By Karmanye Thadani
While I have great regard for Mr. Malviya, as a scholar of international law, I was very disappointed to read the aforementioned article of his (which can be accessed at http://www.worldlii.org/int/journals/ISILYBIHRL/2001/5.html). However, my critique of the article should certainly not be taken as a personal attack on Mr. Malviya or those running the journal it was published in, and in fact, those running it include the great academician and jurist Prof. V.S. Mani, a very humble human being given his stature and someone whom I have had the honour of knowing personally and exchanging notes with when he was the director of the university I graduated from, namely Gujarat National Law University (GNLU).
Having made this clarification, let me proceed to review the article.
The article has no clear orientation. He haphazardly discusses international environmental law in general, citing a few case laws, and then comes to the ICJ Advisory Opinion on the Use of Nuclear Weapons which is related to the law of armed conflict, without citing the emphasis on environment as stated in that advisory opinion in the following words
…the environment is not an abstraction but represents the living space, the quality of life and very health of human beings, including generations unborn.
Then, only in the context of that advisory opinion, he cites Articles 35 and 55 of Additional Protocol I to the Geneva Conventions, which are actually the most important provisions in the law of armed conflict directly dealing with the environment. He then starts discussing the formation of the UNEP and how the OECD has passed significant pro-environment resolutions (the OECD has little to do with ecological damage during armed conflicts, though!) and then comes to the general principles of international environmental law, overlooking the angle of armed conflicts. Then, he enumerates various international treaties and conventions, including those that basically have nothing to do with armed conflicts, such as the Antarctic Treaty, Outer Space Treaty, Moon Convention and United Nations Convention on the Law of the Sea!
He subsequently comes to the law of armed conflict and identifies some relevant provisions, but does not engage with the important ones. Considering that he wrote the article in 2001, he has overlooked many important provisions, like Principle 24 of the Rio Declaration and General Assembly Resolutions 47/37 and 49/50. And with the exception of his reference to environmental modification techniques in the Vietnam War, he does not cite any historical examples of how armed conflicts have adversely affected the environment, nor does he examine the evolution of a link between the law of armed conflict and environmental law.
Towards the end, he tries to philosophically outline how both branches of law are aimed at fighting unnecessary suffering. He fails to identify lacunae in the prevailing legal system and does not suggest any reforms, or cite any meaningful reforms cited by other scholars, such as defining the terms widespread, severe and long-term used in the context of environmental damage as defined in Articles 35 and 55 of Additional Protocol I and Article 8 of the ICC Rome Statute, possibly by adopting the definitions of these terms given in the ENMOD Convention, or how environmental regulations need to be made applicable even in internal armed conflicts, or how war-caused environment-related compensation claims can be addressed.
He concludes by stating the law of armed conflict and environmental law as closely related topics, an assertion not backed by any sound reasoning. I, for one, disagree and believe that while the two areas of law certainly have some common ground, they are not really all that closely related. He argues that the common rational basis of both these areas of law makes them closely related, but hopefully, all areas of law, that way, have a rational basis!
An eminent scholar like him should research properly before writing an article and not beat around the bush, and at least, not write in a haphazard fashion. The article reflects verbosity but, hardly any substance. It is sad that an eminent journal like the ISIL Yearbook on International Humanitarian and Refugee Law has published this article, perhaps just going by the name of the author.
The views expressed are entirely personal and are, in no way, reflective of those of The Indian Economist as an organization.