Introduction

War can be destructive not only to lives and property, but also to the more fundamental structure of our world, the environment. In attempting to address the consequences of war for the environment, one may try to prevent war from starting or to prevent an ongoing war from extending to particularly sensitive environments. This chapter assumes that the prevention effort has failed at least in part and that one therefore must also consider (1) the mitigation of the consequences that flow from the harm to the environment, (2) the possible restoration of the environment harmed, and (3) legal and financial responsibility for such mitigation and restoration as a possible deterrent. In all three of these areas, international adjudication can play a role.

In the twentieth century, there have been numerous international adjudicatory institutions created to address international wrongs. These include ad hoc arbitrations, claims commissions, and permanent tribunals. Sometimes these mechanisms were employed to resolve a specific question, such as a boundary dispute. Often these mechanisms followed particularly earth-shattering events, such as revolution and war. This essay considers the place of the environment in international institutions created to address the latter situation.

In considering this topic, I address two fundamental questions that have substantial implications for how an international mechanism should be structured so as to address an environmental claim. First, precisely what is an environmental claim? What is the relationship between the claimant and the environment it claims to represent? Second, from where are the monies for mitigation and restoration to come? These two questions provide a basis for assessing international mechanisms, and, in that light, the present design of mechanisms appears inadequate.