Momentum continues to grow in UN study on laws protecting environment in conflict

Background

The International Law Commission (ILC) is mandated by the UN with the progressive development and codification of international law, and added the topic ‘Protection of the environment in relation to armed conflicts’ (PERAC) to its programme of work in 2013. The move reflected a consensus view among academics, experts and international organisations that the existing framework was inadequate to deter or address environmental harm from conflicts and military activities. It was also clear that, while a range of different bodies of law afford some protection at different stages of conflicts, precisely how they interact required closer examination. Since 2013, the ILC’s work has also reflected, and been informed by, a number of policy and political initiatives that have emerged on conflict and the environment.

The annual debates on the work of the ILC in the Sixth Committee provide states with an opportunity to comment on the priorities for the work and to provide substantive feedback on its outcomes. Thus far these have taken the form of draft principles, some, such as those applicable during conflict have been based heavily on treaty-based and customary international humanitarian law (IHL), others on preventative and post-conflict measures, have been informed by the practice of states and international organisations, as well as broader environmental norms. You can find our coverage of earlier annual debates here: 2014, 2015 and 2016.

This year has marked a turning point in the PERAC study. The ILC’s Special Rapporteur on PERAC, Dr Marie Jacobsson of Sweden, came to the end of her term with the ILC. Dr Jacobsson had proved energetic, and across three reports had prepared 18 draft principles for review by the ILC and states. However, as it is not unknown for topics to become orphaned at the ILC following the departure of a Special Rapporteur, there were concerns for the future of the PERAC topic ahead of the ILC’s meeting last July. These ultimately proved unfounded. The ILC established a working group on the topic, which moved swiftly to appoint a replacement: Dr Marja Lehto of Finland. That this process took place so quickly – it could have been delayed until 2018 – reflects the support for PERAC among ILC members, the interest among states – as demonstrated in 2016’s debate, as well as the increasing international interest in the topic – for example the 2016 UN Environment Assembly resolution on the ‘Protection of the environment in areas affected by armed conflicts’.

This enthusiasm will doubtless prove valuable for Dr Lehto as she begins work on the next suite of PERAC topics. Their selection has been guided in part by the views of states, and of ILC members and a number of them are of a formidable legal and political complexity. Nevertheless, they are also of critical importance for the PERAC study, reflecting as they do the realities of contemporary armed conflicts. They include: issues of complementarity with other relevant branches of international law; the protection of the environment in situations of occupation; issues of responsibility and liability for harm; the responsibility of non-state actors; and the overall application of the draft principles to non-international armed conflicts.

The debate

As this year’s progress report from the ILC dealt primarily with procedural rather than substantive matters, there were fewer interventions from states than last year. In total there were 19 national statements from Austria, Belarus, the Czech Republic, El Salvador, Lebanon, Malaysia, the Netherlands, Peru, Portugal, Romania, Singapore, Slovenia, Spain, Thailand, Turkey, Ukraine, the UK, US and Viet Nam. In addition, Denmark delivered a Nordic statement on behalf of FI, NO and SE, while CARICOM’s 15 members made a welcome first intervention on PERAC.

Of these, Belarus, Peru, Singapore and Spain spoke only to congratulate Dr Jacobsson for her work on PERAC and to welcome the appointment of Dr Lehto as Special Rapporteur. Spainalso applauded the ILC’s decision to continue working on PERAC, in spite of having previously raised serious reservations about the topic. Turkey, speaking for the first time, had no comments on the work to date – beyond the need to ensure coherence between past and future work on PERAC – but will respond more fully at a later date.

General remarks

The overwhelming majority of states welcomed the continuation of the PERAC study and stressed its importance. The Nordic countries welcomed the substantial body of work already undertaken, and argued that it should finalised and built on without delay. El Salvador also expressed its support for its continuation, as did Lebanon, who noted that the draft principles published thus far should continue to be studied, and that new avenues of research also be considered. Malaysia thought PERAC important and noted the ongoing interest in the topic among states, UN Environment and the ICRC. Peru said it was committed to supporting the work of the ILC, while Portugal felt that the study would have a positive impact on the protection of human beings and the environment by contributing to limiting the effects of armed conflicts.

Romania argued that PERAC is growing increasingly important, due to increased environmental awareness, the progress of technology and the diverse forms of contemporary armed conflicts. Slovenia also expressed its support for the continuation of the topic, while Thailand encouraged the ILC to continue refining its draft principles and elaborating their commentaries in an expeditious manner. Similarly CARICOM argued that momentum on the topic be maintained. Ukraine highlighted the importance of the topic for their country and its relevance and applicability to its ongoing conflict. Meanwhile Viet Nam also alluded to its national experience in offering its support for the study.

However a minority of states were more circumspect. Austria, which acknowledged the importance – and complexity – of the topic, suggested that the main issue is not the establishment of new rules and standards but is instead compliance with the existing rules; citing the recent work by Switzerland to promote a new IHL compliance mechanism. The Czech Republic warned of the risks posed by the selective or incomplete compilation of new rules, while the Netherlands cautioned against broadening the topic too much. The UK again said that it remained unconvinced of the need for new treaty provisions in this area and, although the US recognised the global importance of the topic and praised Dr Jacobsson’s handling of rules that were both “complex and controversial in character”, it struck a reluctant tone on a number of the draft principles. In particular it took issue with draft principle 8 on the environmental footprint of peace operations, and draft principle 16, which it suggested expanded the obligations under the Convention on Certain Conventional Weapons to mark and clear, remove, or destroy explosive remnants of war to also include “toxic or hazardous” remnants of war.

Anthropocentrism versus ecocentrism

Throughout the PERAC process, the extent to which the outcome should balance the humanitarian consequences of wartime environmental damage with damage to the “natural environment” has been the subject of debate within the ILC. The debate not only has implications for the ultimate outcome of the process but also for how environmental and human rights law is used to inform the study. In this respect it was noteworthy that 10 statements highlighted the humanitarian consequences of damage. For example, the Nordics argued that:

“Widespread destruction and degradation of the environment imply long-term and severe consequences both for nature itself and for civilian populations who depend on natural resources for their survival.” 

While Ukraine took a similar position, adding that:

“The environmental impact of conflicts, from a humanitarian point of view, remains significant and continues to have direct consequences on human wellbeing and [the] enjoyment of fundamental human rights.”

Complementarity

Reflecting this ongoing debate, and in light of the proposal that Dr Lehto specifically study complementarity between different branches of law in the next phase of the project, a number of states expressed views on the matter. Unsurprisingly, opinions broadly reflected the support for the topic as a whole, as the applicability of the different legal frameworks under debate is fundamental to PERAC.

Austria hoped that Dr Lehto’s work would help clarify the relationship between environmental law and IHL. Malaysia argued that PERAC should not be viewed exclusively through the lens of IHL, and encouraged Dr Lehto to clarify the applicability of international criminal and environmental law, human rights and treaty law. Romania suggested that any analysis of the question of complementarity should also include the law of the sea if it is to be comprehensive. Thailand felt that the question of how environmental damage – and its impact on human livelihoods and sustainable development – could be prevented or mitigated could be resolved through analysis of environmental law and IHL. CARICOM also endorsed the consideration of those two bodies of law, alongside international criminal and human rights law.

However the Netherlands suggested that the scope of the project be limited to clarifying the existing rules and principles of international environmental law to armed conflicts. The UK and US both argued that IHL is the lex specialis in this field. The US expanded on this point, saying it was:

“…concerned by the interest and attention paid to addressing the concurrent application of bodies of law other than IHL during armed conflict.”

Adding that the extent to which other bodies of law might apply during conflicts must be considered on a case by case basis. The US has long challenged the customary status of IHL’s environmental provisions and so questioned whether the PERAC study was an appropriate forum to consider customary IHL, suggesting that any such undertaking would require an extensive and rigorous review of state practice and opinio juris. Finally Viet Nam suggested that the ILC’s research should complement existing international law, particularly the Geneva Conventions and their additional protocols.

Future programme of work

In addition to the question of complementarity, a number of states commented on the other future research topics endorsed by the ILC’s working group in July. The Nordics acknowledged that environmental protection in situations of occupation needed to be addressed. They also cautioned that “…a more general reference to existing rules and principles on liability and responsibility seems preferable”, although it wasn’t clear whether this related solely to the question of occupation or to the working group’s proposal that responsibility and liability be studied in a wider sense. El Salvador reiterated a number of views expressed in 2016 and again suggested that the study abandon any distinction between international and non-international armed conflicts, because the environmental consequences of both are irreversible.

Lebanon hoped to see more research on obligations for environmental remediation; on the questions of proportionality and precaution; on the humanitarian consequences of environmental damage; and on the protection of the environment in situations of occupation. Malaysia hoped that its views on the roles and rights of indigenous peoples would be reflected in the future. The Netherlands had no wish for the topic to be broadened too much – beyond some exploration of the question of complementarity. Romania suggested that the Commission consider a general statement on the particular vulnerability of people who have a close connection with the environment, such as those who depend on agriculture, even if they do not qualify as indigenous people. They also felt that, while identifying the rules applicable to hybrid conflicts and non-state actors was difficult, they are relevant to PERAC.

Slovenia highlighted the work of the Global High Level Panel on Water and Peace, which has been led by its former president Prof. Danilo Turk. Its recent study had emphasised the role of water in situations of armed conflict, both as an instrument for peacebuilding, as a weapon of war and as a casualty of conflicts when infrastructure is targeted. Thailand urged the ILC to continue its engagement with international organisations with expertise in the field, including UNESCO, UN Environment and the ICRC. CARICOM drew attention to the “legal vacuum” resulting from the inapplicability of current international legal provisions for non-international armed conflicts, arguing that most contemporary conflicts are non-international or are civil wars. Ukraine welcomed all the topics proposed by the ILC working group.

The outcome of the PERAC study

Four years in and there remains little sign of consensus on the ultimate outcome of the ILC’s work on PERAC. Thus far, Dr Jacobsson has only suggested draft principles, although the ILC is capable of producing draft articles that could then form the basis of a legal instrument. State positions on a possible outcome remained largely unchanged from last year. Austria supported further work as compliance depended on a clear understanding of the existing norms. The Nordics welcomed the prospect of a first reading of the draft principles in 2019 and their completion upon second reading in 2021. El Salvador looked forward to the permanence of whatever the project produced. Malaysia understood that the final form of the draft principles would be subjected to further consideration at a later stage, and Peru indicated that it supported the ILC’s role in the codification and progressive development of international law. Viet Nam suggested that it was particularly interested in whether the process could establish state responsibility in dealing with the remnants of war.

The Netherlands urged the Commission to refrain from redefining the recognised existing rules of IHL, while the UK reiterated its view that it was unconvinced that there is a need for new treaty provisions in this area, instead suggesting that the preparation of non-binding guidelines or principles could be useful. The US expressed concern that the principles were:

“…aimed at enhancing the protection of the environment in relation to armed conflict – in other words, at influencing the progressive development of the law.”

The Czech Republic expressed similar concerns, using its entire statement to question the possible outcome of the process; it claimed that “…the Commission at no stage of its work indicated its intention to work on a draft legally binding instrument,” nor had it added the topic to its programme of work “with the view to its progressive development and codification in terms of article 15 of its Statute”. This is probably a matter of debate. The ILC’s original PERAC proposal, which was subsequently endorsed by the UN General Assembly, did suggest that: ‘The final outcome could be either a Draft Framework Convention or a Statement of Principles and Rules on the Protection of the Environment in Times of Armed Conflict.’ However the Czech Republic’s objection may be that the original proposal for the project came from UN Environment, rather than states or the General Assembly; they may have been unaware that the ILC has actively encouraged other UN bodies to submit proposals since at least 1996.

Looking ahead

It is clear that momentum on PERAC is growing. The widespread endorsement and engagement from conflict-affected states, together with the interest in conflict and the environment in fora such as the UN Environment Assembly, has helped lend it both moral and political weight. The expected publication by the ICRC of revised environmental guidelines for militaries, early next year, may also prove a useful contribution, particularly for the draft principles applicable during conflicts, which are largely informed by IHL.

Dr Lehto faces an unenviable task in analysing the topics identified by the working group and states. Issues of liability and responsibility are highly political, and CARICOM’s observation regarding the legal vacuum around non-international armed conflicts in general, and non-state actors in particular, is well-founded. Nevertheless, as they also pointed out, these themes are highly relevant to contemporary conflicts and must be studied.

It is heartening to see so many states highlighting the linkages between environmental degradation and human health and livelihoods. Whatever the final outcome of the PERAC project, it must seek to balance both the needs of people and the needs of the natural environment.

Doug Weir manages the Toxic Remnants of War Project.