The International Law Commission has proposed new draft legal principles that address the obligations to protect the environment in situations of occupation.
The latest report from the International Law Commission’s (ILC) study into the progressive development of the legal framework protecting the environment in relation to armed conflicts has been published. It is the fourth report from the Commission, and the first from its new Special Rapporteur Dr Marja Lehto of Finland, who was appointed last year after her predecessor Dr Marie Jacobsson reached the end of her term. While previous reports adopted a temporal approach, broadly addressing environmental protection before, during and after conflicts, the new report delves into the obligations on states to protect the environment during situations of occupation.
The ILC’s PERAC study
The ILC’s work on the ‘Protection of the environment in relation to armed conflicts’ (PERAC) can be traced back to 2009 and the publication of a major review by UNEP that examined the state of legal protection for the environment from the impacts of conflict. It found fragmentation, uncertainties and opportunities, and recommended that work be undertaken to clarify the legal framework. The ILC adopted the programme of work in 2013, publishing its first substantive work in 2014. The reports of its Special Rapporteurs analyse the law, state practice and the practice of international organisations, which is then used to inform draft principles. The draft principles are then considered and reviewed by the ILC’s members, and later by states during sessions of the UN General Assembly’s Sixth Committee.
While the ILC can also propose draft articles that can form the basis of new legal instruments, thus far the majority of ILC members and states have indicated that draft principles would be preferable in the case of PERAC, rather than a new convention. Key themes throughout the PERAC study have been the temporal question of what should apply and when during the cycle of conflicts, and how international humanitarian law, human rights law and environmental law relate to one another.
Protection of the environment in situations of occupation
After revisiting the 2016 General Assembly debate on the 3rd report of the ILC – our coverage is available here – the latest report considers whether environmental norms are needed in situations of occupation, and their legal basis. While cases of formal occupation, where one state occupies the territory of another and becomes the de facto administrator of that territory, are comparatively rare, there are a number of recent examples where damage to the environment has been caused during the conflict leading to the occupation and has remained unaddressed, for example in Iraq post 2003, or where it is caused or exacerbated by the nature of the occupation itself, as is the case in the Occupied Palestinian Territories. One perennial problem is the collapse of environmental governance during conflicts, and which may extend into the period of occupation, while another is the unsustainable extraction or unequitable use of natural resources in the occupied territory.
While there is a general understanding of what constitutes a situation of occupation, and its main characteristics – most notably that of the occupier, or occupiers enjoying “effective control” over a territory, and a dedicated body of international law to address it, there remains considerable debate over its application and definitions. This is largely due to the original laws having been developed in the context of the early 20th Century, and the subsequent variation in the characteristics of particular cases since. Nevertheless, the law of occupation applies irrespective of whether the occupying state or states have invoked them.
Put simply, the occupying power has obligations governing the treatment of the occupied territory’s inhabitants, their property and their resources. While the specific interpretation of these obligations varies, Dr Lehto argues that each of these has an environmental dimension. The aim of the draft principles is to seek to articulate and clarify these relationships. For example, the well-established principles protecting private property also extend a measure of protection to natural resources, and also address their unsustainable exploitation, which in turn provides a measure of environmental protection. Similarly the obligation on the occupier to restore and maintain public safety, ensure the welfare of the population and protect their means of subsistence, has a clear environmental dimension, whether it is the management of conflict pollution, restoring environmental governance, maintaining essential services, or protecting water or agricultural resources.
In considering the relationships between the law of occupation and human rights and environmental law, Dr Lehto argues that they too should help inform principles of environmental protection. The wide range of human rights instruments, their normative status and their concurrent applicability are sufficient to inform obligations to protect human health from environmental risks, and to limit environmentally harmful practices; obligations that develop and grow in line with the length of the occupation. Given that environmental damage can be cumulative, with many apparently modest harms ultimately amounting to severe damage over time, the question of how obligations should increase in line with the duration of an occupation is an important one. From environmental law, Dr Lehto selects the principles of due diligence – the no harm principle – and the sustainable use of natural resources, which is informed by the principle of sustainable development.
On the question of due diligence, Dr Lehto argues that the principle that states should avoid causing environmental harm to areas beyond their jurisdiction and control is analogous to the obligation to avoid harm in situations of occupation. On environmental sustainability, Dr Lehto considers how contemporary interpretations of the principle of sustainable development relate to the usufructuary rights found within the law of occupation – that resources may be used, but in a manner that prevents their destruction or depletion. In so doing arguing that the occupier has an obligation to ensure that resources are utilised in a manner that ensures their long-term availability, or does not exceed their capacity for regeneration.
The proposed draft principles
The report proposes three draft principles on the protection of the environment in situations of occupation, which build on those already published and either adopted or provisionally adopted by the ILC.
Draft principle 19
1. Environmental considerations shall be taken into account by the occupying State in the administration of the occupied territory, including in any adjacent maritime areas over which the territorial State is entitled to exercise sovereign rights.
2. An occupying State shall, unless absolutely prevented, respect the legislation of the occupied territory pertaining to the protection of the environment.
Draft principle 20
An occupying State shall administer natural resources in an occupied territory in a way that ensures their sustainable use and minimizes environmental harm.
Draft principle 21
An occupying State shall use all the means at its disposal to ensure that activities in the occupied territory do not cause significant damage to the environment of another State or to areas beyond national jurisdiction.
On first reading, draft principle 19 seems somewhat vague and lacking in force. Given the breadth of potential environmental harms, it is understandable that a catch-all term like “environmental considerations” is used. But could it be worded with more positive force? Of equal concern is that any such considerations should merely be “taken into account”. While reading it together with its following part, that the legislation of the occupied state should be respected, provides more force, it perhaps misses an opportunity to clearly define the occupier’s positive obligations for the protection of the environment and human health.
For example it could for instance clarify an obligation to ensure that the fundamental and procedural environmental rights of the occupied population are protected, and that access to environmental justice is guaranteed. Or it could help to ensure that the occupier’s obligations under relevant multilateral environmental agreements are also applicable in the occupied territory. One such example was studied by Al-Haq in the context of the Occupied Palestinian Territories, and considered Israel’s obligations, as a party to the Basel Convention on the transboundary shipment of wastes, towards Palestine, which is not a party but should be afforded protections from dumping under the treaty.
Looking at the example of Iraq post-2003, serious risks to public health and the environment were caused by the widespread looting of hazardous industrial facilities. This was only possible because of the US-led coalition’s decision to intervene with a minimal force, a decision that did not provide for sufficient troop numbers to protect either hazardous facilities or cultural sites. Clearly, while some forms of harm can be difficult to predict, issues such as securing sites should be part of pre-war planning.
A further concern is that, while the legislation of the occupied territory can be respected, without ensuring that the occupied territory has the capacity and resources to implement the protections stemming from its legislation, this principle may lack meaning in practice. Rebuilding environmental governance, and ensuring that relevant agencies have the resources, freedom of movement and legal status to carry out their functions is critical for environmental protection, particularly during prolonged occupations.
The question of what constitutes “sustainable use” in draft principle 20 will need to be carefully defined in the commentary, as will the minimisation of environmental harm, and what level of harm is and isn’t acceptable. Finally, draft principle 21 would benefit from the addition of a reference to avoiding significant harm to the territory of the state or area under occupation, as well as to other states, or to areas beyond national jurisdiction. This seems particularly important given the current weakness of draft principle 19. Returning again to Al-Haq and others who have studied the environmental dimensions of Israel’s occupation, there are myriad cases where Israeli policies have caused damage, whether to agricultural areas or water resources, or due to waste dumping or through the relocation of polluting industries from Israeli to Palestinian areas.
Relationship to the ILC’s previous draft principles
As noted above, thus far the work on PERAC has followed a broadly temporal model, with draft principles generally, but not exclusively, addressing conduct before, during and after armed conflict. In the latest report, Dr Lehto notes that occupations blur these boundaries. Conflict may not cease at the beginning of an occupation, or necessarily begin, while a protracted occupation may come to increasing resemble what could be viewed as a post-conflict phase, or ultimately conditions akin to peacetime.
With this in mind Dr Lehto suggests that the principles applicable before conflict – such as on the designation of protected areas, and during – such as on the general protection afforded by IHL, would be of relevance to situations of occupation. However Dr Lehto suggests that some of the proposed principles from the ILC’s third report, which mainly addressed the post-conflict phase, be considered on a case by case basis. These include principles on the protection of the environment of indigenous peoples, terrestrial and marine remnants of war and sharing and granting access to information. No new wording is deemed necessary but their applicability should be discussed in the commentaries.
The last of the principles highlighted as relevant is that on post-armed conflict environmental assessments and remedial measures. This principle, which is not worded as a legal obligation, encourages cooperation among relevant actors, including international organisations, in conducting assessments. It has a particular salience in the context of the Occupied Palestinian Territories where a resolution calling for an assessment of environmental conditions in the Gaza Strip came close to derailing the second session of the UN Environment Assembly in 2016.
Reflecting the law or working towards its progressive development?
The task of the ILC’s Special Rapporteurs on PERAC is an unenviable one. While the early opposition to the project within the ILC and among states has faded somewhat as work has progressed, some ILC members remain conservative in outlook, and some states have voiced opposition to particular principles based on their national interests, for example on the rights of indigenous peoples. Dr Lehto has had to work with what the law currently says, how it has been interpreted by the courts and how it has been reflected in the practice of states, while at the same time edging towards the clarification and progressive development of the law. This must simultaneously be balanced against the likely views of the ILC’s members, and the potential responses from states.
With the principles relating to the before, during and after of armed conflict largely dealt with, the PERAC study is now moving into areas with the potential to be hotly contested by states, and it seems inevitable that protection of the environment in situations of occupation will elicit strong views from certain states when the study reaches the UN General Assembly in the autumn. In this respect it is understandable that the proposed draft principles are relatively conservative. However it is also the case that this study, and its outcome, is hugely significant for the legal framework protecting people and the environment from the consequences of conflict. As such we would urge the ILC’s members and states to engage with this process in the spirit of progressive development, and not the maintenance of the status quo, and to keep their focus on the ultimate beneficiaries of the process, and not on the views of its detractors.
Doug Weir is the Research and Policy Director at The Conflict and Environment Observatory