Draft principles setting out legal obligations for environmental and civilian protection after conflict are a significant development.
The International Law Commission has just published its third report on the protection of the environment in relation to armed conflicts (PERAC). Its Special Rapporteur is charged with the unenviable task of trying to distil state practice, and the norms from disparate bodies of law, into a set of draft principles that capture how States, their militaries and international organisations should address the environmental impact and legacy of armed conflict. This blog takes a look at the process, and considers the Special Rapporteur’s latest draft principles.
How we got here
UNEP’s 2009 report on the state of legal protection for the environment in relation to armed conflicts found that numerous bodies of law may provide protection at different points in the cycle of conflicts. It recommended that the International Law Commission (ILC) try and make sense of the relationship between these different bodies of law and in 2011, the ILC adopted the topic for study. In 2013, Dr Marie Jacobsson was appointed Special Rapporteur, beginning what would become a stocktake of relevant law and norms, based on their applicability before, during and after armed conflicts. States have been invited to submit their views throughout the process and the latest report contains those of a number of governments, including Micronesia, the Netherlands, UK and Lebanon.
While the ILC is tasked by the UN General Assembly with promoting the progressive development of international law and with its codification, in this case the Special Rapporteur elected simply to propose non-binding draft principles. These were to be synthesised from existing law and State practice and presented to the ILC and governments for further consideration. Six principles were proposed in Dr Jacobsson’s second report in 2015 – one on preventative measures prior to conflicts, and five on military conduct during conflicts. The new report contains nine draft principles, seven of which relate to post-conflict obligations, one on preventative measures to complement the one proposed in 2015’s report, and one on the rights of indigenous peoples.
What do the draft principles say?
The new principles primarily relate to the post-conflict phase and are intended to apply to both international and non-international armed conflicts. The full report contains detailed discussion on the legal basis for each principle, whereas the purpose of this blog is simply to set out some initial thoughts on each of the nine. As the principles are drawn from existing legal norms and State practice, they are inherently conservative – at least from the perspective of those advocating for progress on the topic – but of course radicalism is also relative. Perhaps most interesting is the question of whether this process captures the moment where disparate norms and practice begin being leveraged to create new law, or whether the review and its principles are viewed by States as the end of the process.
Part One – Preventive measures
Draft principle I-1 Implementation and enforcement
States should take all necessary steps to adopt effective legislative, administrative, judicial or other preventive measures to enhance the protection of the natural environment in relation to armed conflict, in conformity with international law.
This principle echoes the recent UNEA-2 resolution on conflict and the environment, in so far as it acknowledges both the necessity of enhancing protection but also the current absence of a single regime to achieve that objective. In comparison, the UNEA-2 text urged compliance with international humanitarian law (IHL) even as it called on States to implement all “…applicable international law related to the protection of the environment in situations of armed conflict”; which is understandable given the current debate over the relevance and applicability of different regimes but it perhaps also speaks to a need for a single system or framework that can minimise damage and ensure humanitarian and environmental assistance.
Draft principle I-3 Status of Forces and Status of Mission Agreements
States and international organizations are encouraged to include provisions on environmental regulations and responsibilities into their Status of Forces or Status of Mission Agreements. Such provisions may include preventive measures, impact assessments, restoration and clean-up measures.
The historical absence of environmental safeguards in agreements for overseas deployments contributed to some of the most notorious cases of military pollution since WWII – Subic Bay in the Philippines and Okinawa in Japan being just two well documented cases. The Special Rapporteur notes that the situation has improved in recent years, with environmental standards becoming commonplace in such agreements. However, and as NATO’s deployment in Afghanistan highlighted, many such basing arrangements feature significant imbalances, not only in terms of bilateral political relationships, but also in terms of the capacity of the host nation to monitor and respond to environmental problems during the operation of facilities or following their closure and return.
Draft principle I-4 Peace operations
States and organizations involved in peace operations shall consider the impacts of those operations on the environment and take all necessary measures to prevent, mitigate, and remediate the negative environmental consequences thereof.
As of this April, 121,780 military and civilian personnel were deployed across 16 different UN peacekeeping operations. Efforts to minimise the environmental impact and improve the environmental management of such operations have been ongoing for a number of years, spurred on by high profile crises such as that in Haiti, where Nepali peacekeepers inadvertently introduced cholera. Beyond minimising the environmental impact of deployments – a joint UN policy is now in place, UNEP has also advocated for UN-mandated operations to support peacebuilding through natural resource management. In this respect this is perhaps a principle that could have been more action orientated so as to reference the importance of environmental cooperation for peacebuilding.
Part Three – Draft principles applicable after an armed conflict
Draft principle III-1 Peace agreements
Parties to a conflict are encouraged to settle matters relating to the restoration and protection of the environment damaged by the armed conflict in their peace agreements.
The report observes that many peace agreements in recent years have included an environmental element, be it on identifying and mitigating damage or encouraging the sustainable and equitable management of natural resources. However given the value of the environment as a tool for peacebuilding, and the risks posed to stability by failing to include it, should this principle also have been phrased more strongly?
Draft principle III-2 Post-conflict environmental assessments and reviews
1. States and former parties to an armed conflict are encouraged to cooperate between themselves and with relevant international organizations in order to carry out post-conflict environmental assessments and recovery measures.
2. Reviews upon conclusion of peace operations should identify, analyse and evaluate any environmentally detrimental effects of those operations on the environment, in an effort to mitigate or remedy those detrimental effects in future operations.
The call for States and parties to armed conflicts to cooperate to ensure that post-conflict environmental assessments take place is welcome. However from a practical perspective, assessments remain contingent on access being granted by States, and the interest and largess of the donor community. This means that some conflicts are never assessed, or that many years may pass before they are, with often serious consequences for the civilian population and their environment. Similarly, it is one thing to be assessed but what of the recovery measures? How should obligations be balanced between the actor that caused the harm and the affected State, which after all is the duty bearer responsible for protecting the rights of its citizens?
It is perhaps notable that for land mines and cluster munitions, affected States party to the relevant treaties accept obligations for their assessment and removal, and for victim assistance, in exchange for support from the international community. Given the serious consequences of wartime environmental damage for the civilian population and ecosystems, should a less ad hoc system of assessment and recovery be considered, one that is less dependent on ephemeral funding and which tackles this question of duties and obligations?
The need to review the detrimental environmental effects of peacekeeping operations is indeed important if they are to be minimised in future. But this should also apply to military operations, however no permanent forum currently exists where the environmental impact of operations can be fully and transparently scrutinised by States, international organisations and civil society.
Draft principle III-3 Remnants of war
1. Without delay after the cessation of active hostilities, all minefields, mined areas, mines, booby-traps, explosive ordnance and other devices shall be cleared, removed, destroyed or maintained in accordance with obligations under international law.
2. At all times necessary, the parties shall endeavour to reach agreement, both among themselves and, where appropriate, with other States and with international organizations, on the provision of technical and material assistance, including, in appropriate circumstances, the undertaking of joint operations necessary to fulfil such responsibilities.
As the principles reflect current practice and norms, it is unsurprising that they should reaffirm the norms relating to mines and ERW. However, while the need to also address the toxic remnants of war was raised by some States during the Sixth Committee debates last year, perhaps there is currently insufficient law or practice for the ILC to draw upon. This is partly historical, resulting from a separation of explosive remnants of war from earlier interpretations of what constitute the “material remnants of war”. While the use, presence and clearance of ERW has a range of specific effects on the environment, a more coherently environmental definition of the remnants of war would by necessity need to include chemical and radiological pollution, waste, debris and abandoned materiel.
Draft principle III-4 Remnants of war at sea
1. States and international organizations shall cooperate to ensure that remnants of war do not constitute a danger to the environment, public health or the safety of seafarers.
2. To this end States and organizations shall endeavour to survey maritime areas and make the information freely available.
The inclusion of two principles on marine remnants of war is extremely welcome. This is a global problem with concomitant implications for human and environmental health. Nevertheless a number of factors have conspired to limit the responses of States on the topic, these include the scale of the problem, the cost and logistical problems associated with the assessment and management of sites, and unclear liability for historical dumping.
The Special Rapporteur argues that, as a result, States have often chosen to address the threat from marine remnants – such as sea-dumped chemical or conventional munitions and shipwrecks leaking oil – as a matter of environmental cooperation, rather than environmental liability or responsibility. This appears to be an important observation for other forms of environmental harm, given that past efforts to address the issue through strict liability have often been ineffective or at times counterproductive – certainly as far as efforts to swiftly minimise environmental and civilian harm are concerned.
Draft principle III-5 Access to and sharing of information
In order to enhance the protection of the environment in relation to armed conflicts, States and international organizations shall grant access to information and share information in accordance with their obligations under international law.
The exchange of environmental information is a key element of numerous environmental treaties, for example those on chemicals and waste. Meanwhile the right of public access to information was the driving force behind the Aarhus Convention, helping to affirm the norm of participatory environmental human rights. State practice on the exchange of information on the use of ERW also references this principle of cooperation – although targeting data is often incomplete and usually hard won. Ascertaining the level of environmental damage caused by a conflict requires access to data on the pre-existing environmental conditions. Similarly, the IHL principle of precaution requires some understanding of the likely environmental impact of a given military action.
All these interlinked elements underscore the fact that environmental information is a vital currency for not only minimising damage but also for understanding and mitigating harm. In this regard, the inclusion of a principle specifically on information exchange is extremely welcome.
Part Four – [Additional principles]
Draft principle IV-1 Rights of indigenous peoples
1. The traditional knowledge and practices of indigenous peoples in relation to their lands and natural environment shall be respected at all times.
2. States have an obligation to cooperate and consult with indigenous peoples, and to seek their free, prior and informed consent in connection with usage of their lands and territories that would have a major impact on the lands.
The inclusion of specific principles on the rights of indigenous peoples reflects norms established by a number of the environmental and human rights instruments. The two draft principles focus on the specific connection that indigenous communities often have with their environment and on their participatory rights. This is somewhat different to the approach taken by the UNEA-2 resolution, which recognised:
“…the need to mitigate and minimise the specific negative effects of environmental degradation, as well as to ensure the protection of the environment, in situations of armed conflicts and post-conflict situations on people in vulnerable situations…”
of which indigenous peoples were one example listed. The proposed principle is perhaps more closely aligned with the UN Declaration on the Rights of Indigenous Peoples, Article 30 of which sought to support the rights of communities to control the use of their territories for military training activities.
What happens next?
As with previous years, the report and principles will be debated by States during a session of the UN General Assembly’s Sixth Committee this October. The debates in 2014 and 2015 provided a first taste of State positions on conflict and the environment. These have now been augmented by the views expressed during the negotiating process for the recent UNEA-2 resolution on the Protection of the environment in conflict affected areas. Indeed the ILC process and the resolutions on conflict issues at UNEA-2 have helped stimulate and sustain fresh political interest in the topic among States.
Before reaching the Sixth Committee, the new draft principles will be debated by the ILC later this month: a summary of 2015’s debate on the first set of principles is available here (paras 137-170). In 2015 the ILC remained divided on what the final outcome of its project should be, debating the various merits of draft principles versus draft articles, and flexibility versus normative prescriptions. As the ILC is sticking with non-binding principles, the onus is very much on States to confirm whether or not they wish to explore future options for the progressive development of the law, and we may get a sense of whether they do or not at this November’s General Assembly debate.
One thing that already seems apparent is that, while cataloguing and documenting the law is a useful exercise, it will do little to increase the protection of the environment and civilians on its own. Instead, progressive States will need to take advantage of the opportunities created by the new discourse on the PERAC topic to ensure meaningful progress towards a system that will allow these norms and principles to be applied where they are needed – on the ground.
Doug Weir manages the Toxic Remnants of War Project.