Reparation for Environmental Damage in Jus Post Bellum: The Problem of Shared Responsibility

Abstract

The problem of environmental damage caused during armed conflict has entered the international legal agenda fairly recently. Awareness over environmental protection in general has spurred an interest in the literature on the threats and harm to the environment posed by armed conflict. It is not a coincidence that the International Law Commission (ILC) has recently included in its agenda the topic of ‘Protection of the Environment in Relation to Armed Conflicts’. Among the reasons cited by the ILC for including the topic in the agenda was that the perspective of jus ad bellum and jus in bello, from which the issue was viewed, was too narrow.

The aim of this chapter is to study the problems that environmental damage in armed conflict poses to the determination of shared responsibility, and especially the determination of reparation, in the context of the jus post bellum. When two actors are engaged in armed conflict, there arise no serious issues as to sharing responsibility for violations. But the fact that modern conflicts involve on many occasions more than two actors (e.g. Libya 2011) complicates the matters arising out of environmental harm (among others), as there may be two or more actors contributing to the same harmful event. This is a typical situation of shared responsibility. Shared responsibility provides that the problem of reparation for environmental harm is to be examined in situations where there is a multiplicity of actors that contribute to a single harmful outcome. This definition covers the breach of obligations under jus ad bellum and jus in bello, as well as under international environmental law. The argument of this paper will be developed by viewing jus post bellum regarding environmental harm through the lens of shared responsibility.

Keywords: jus post bellum, environmental law, reparation, environmental damage