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ENMOD Convention does not prohibit damage to the environment, but reflects the idea that theenvironment itself should not be used as an instrument of war. 215Weapons or military operations may incidentally have widespread, long-lasting, or severeeffects on the environment. Such weapons and military operations are not prohibited by theENMOD Convention because the harm to the environment is incidental and not intended to beused as a means of destruction, damage, or injury to another Party to the ENMOD Convention.For example, nuclear weapons are not prohibited by the ENMOD Convention because theireffects on the environment are a by-product of their use rather than intended as a means ofinjuring the enemy. 2166.10.3.1 AP I Provisions on Environmental Protection. In contrast to theENMOD Convention’s prohibition against using certain environmental modification techniquesas a means of destruction, damage, or injury, two provisions of AP I specifically address theprotection of the environment. Article 35(3) of AP I provides that “[i]t is prohibited to employmethods or means of warfare which are intended, or may be expected, to cause widespread, longtermand severe damage to the natural environment.” Article 55 of AP I provides:Protection of the natural environment: (1) Care shall be taken in warfare toprotect the natural environment against widespread, long-term and severedamage. This protection includes a prohibition of the use of methods or means ofwarfare which are intended or may be expected to cause such damage to thenatural environment and thereby to prejudice the health or survival of thepopulation. (2) Attacks against the natural environment by way of reprisals areprohibited.The United States has not accepted these provisions 217 and has repeatedly expressed theview that these provisions are “overly broad and ambiguous and ‘not a part of customarylaw.’” 218 Articles 35(3) and 55 of AP I “fail to acknowledge that use of such weapons is215 Michael Moodie, United States Arms Control and Disarmament Agency, Statement before the Second ReviewConference of the Convention on the Prohibition of Military or Any Other Hostile Use of EnvironmentalModification Techniques (Sept. 15, 1992) (“The Environmental Modification Convention is not an EnvironmentalProtection Treaty; it is not a treaty to prohibit damage to the environment resulting from armed conflict. Rather, theEnvironmental Modification Convention fills a special, but important niche reflecting the international community’sconsensus that the environment itself should not be used as an instrument of war.”).216 Written Statement of the Government of the United States of America, 29, Jun. 20, 1995, I.C.J., Request by theUnited Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of NuclearWeapons (“Although one might imagine a hypothetical use of nuclear weapons to create an environmentalmodification technique (for example, to cause an earthquake or tidal wave), the Convention does not prohibit otheruses of nuclear weapons (or any other weapon), even if they cause serious damage to the environment. Only the‘deliberate manipulation’ of environmental forces to cause destruction is covered.”).217 See, e.g., United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861UNTS 482, 483 (“The United States considers that the fourth paragraph of the preamble to the Convention, whichrefers to the substance of provisions of article 35 (3) and article 55 (1) of additional Protocol I to the GenevaConventions for the Protection of War Victims of August 12, 1949, applies only to States which have accepted thoseprovisions.”).218 U.S. RESPONSE TO ICRC CIHL STUDY 521 (“France and the United States repeatedly have declared that Articles35(3) and 55 of AP I, from which the Study derives the first sentence of rule 45, do not reflect customary354