Understanding the ENMOD Convention

The ENMOD Convention or Convention on the prohibition of military or any hostile use of environmental modification techniques is an international treaty whose objective is to prohibit such techniques for military or hostile purposes. This Convention was adopted by resolution 31/72 of 10 December 1976 by the UN General Assembly. It was signed on 18 May 1977 in Geneva and entered into force on 5 October 1978. It contains ten articles and an annex relating to the Advisory Committee of Experts. To date, the Convention has seventy-six signatory States.

The ENMOD Convention has its origins in military techniques that were used during the Vietnam War. In 1962, John Fitzgerald Kennedy, then President of the United States, ordered his army to spread the so-called “agent orange” over forests in northern Vietnam. The agent, which turned out to be a highly toxic herbicide, was intended to destroy the forest in order to leave the Vietnamese maquisards without natural shelter. In addition, the U.S. military had also experimented with cloud-like experiments to artificially prolong the monsoon season. The natural environment was then modified here in order to be used as a weapon against Vietnam. Nevertheless, it is easy to understand that the use of such techniques can quickly become uncontrollable and can be dramatic from both an environmental and human point of view as they appear to be severely toxic.

Article 1 of the ENMOD Convention provides that each state party undertake “not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means destruction, damage or injury to any other State Party” and “not to assist, encourage or induce any State, group of States or international organization to engage in activities contrary to the provisions of paragraph 1 of this article“. Three cumulative conditions emerge from this first Article: a State must use techniques, for hostile purposes, to cause destruction or damage prejudicial to another State Party. Article 4 of this Convention establishes a principle of prevention for States by stating that “Each State Party to this Convention undertakes to take any measures it considers necessary in accordance with its constitutional processes to prohibit and prevent any activity in violation of the provisions of the Convention anywhere under its jurisdiction or control“. Finally, Article 5 provides that “the States Parties to this Convention undertake to consult one another and to cooperate in solving any problems which may arise in relation to the objectives of, or in the application of the provisions of, the Convention“.

There are therefore means of verification and recourse, but these are essentially based on cooperation between States. A State party which suspects another State Party of violating the ENMOD Convention could therefore file a complaint with the United Nations Security Council: “any State Party to this Convention which has reason to believe that any other State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United Nations. Such a complaint  should include all relevant information as well as all possible evidence supporting its validity“. Nevertheless, despite this idea of a complaint to the Security Council, which seems to be a good solution, one may question its application in practice, notably because of the vetoes that certain powerful States could pose against investigations in order to protect themselves. For example, the United States or Russia are permanent members of the U.N. Security Council, and could therefore take advantage of their important positions to hide their practices.

Despite the innovative and interesting idea of such a Convention, some shortcomings can be highlighted both in its application and in its effectiveness. Firstly, the very terms of the Convention in its first article, which requires a hostile use of these modification techniques. In contrast to this Article, Article 3 provides that such techniques may be used for peaceful purposes if their purpose is to protect and improve the environment for the benefit of present and future generations. However, allowing modification for peaceful purposes could be problematic. It is not illusory to think of the abuses that such authorization could lead to. Indeed, some States might try to circumvent the prohibition on hostile use by trying to pass off these techniques as hidden hostile use. There is a de facto risk of abuse. Some States have therefore chosen to make a reservation to article 3 in order to protect their territory.

The second condition concerning the damage caused to another State Party may be criticised. The damage must indeed occur between two States that have ratified the ENMOD Convention. The scope of the ENMOD Convention is therefore largely reduced to the only States that have ratified it, and environmental protection is therefore not fully covered by it as a State that has not ratified it may use such amending techniques. Moreover, it is required that the modification is a deliberate manipulation of the state, although this deliberate manipulation must be proven. A State could attempt to defend itself by claiming that it was an accident.

As regards the purpose of modification techniques, they must have “extensive, lasting and serious effects“, however these terms are imprecise. An interpretative protocol (Additional Protocol I of Geneva in 1977) was therefore put in place in order to better define these terms, even if today, despite these protocols, they remain imprecise. According to the protocol, it should therefore be understood that an extended effect is one that extends over a large area, i.e. several hundred square kilometers. Concerning the durability of the effects, they should be understood as lasting several months.

Finally, a serious effect would be one that causes a strong disturbance, or serious damage to the populations, the natural resources of the targeted state or its economy and wealth. In spite of these clarifications, the purpose remains quite broad and can therefore be broadly interpreted by States. Finally, another problem of interpretation of the terms of the said ENMOD Convention has arisen concerning the definition of “environmental modification technique“, which is to be found in Article 2: “For the purposes of Article 1, the term ‘environmental modification techniques’ means any technique designed to modify – through the deliberate manipulation of natural processes – the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or outer space“.

By this definition, the ENMOD Convention does not apply to changes in the environment indirectly, incidentally or incidentally produced by means of conventional warfare or by weapons of mass destruction, or by weapons or means of warfare which do not have as their primary objective the modification of the environment through the deliberate manipulation of natural processes. Moreover, as these protocols are not incorporated into the Convention, it is not legally binding. They are only intended to clarify the interpretation of certain terms. For example, these protocols have provided examples of effects occurring such as a Tsunami, disruption of the ecological balance of a region, ocean currents etc. This raises the question of what is meant by environmental modification techniques. On this subject, the Italian delegation wished to broaden the scope of the text by adding after “any technique whose purpose is to modify“, the terms to influence or affect. The question had been raised as to whether blowing up a dam could be considered as an activity modifying the hydrosphere.

To conclude, modification techniques should have been defined more precisely in order to be more comprehensive and therefore more applicable in practice. For example, Georges Fischer, in his book “Annuaire Français de Droit International“, in which he comments on the said Convention, had proposed as a definition “any deliberate manipulation of natural processes with the aim of modifying or affecting them”, a definition which makes possible to encompass a greater number of situations and which is simpler to interpret.

As far as France is concerned, it is one of the few European Union states that have not signed the ENMOD Convention. France refused to sign this Convention which did not correspond at the time to its disarmament policy which was rather defensive under the Fifth Republic. Even today, it is still not a State party to the Convention. Indeed, it criticises the imprecise and therefore uncertain application of the articles.

Ultimately, in view of the ENMOD Convention’s lacunae, it must be said that the ENMOD Convention has not had the desired effect in its application by its State parties, since it does not have real binding force and remains highly imprecise in these terms.

This article was written by Cloé DANIEL, Mikhael TORRES, Yannis KHENNANE, Léa DETURCHE, M’hamed BENNOUNA and Jean-Pierre MENDY (Paris-Saclay).