar (citation omitted).

88 ICRC Customary Law Study, above note 30, Rule 45, p. 151.

89 K. Hulme, above note 73, p. 235.

90 ICRC Customary Law Study, above note 30, p. 155.

91 Ibid., p. 151.

92 ICRC Guidelines, above note 5, Rule 3(B): “For States party to the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention), the 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 is prohibited” (emphasis added).

93 PERAC Principles, above note 4, Principle 17.

94 “Understanding relating to Article II”, in Report of the Conference of the Committee on Disarmament, Vol. 1, UN Doc. A/31/27, 1976 (emphases added).

95 Silja Vöneky, “The ENMOD Convention”, in Eric P. J. Myjer and Thilo Marauhn (eds), Research Handbook on International Arms Control Law, Edward Elgar, Cheltenham, 2022, p. 369.

96 Schmitt, Michael N., “Green War: An Assessment of the Environmental Law of International Armed Conflict”, Yale Journal of International Law, Vol. 22, 1997, p. 84Google Scholar.

97 See ICRC Guidelines, above note 5, Rule 10, p. 65.

98 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 14.

99 K. Hulme, above note 32, pp. 211–212 (see sources cited therein). On the protection of freshwater resources in relation to an armed conflict, see Tignino, Mara and Kebebew, Tadesse, “The Legal Protection of Freshwater Resources and Related Installations during Warfare”, Journal of International Criminal Justice, Vol. 20, No. 5, 2022Google Scholar.

100 M. N. Schmitt, above note 96, pp. 77–78, esp. fn. 370.

101 C. Bakker, above note 22, p. 9, citing K. Hulme, above note 32, p. 198.

102 Abby Zeith and Eirini Giorgou, “Dangerous Forces: The Protection of Nuclear Power Plants in Armed Conflict”, Humanitarian Law and Policy Blog, 18 October 2022, available at: https://blogs.icrc.org/law-and-policy/2022/10/18/protection-nuclear-power-plants-armed-conflict/, citing ICRC Guidelines, above note 5, p. 70, para. 165.

103 K. Hulme, above note 32, p. 200.

104 Paris Agreement, above note 78.

105 See Pezzot, Romina Edith, “IHL in the Era of Climate Change: The Application of the UN Climate Change Regime to Belligerent Occupations”, International Review of the Red Cross, Vol. 105, No. 923, 2023CrossRefGoogle Scholar.

106 ILC, Draft Articles on the Effects of Armed Conflicts on Treaties, with Commentaries, in Yearbook of the International Law Commission, Vol. 2, Part II, 2011.

107 Ibid., Draft Art. 7 in conjunction with Annex, subpara. (g).

108 C. Bakker, above note 22, pp. 22–23.

109 Paris Agreement, above note 78, Art. 5(1).

110 Ibid., Art. 5(2).

111 Ibid., Art. 7(1): “Parties hereby establish the global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change, with a view to contributing to sustainable development and ensuring an adequate adaptation response in the context of the temperature goal referred to in Article 2.”

112 See ILC, Provisional Summary of the 3572nd Meeting, UN Doc. A/CN.4/SR.3572, 29 April 2022, p. 10.

113 Vordermayer, Markus, “The Extraterritorial Application of Multilateral Environmental Agreements”, Harvard International Law Journal, Vol. 59, No. 1, 2018, pp. 114–115Google Scholar (citation omitted). See also the comprehensive account provided by R. E. Pezzot, above note 105.

114 Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, C.N.872.2016.TREATIES-XXVII.2.f, 15 October 2016 (entered into force 1 January 2019).

115 Philippe Sands et al., Principles of International Environmental Law, 4th ed., Cambridge University Press, Cambridge, 2018, p. 278.

116 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (Hague Regulations), Art. 43: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

117 Baudichau, Eva, “Another Brick in the Wall: Climate Change (In)Adaptation under the Law of Belligerent Occupation”, International Review of the Red Cross, Vol. 105, No. 924, 2023, p. 1351CrossRefGoogle Scholar. Baudichau makes this claim with regard to the adoption of adaptation measures and strategies, but the same logic could equally dictate the adoption of respective mitigation measures.

118 See Nuclear Weapons Advisory Opinion, above note 37, pp. 241–242, para. 29.

119 For a comprehensive account, see R. E. Pezzot, above note 105.

120 This principle was first proclaimed by an arbitration tribunal in the context of a US claim that Canada was liable for the damages caused by transboundary air emissions originating from a smelter. Arbitral Tribunal, Trail Smelter Case (United States v. Canada), Award, III RIAA, 16 April 1938 and 11 March 1941, p. 1965.

121 Rio Declaration, above note 48, Principle 2 (emphasis added).

122 ICJ, Pulp Mills, above note 45, p. 56, para. 101. This understanding has recently been confirmed by the same Court in ICJ, Certain Activities, above note 45, pp. 706–707, para. 104.

123 See Hague Regulations, above note 116, Art. 43; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1959) (GC IV), Art. 64.

124 See, inter alia, GC IV, Art. 53, which provides that “[a]ny destruction by the Occupying Power 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, is prohibited, except where such destruction is rendered absolutely necessary by military operations”.

125 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports 1971, p. 54, para. 118.

126 IACtHR, The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity), Advisory Opinion OC-23/17, 15 November 2017, available at: https://corteidh.or.cr/docs/opiniones/seriea_23_ing.pdf. For a detailed examination of the Advisory Opinion, see Christopher Campbell-Duruflé and Sumudu Anopama Atapattu, “The Inter-American Court's Environment and Human Rights Advisory Opinion: Implications for International Climate Law”, Climate Law, Vol. 8, Nos 3–4, 2018.

127 See ILC, Provisional Summary of the 3430th Meeting, UN Doc. A/CN.4/SR.3430, 16 July 2018, p. 7.

128 American Convention on Human Rights, OAS Treaty Series No. 36, 22 November 1969 (entered into force 18 July 1978).

129 Papantoniou, Angeliki, “Advisory Opinion on the Environment and Human Rights”, American Journal of International Law, Vol. 112, No. 3, 2018CrossRefGoogle Scholar. See IACtHR, above note 126, esp. paras 97–101, 124.

130 Longobardo, Marco, “State Responsibility for International Humanitarian Law Violations by Private Actors in Occupied Territories and the Exploitation of Natural Resources”, Netherlands International Law Review, Vol. 63, No. 3, 2016, p. 268Google Scholar (and sources cited therein).

131 International Tribunal for the Law of the Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (No. 17), Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 44, para. 120.

132 PERAC Principles, above note 4, Principle 21.

133 ILC, “Statement of the Chairperson of the Drafting Committee, Mr Ki Gab Park”, 27 May 2022, p. 25, available at: https://legal.un.org/docs/?path=../ilc/documentation/english/statements/2022_dc_chairman_statement_peac.pdf&lang=E.

134 ILC, First Report on the Protection of the Environment in Relation to Armed Conflicts by Marja Lehto, Special Rapporteur, UN Doc. A/CN.4/720, 30 April 2018, p. 43, para. 88.

135 ICJ, Pulp Mills, above note 45, pp. 55–56, para. 101. As the ICJ further clarifies, this due diligence obligation traces its origin in the famous dictum of the ICJ, Corfu Channel (United Kingdom v. Albania), Merits, Judgment, ICJ Reports 1949, p. 22 (“every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”).

136 R. E. Pezzot, above note 105, p. 1083 (citation omitted).

137 ICRC, above note 23, p. 21 (citation omitted).

138 Human Rights Committee, General comment No. 36, “Article 6: Right to life”, UN Doc. CCPR/C/GC/36, 3 September 2019, para. 62.