The Use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict (Studies in International Law)

459 Pages·2008·1.81 MB·English

by  Erik Koppe

(A) Koppe Prelims 1/4/08 16:29 Page i
THE USE OF NUCLEAR WEAPONS AND
THE PROTECTION OF THE ENVIRONMENT
DURING INTERNATIONAL
ARMED CONFLICT
In 1996, the International Court of Justice delivered an Advisory Opinion
on the legality of the use of nuclear weapons in which the Court stated that
‘while the existing international law relating to the protection and safe-
guarding of the environment does not specifically prohibit the use of
nuclear weapons it indicates important environmental factors that are
properly to be taken into account in the context of the implementation of
the principles and rules of the law applicable in armed conflict.’
The present work analyses this conclusion, focusing on the question of
whether or not the use of nuclear weapons during international armed
conflict would violate existing norms of public international law relating
to the protection and safeguarding of the environment. Although the use
of weaponry during armed conflict is usually related to the protection of
individuals, the rapidly emerging appreciation of, and the worldwide
realisation of the intrinsic value of, the natural environment as an indis-
pensable asset for the continuation of life, including human life, on this
planet, both for present and future generations, warrants a thorough and
extensive examination of the question of the (il)legality of the employment
of nuclear weapons from the point of view of international environmental
protection law.
The book consists of two parts. Part I discusses the historical develop-
ment and the effects of nuclear weapons; Part II discusses the protection of
the environment during international armed conflict under ius in bello, ius
ad bellumand ius pacis. Only then is it possible to assess the legality of the
use of nuclear weapons under this particular set of rules.
Studies in International Law: Volume 18
(A) Koppe Prelims 1/4/08 16:29 Page ii
Studies in International Law
Volume 1: Between Light and Shadow: The World Bank, the International
Monetary Fund and International Human Rights Law
Mac Darrow
Volume 2: Toxics and Transnational Law: International and European Regulation
of Toxic Substances as Legal Symbolism
Marc Pallemaerts
Volume 3: The Chapter VII Powers of the United Nations Security Council
Erika de Wet
Volume 4: Enforcing International Law Norms Against Terrorism
Edited byAndrea Bianchi
Volume 5: The Permanent International Criminal Court
Edited by Dominic McGoldrick, Peter Rowe and Eric Donnelly
Volume 6: Regional Organisations and the Development of Collective Security
Ademola Abass
Volume 7: Islamic State Practices, International Law and the Threat from
Terrorism: A Critique of the ‘Clash of Civilizations’ in the New World Order
Javaid Rehman
Volume 8: Predictablity and Flexibility in the Law of Maritime Delimitation
Yoshifumi Tanaka
Volume 9: Biotechnology and International Law
Edited by Francesco Francioni and Tullio Scovazzi
Volume 10: The Development of Human Rights Law by the Judges of the
International Court of Justice
Shiv Bedi
Volume 11: The Environmental Accountability of the World Bank to Third Party
Non-State Actors
Alix Gowlland-Gualtieri
Volume 12: Transnational Corporations and Human Rights
Edited by Olivier De Schutter
Volume 13: Biotechnologies and International Human Rights
Edited by Francesco Francioni
Volume 14: Human Security and International Law
Barbara von Tigerstrom
Volume 15: The Arms Trade and International Law
Zeray Yihdego
Volume 16: Africa: Mapping New Boundaries in International Law
Edited by Jeremy Levitt
Volume 17: Forced Migration, Human Rights and Security
Edited by Jane McAdam
(A) Koppe Prelims 1/4/08 16:29 Page iii
The Use of Nuclear
Weapons and the Protection
of the Environment
during International
Armed Conflict
Erik Koppe
OXFORD AND PORTLAND, OREGON
2008
(A) Koppe Prelims 1/4/08 16:29 Page iv
Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
920 NE 58th Avenue, Suite 300
Portland, OR 97213-3786
USA
Tel: [phone] or toll-free: (1)-800-944-6190
Fax: [phone]
E-mail: [email protected]
Website: www.isbs.com
© Erik Koppe 2008
Erik Koppe has asserted his rights under the Copyright, Designs and Patents Act 1988,
to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, without the prior permission of
Hart Publishing, or as expressly permitted by law or under the terms agreed with
the appropriate reprographic rights organisation. Enquiries concerning reproduction
which may not be covered by the above should be addressed to Hart Publishing at the
address below.
Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW
Telephone: [phone] Fax: [phone]
E-mail: [email protected]
Website: http://www.hartpub.co.uk
British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84113- 745-2
Typeset by Hope Services Ltd, Abingdon
Printed and bound in Great Britain by
TJ International Ltd, Padstow, Cornwall
(A) Koppe Prelims 1/4/08 16:29 Page v
Acknowledgments
This book could not have been written without the help and support of
a number of people. First of all, I would like to thank my promotor Prof
Dr Wil D Verwey for putting his trust in me when he undertook to super-
vise me for this study; for remaining confident in a positive outcome; and
for making it possible for me to finish this project in Groningen. Wil, I am
grateful for the fact that you gave me the liberty to carry out this research
independently; that you were patient when I was late handing in my chap-
ters; and that you reviewed my drafts critically and with great attention
for detail. More importantly, however, I value your guidance and friend-
ship over the last couple of years.
Secondly, I would like to thank my daily supervisor Dr André JJ de
Hoogh for reviewing my chapters quickly and carefully, despite a heavy
workload and a large number of responsibilities within the Department of
International and Constitutional Law. André, I greatly appreciate your aid
and comments. Your general knowledge of public international law has
helped me out more than once and your dedication to the study of inter-
national law is exemplary.
Thirdly, I am honored that Prof Dr M Bothe, Prof Dr HHG Post, and Prof
Dr N Schrijver were willing to take a seat on the Manuscript Committee
and I am indebted to them for their willingness to read the manuscript
during the summer.
And finally, I would like to thank my friends and family, in particular
my parents Marnix and Kora Koppe, and my brother and sister, Manuel
and Esther, for their love and support. Your faith, enthusiasm, and encour-
agements have been invaluable during the writing of this thesis!
(A) Koppe Prelims 1/4/08 16:29 Page vi
(A) Koppe Prelims 1/4/08 16:29 Page vii
Contents
Acknowledgments v
Introduction 1
Part I 9
I Nuclear Weapons in Historical Perspective 11
1 Introduction 11
2 Nuclear Physics 11
2.1 Introduction 11
2.2 Nuclear Energy 14
2.2.1 Introduction 14
2.2.2 Nuclear Fission 15
2.2.3 Difficulties 17
3 The Manhattan Project 20
3.1 Introduction 20
3.2 Fissionable Materials 22
3.3 Bomb Design 23
3.4 Test Explosion 26
3.5 Hiroshima and Nagasaki 29
4 The Hydrogen Bomb 36
5 Developments Outside the United States 40
5.1 Introduction 40
5.2 The United Kingdom 40
5.3 Germany 41
5.4 Japan 43
5.5 The Soviet Union 44
5.6 Further Proliferation 45
II Nuclear Weapons and Their Effects 47
1 Introduction 47
2 Nuclear Weapon Systems 48
2.1 Introduction 48
2.2 Delivery Vehicles 50
2.2.1 Introduction 50
2.2.2 Strategic Delivery Vehicles 53
2.2.3 Non-Strategic Delivery Vehicles 59
2.3 Warhead 60
(A) Koppe Prelims 1/4/08 16:29 Page viii
viii Contents
3 Nuclear Explosions 61
3.1 Introduction 61
3.2 Types of Nuclear Explosions 62
3.2.1 Introduction 62
3.2.2 Air Burst 63
3.2.3 Surface Burst 65
3.2.4 Sub-surface Burst 66
4 The Effects of Nuclear Explosions 68
4.1 Introduction 68
4.2 Direct Effects 68
4.2.1 Introduction 68
4.2.2 Blast 69
4.2.3 Thermal Radiation 73
4.2.4 Electromagnetic Pulse 77
4.2.5 Nuclear Radiation 79
4.3 Indirect Effects 101
Part II 107
III The Protection of the Environment During International Armed
Conflict Under Ius in Bello 109
1 Introduction 109
1.1 Introduction 109
1.2 Historical Development 109
1.3 Foundations of Ius in Bello 113
1.4 Principles of Ius in Bello 116
1.5 Terminology 120
1.6 Format 122
2 Direct Protection 122
2.1 Introduction 122
2.2 Treaty Law 123
2.2.1 Introduction 123
2.2.2 The Environmental Modification Convention 124
2.2.3 Additional Protocol I 139
2.2.4 The Certain Conventional Weapons Convention 180
2.2.5 The Statute of the International Criminal Court 189
2.3 Customary International Law 204
2.3.1 Introduction 204
2.3.2 Customary Status Treaty Provisions 214
2.3.3 Other Customary Rules Directly Protecting the
Environment 246
3 Indirect protection 278
(A) Koppe Prelims 1/4/08 16:29 Page ix
Contents ix
3.1 Introduction 278
3.2 The Protection of Civilian Objects 279
3.2.1 Introduction 279
3.2.2 Protection of Civilian Objects before 1977 280
3.2.3 Protection of Civilian Objects after 1977 289
3.2.4 Legal Appraisal 296
3.3 The Law of Neutrality 297
IV The Protection of the Environment During International Armed
Conflict Under Ius ad Bellum 309
1 Introduction 309
2 Security Council Resolution 687 309
2.1 Introduction 309
2.2 The Scope of Iraq’s Liability 310
2.3 The United Nations Compensation Commission 313
3 The Relationship between Ius ad Bellumand Ius in Bello 317
3.1 Introduction 317
3.2 The Distinction Between Ius ad Bellumand Ius in
Bello 318
3.3 The Financial Settlement of War Damages 324
3.4 Converging Responsibilities under Ius ad Bellumand
Ius in Bello 328
V The Protection of the Environment During International Armed
Conflict UnderIus Pacis 335
1 Introduction 335
2 The Relationship between Ius Pacisand Ius in Bello 335
2.1 General 335
2.2 The Relationship between Human Rights Law and
Ius in Bello 343
2.3 The Relationship between International Environmental
Law and Ius in Bello 349
2.3.1 Introduction 349
2.3.2 Belligerent vs Belligerent 349
2.3.3 Belligerent vs Non-Belligerent 359
Appraisal and Conclusions 365
1 Introduction 365
2 Appraisal 365
2.1 Introduction 365
2.2 Applicability 365
2.3 Assessment 374