Guidelines that could help reduce environmental harm from corporate activities in areas affected by armed conflicts are being developed, we examined how states and the private sector should implement them.
A new report from CEOBS examines what steps states and private companies should take to reduce corporate environmental harm in areas affected by armed conflicts. To do so it explores the principles in three normative frameworks – the OECD Guidelines on Multinational Enterprises, the UN Guiding Principles on Business and Human Rights and the International Law Commission’s draft principles on the Protection of the environment in relation to armed conflicts. In this blog, its authors Taygeti Michalakea and Stavros Pantazopoulos introduce the report.
Corporations, natural resources and armed conflict
The intersection of conflict and the environment is a relatively recent field of study and practice, even though environmental harm during conflicts has been present since ancient times. Beyond intentional environmental harm as a tool of war, conflicts can intersect with the environment in other ways. This includes conflict over natural resources, as is the case in Colombia where the conflict has been historically attributed to the unequal distribution of land;1 conflict over declining resources; conflict that causes environmental degradation; and conflict over natural resource extraction processes.2
Corporate involvement has been documented in these environmentally harmful activities. For example, illegal natural resource exploitation has funded conflicts, such as in the case of timber in Cambodia, and Liberia where during the civil war, logging concessions were granted to timber companies by the National Patriotic Front of Liberia. The UN Panel of Experts on the Illegal Exploitation of Natural Resources in the Democratic Republic of Congo listed several companies that were found to have acted in contravention to the Organisation for Economic Co-operation and Development (OECD) Guidelines on Multinational Enterprises,3 and whose illegal mining activities funded and perpetuated the conflict. One of the most well-known cases against a corporation for environmental harm in the context of an armed conflict was brought by Vietnamese victims before US courts against chemical companies for personal damage caused by the use of Agent Orange during the Vietnam War, although the case was ultimately unsuccessful.4
How corporate activities facilitate environmental harm and insecurity
The effect of corporate involvement in environmentally harmful activities during conflict is twofold: on one hand it causes damage to the environment, and on the other side it enables and finances the perpetuation of the conflict, further feeding into the vicious cycle of environmental damage. The case of Colombia is not only recent but also illustrative of this. Armed groups have secured funding by forcibly displacing the population and land grabbing, so that the land is clear for businesses to extract oil, for monocropping or for cattle ranches.5 Similarly, large scale illegal gold extraction has had serious environmental impacts and has funded various rebel groups.6
Although environmental damage is present in most conflicts around the globe, the measures taken in the aftermath of conflicts to enable the transition to peace and democracy – transitional justice – rarely address environmental considerations. This might be due to a lack of understanding of how environmental harm can spill over, causing adverse impacts to both security and the rule of law, and ultimately hampering peace processes.7 In terms of security, this is the case when inadequate environmental protection leads to community relocation and subsequent insecurity, as is the case in various areas of Sudan and South Sudan.
Scope of the report
Against this backdrop, our report Enhancing corporate environmental responsibility in conflict-affected settings examines the largely unexplored link between corporate environmental harm during conflict, security and the rule of law.
The report further aims to reconceptualise environmental protection during and after conflicts as a key component for the field of Security and Rule of Law (SRoL). According to the UN, the notion of environmental security acts as a ‘conceptual envelope’ including a variety of issues involving the role that the environment and natural resources can play across the peace and security continuum, including environmental causes and drivers of conflict, environmental impacts of conflict, environmental recovery and post-conflict peacebuilding’.8 All things considered, the concept of environmental security should be defined in an inclusive fashion in order to encompass ‘both the environment’s ability to impact on human security, and humans’ ability to impact on the stability and viability of the biosphere’.9
On the other hand, environmental rule of law ‘describes when laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet.’10 The International Union for the Conservation of Nature World Declaration on the Environmental Rule of Law further explains that the concept of environmental rule of law adds a ‘framework of procedural and substantive rights and obligations that incorporate the principles of ecologically sustainable development.11
In this report, the concept of environmental rule of law is understood as an expansion of the traditional rule of law principle, which denotes that the state and private institutions are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. Environmental rule of law provides an extra layer whereby the laws that are promulgated, enforced and applied should be in addition consistent to environmental needs and protection.12 Environmental rule of law connects rights and obligations from the one hand, to governance on the other hand, albeit under the lens of environmental sustainability.
In this context, the report explores how the standards on corporate conduct prescribed in three soft law documents, namely the UN International Law Commission’s (ILC) draft principles on the Protection of the environment in relation to armed conflicts, the OECD Guidelines on Multinational Enterprises, and the UN Guiding Principles on Business and Human Rights, overlap and differ on issues of due diligence, modes of corporate liability, remedies for environmental harm and access to justice in conflict-affected areas, including the institution of grievance mechanisms to promote the environmental rule of law.
On the basis of the analysis, various recommendations (in three languages) have been formulated. Starting with states, it is recommended, among other things, that they align their regulatory and enforcement domain to the standards set by those three main instruments. In particular, it is urgent that they adopt and enforce specific regulations on the licensing, establishment, operation, security, and supervision of corporate activities that may have harmful environmental effects, including parent and subsidiary companies. Lastly, they should also adopt mandatory due diligence legislation, which should cover parents, subsidiaries and entities in the supply chain.
Regarding corporate entities, it is recommended that they engage in assessing and addressing foreseeable environmental, health, and safety-related impacts associated with the processes, goods and services over their full life cycle; review and adopt internal policies that are consistent to the UNGPs, the OECD Guidelines and the ILC Principles; and implement due diligence strategies for their direct, indirect, actual and potential environmental impacts, including regarding the activities of their subsidiaries and other entities in their supply chain.
Lastly, based on the findings of our report and the policy recommendations, we have developed a questionnaire with the view of encouraging the environmentally sound behaviour of states and corporations in fragile and conflict-affected settings. The questionnaire contains two sections, one addressed to states and the other to corporations, and is also accessible in three languages.
The report Enhancing corporate environmental responsibility in conflict-affected settings, its recommendations and questionnaire are available here.
Dr Taygeti Michalakea is a Re:Constitution Fellow at the European University Institute. She is on Twitter @TaygetiMic; Dr Stavros Pantazopoulos is CEOBS’ Legal Analyst. Research for this project was funded by the Knowledge Platform Security & Rule of Law’s Knowledge Management Fund.
- Sanchez Leon NC (2017) Tierra en transición. justicia transicional, restitución de tierras y política agraria en Colombia. Bogotá DC: Dejusticia.
- Brisman A, South N and White R (2015) Toward a criminology of environment-conflict relationships. In Brisman A, South N and White R (eds) Environmental Crime and Social Conflict: Contemporary and Emerging Issues: 1–38. Surrey, UK: Ashgate; Brisman A and South N (2018) Environment, conflict, and profit: Harmful resource exploitation and questionable revenue generation. In Spapens T, White R, van Uhm D and Huisman W (eds) Green Crimes and Dirty Money: 19–41. London: Routledge.
- UN Security Council, Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, Annexes I-III, UN DOC S/2002/1146 (Oct 15, 2002).
- Vietnam Association for Victims of Agent Orange v. Dow Chemical Co., US Court of Appeals for the Second District, Judgment of 22 February 2008.
- Sanchez Leon NC and Marin Lopez D (2017) Corporate accountability in transitional justice in Colombia. In van de Sandt J and Moore M (eds) Peace, Everyone’s Business! Corporate Accountability in Transitional Justice: Lessons for Colombia: 120-140. Utrecht: PAX.
- OECD, Due Diligence in Colombia’s gold supply chain Gold Mining in Chocó, OECD 2017, available at https://mneguidelines.oecd.org/Choco-Colombia-Gold-Baseline-EN.pdf.
- For a comprehensive account, see CEOBS, ‘How does war damage the environment?’, 4 June 2020, available at https://ceobs.org/how-does-war-damage-the-environment.
- Ratner, B.D. 2018. Environmental security: dimensions and priorities. Scientific and Technical Advisory Panel to the Global Environment Facility. Washington, DC, 5.
- Hulme, ‘Environmental security’ (n 4) 25.
- UNEP, Environmental Rule of Law: First Global Report, January 2019, 1.
- IUCN, World Declaration on the Environmental Rule of Law (n 12) 2.
- UNEP, Environmental Rule of Law (n 13) 8.