New UN legal report addresses the responsibility of states and corporations for environmental damage in conflict

Background

In 2013, the International Law Commission (ILC) decided to include the topic Protection of the environment in relation to armed conflicts (PERAC) in its programme of work, and appointed Dr Marie Jacobsson as Special Rapporteur for the topic. As Special Rapporteur, Dr Jacobsson prepared three reports, containing draft legal principles covering the periods before, during, and after armed conflicts. Last year, the ILC considered the first report of the new Special Rapporteur, Dr Marja Lehto, which dealt with environmental protection in situations of occupation. Her second report was published in March, the objective being to adopt a complete set of draft principles together with the accompanying commentaries on first reading during the current session of the ILC.

Against this background, this blog discusses the second report of Dr Lehto, which addresses topics of concern identified by the ILC’s Working Group in 2017. Broadly speaking, her second report focuses on various actors’ conduct pertaining to environmental protection, responsibility and liability for environmental damage caused during armed conflicts. The blog concludes with some specific remarks on the proposed draft principles.

General remarks

The second report of Dr Lehto stands out in that it has managed to illustrate the multifaceted significance of the illegal exploitation of natural resources for the PERAC topic. For one, she sheds light on the close linkages between the extraction of natural resources and the concomitant loss of biodiversity and deforestation in conflict areas. Along the same lines, conflict resources, as their name suggests, serve as a source of financing for the operations of non-state armed groups, often obstructing the achievement of a lasting and sustainable peace. Through the various examples that Dr Lehto provides, it becomes more than evident that the illicit trade in natural resources helps perpetuate cycles of violence. Moreover, and in the contemporary context of the ‘New Wars’, where the war economy is globalised, drawing a clear dividing line between transnational criminal networks, terrorist groups and armed groups can be difficult.

On a related note, and in response to comments by various states at the Sixth Committee of the UN General Assembly (UNGA), and from ILC members, Dr Lehto’s second report has documented and treated in detail the role of various non-state actors during and after armed conflicts. More specifically, the second report delves into the conduct of non-state armed groups and corporations, with particular emphasis on the role of private military and security companies (PMSCs), as the latter are “in need of specific regulation” (para 94). It is equally noteworthy that the second report proposes draft principles on corporate conduct relating to environmental protection during and after armed conflict: the first is a general principle on corporate due diligence, whereas the second covers issues of corporate responsibility.

Before delving into a more detailed investigation of the proposed draft principles, two points merit additional attention. Firstly, having examined the topic of individual criminal responsibility, and moving on to discuss reparation measures ordered by the International Criminal Court (ICC), Dr Lehto refers to the nature and the context of the crimes as sensitive factors to be taken into account, explicitly singling out their gender-dimension. This reasoning, including the gender dimension could, it is argued, equally apply to reparations ordered for “Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”. ¹

Secondly, this year’s report adopts a straightforward stance in relation to the important, albeit difficult topic of the continued application of multilateral environmental agreements during armed conflicts. In the 2018 report it was mentioned that “international environmental law, both customary and conventional, continues to play a certain role in situations of occupation” (para 80, my emphasis). This was justified on the basis that situations of occupation might approximate peacetime conditions. However, in this year’s report Dr Lehto makes clear that “[t]he special protection provided by these [multilateral environmental] treaty regimes can be presumed to continue to apply in armed conflict, at least to the extent that their provisions do not conflict with the law of armed conflict” (para 28). In other words, this proposition endorses the presumption in favour of the continued applicability of multilateral environmental agreements during armed conflicts.

Taking a closer look at the proposed draft principles

For our purposes, the proposed draft principles can be divided into three clusters: a) draft principles that reproduce almost verbatim the text of related treaty provisions; b) the draft principles on corporate due diligence and responsibility; and c) the remaining two draft principles covering the topics of responsibility and liability, and human displacement. Lastly, I will briefly share some thoughts on the use of the term “environment” and its treatment by Dr Lehto.

Draft principles that based on the text of related treaty provisions
Three proposed draft principles in the second report bear significant resemblance to international humanitarian law (IHL) treaty provisions. It therefore comes as no surprise that the language employed in these three draft principles is mandatory, as they reflect or are inspired from long-standing and well-established international legal rules. This sets them apart from the draft principles pertaining to corporate conduct for example, which instead of being mandatory, begin with the verb “should”. To begin with, proposed draft principle 8 bis is entitled Martens Clause and its text reads as follows:

In cases not covered by international agreements, the environment remains under the protection and authority of the principles of international law derived from established custom, the principles of humanity and the dictates of public conscience in the interest of present and future generations.

The Martens Clause was introduced in the preamble of the 1899 Hague Convention II on the initiative of the Russian jurist Fyodor Fyodorovich Martens, in order to overcome the diplomatic impasse that the Hague Conference had reached. Since its first inclusion in this treaty, the Martens clause has been stipulated or reformulated in subsequent IHL treaties, including in Additional Protocol II. The objective of this clause is to cover existing gaps within IHL and, for our purposes, to protect the environment in situations that are not yet sufficiently regulated. Given that the Martens Clause functions as a fall-back provision, it is rightly situated in Part One of the ILC’s draft principles, which contains the general principles that remain applicable throughout the conflict cycle. Alternatively, it could be placed in their preamble.

Notwithstanding the fact that in its treaty formulations it is civilians and combatants who benefit from its protection, it seems justified to extend the clause’s protection to the environment, given that environmental protection could be included in all three sources of protection articulated in the Martens Clause, as has been convincingly argued. The extension of the Martens Clause’s scope to the environment dates back to the 1994 Red Cross Guidelines for Military Manuals (whose revised version is expected to be finalised this year) and to the International Union for the Conservation of Nature’s 2000 World Conservation Congress. In fact, Dr Lehto’s proposed draft principle merely adds the phrase “in the interest of present and future generations” – as compared with earlier formulations. On the one hand, this additional phrase evinces the relation of the topic at hand to the concept of ‘sustainable development’. However, on the other hand, and through a more critical lens, it reaffirms an anthropocentric approach, which might favour restrictive interpretations at the expense of constructions that enhance environmental protection.

Regarding its function, the Martens Clause could be interpreted merely as a reminder of the existence of relevant customary IHL. Nonetheless, by employing an evolutionary reading of IHL rules, Dr Lehto underscores that the Martens Clause in its proposed formulation could serve as the entry point for international human rights law and international environmental law, so that these two branches of international law can inform the interpretation of IHL in order to enhance the protection of the environment.

Dr Lehto also proposed two draft principles to be placed within Part Two of the final document, which contains the principles that remain applicable during armed conflict. Draft principle 13 bis, entitled Environmental modification techniques, provides for the following:

Military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to another State is prohibited.

The wording of the above proposed draft principle is drawn from Article I of the ENMOD Convention, which prohibits the deliberate manipulation of the environment. At first sight, draft principle 9(2), which is inspired from art 55(1) of Additional Protocol I, and which has already been adopted by the ILC, is worded similarly: “Care shall be taken to protect the natural environment against widespread, long-term and severe damage”.

However, on closer inspection, it is obvious that, as it is the case between the respective provisions of the ENMOD Convention and Additional Protocol I, proposed draft principle 13 bis and draft principle 9(2) differ in scope, purpose and, quite importantly, in that the qualifying adjectives of prescribed environmental damage are connected disjunctively. This creates a lower threshold for harm in the ENMOD Convention and the proposed draft principle, whereas in Additional Protocol I and draft principle 9(2) they are articulated conjunctively, setting a higher threshold. In my personal view, Dr Lehto is commendably cautious. She excludes non-state actors from the scope of the proposed draft principle and she further speaks of “the potential customary law status of the prohibition” (para 168) enshrined in ENMOD. This is in light of the controversy surrounding its existence beyond treaty law.

Dr Lehto then moves on to propose draft principle 13 ter, which stipulates a prohibition against the pillage of natural resources. The prohibition against pillage comprises a well-established and widely accepted prohibition in IHL, which covers both international and non-international armed conflicts, and is found in treaty law and in the decisions of international courts, including the International Court of Justice (ICJ). It is noteworthy that her report documents in great detail the various attempts by the international community, such as such as the Kimberley Process Certification Scheme, and efforts stemming from the private sector itself, to ensure that natural resources are traded in a fair manner and do not serve as the means to finance armed conflicts.

 

The draft principles on corporate due diligence and responsibility

Turning to corporate conduct, Dr Lehto has proposed draft principle 6 bis on Corporate due diligence, which reads as follows:

States should take necessary legislative and other measures to ensure that corporations registered or with seat or centre of activity in their jurisdiction exercise due diligence and precaution with respect to the protection of human health and the environment when operating in areas of armed conflict or in post-conflict situations. This includes ensuring that natural resources are purchased and obtained in an equitable and environmentally sustainable manner.

Building on the momentum that the “protect, respect and remedy” framework has created, as effectuated in the 2011 UN Guiding Principles on Business and Human Rights, as well as drawing from other non-binding initiatives, such as the 2011 OECD Guidelines for Multinational Enterprises, Dr Lehto has proposed an ambitious draft principle on ensuring the environmentally sound conduct of corporations in relation to armed conflicts. This is particularly focused on natural resources and primarily aimed at states, while its use of the verb “should” points to progressive development, rather than a reflection of existing international law. Be that as it may, should this draft principle influence the environmental conduct of corporations, it will form a very welcome addition to the PERAC framework.

However, it is likely that this draft principle will be met with scepticism by the international community. Regulating corporate conduct indisputably comprises one of the most heated and controversial issues in the international legal arena. It should, therefore, come as no surprise if there is a backlash against its current wording. Moreover, the term “precaution” might also raise concerns for some, since it could serve as a proxy for the precautionary principle under international environmental law, and whose international legal status remains unsettled. This is something that might have to be omitted, or be further clarified in the commentaries that will accompany the draft principles. Even more so, because corporations, rather than states, are expected to exercise precaution.

The second sentence of proposed draft principle 6 bis urges states to ensure, through the taking of the necessary measures, that “natural resources are purchased and obtained in an equitable and environmentally sustainable manner”. Dr Lehto’s report presents numerous examples of precedents to support its inclusion, including standard-setting initiatives. It should be noted that to the extent that these initiatives have been incorporated into domestic or regional law, they form “hard” law, which is binding on corporations. Nevertheless, it is not obvious from the text of the second sentence of draft principle 6 bis what the expected standard of behaviour from corporations is. To simplify matters, the second sentence could be separated and form a draft principle on its own, and at the same time clarify what the anticipated role of corporations is in the sustainable trade of natural resources.

Dr Lehto has further proposed draft principle 13 quinques addressing Corporate responsibility: 

1. States should take the necessary legislative and other measures to ensure that corporations registered or with seat or centre of activity in their jurisdiction can be held responsible for harm caused to human health and the environment in areas of armed conflict or in post-conflict situations. To this effect, States should provide adequate and effective procedures and remedies, which are also available for the victims of the corporate actions.

2. States should take the necessary legislative and other measures to ensure that, in cases of harm caused to human health and the environment in areas of armed conflict or in post-conflict situations, responsibility can be attributed to the corporate entities with de facto control of the operations. Parent companies are to be held responsible for ascertaining that their subsidiaries exercise due diligence and precaution.”

It goes without saying that this is an innovative provision that holds great potential in securing peace and environmental justice. The first paragraph is addressed to home states and, in this respect, the phrase “corporations registered or with seat or centre of activity in their jurisdiction” could be replaced by the term “corporations subject/within their jurisdiction”. Putative concerns relating to situations of occupation and the exercise of extraterritorial jurisdiction by states could be addressed in the commentaries. The text of article 3(h) of the 2009 African Convention for the Protection of Internally Displaced Persons in Africa (the Kampala Convention) (“[e]nsure the accountability of non-State actors concerned, including multinational companies and private military companies”) seems quite apposite, not only due to its simple and broad wording but also by virtue of its reference to PMSCs.

In any event, three points need to be clarified. Firstly, the required threshold of harm that triggers the application of draft principle 13 quinques cannot be easily deduced from the text. Even more so, given that environmental damage either in wartime or in peacetime has to reach a certain threshold – in the vast majority of the cases at least – for it to become a matter of concern for international law.

Secondly, and in a similar vein, it is not at all clear what the required causation standard is between the corporate conduct under scrutiny, and the occurrence of harm to human health and the environment. In addition, the reference to “areas of armed conflicts or in post-conflict situations” might be over-inclusive, given that, for our purposes, environmental damage has to be related to a certain, even if remote extent, to an armed conflict.

Finally, the second sentence of paragraph 2 might be construed as imposing an international legal obligation on parent companies and, since this understanding is not the mainstream view at the moment, it is quite likely to be met with strong objections. If this sentence is referred to the ILC Drafting Committee and survives it, its precise ambit will have to be elaborated on in the commentaries.

Before investigating the remaining two proposed draft principles, it should be noted that unfortunately there is no proposed draft principle dealing explicitly with the environmental conduct of non-state armed groups, even though Dr Lehto dedicated a well-researched section of her second report to this topic. In her report she argues that “[t]he international responsibility of organized armed groups, while not a legally uncharted area, is a fragmented topic on which few solid conclusions can be drawn” (para 58). Given the interest from states during earlier debates at the UN General Assembly, and the significant harm that non-state armed groups have caused to the environment in recent conflicts, it is unfortunate that a principle couldn’t be identified in this report.

The remaining two draft principles on responsibility and liability, and on human displacement

Dr Lehto devoted a separate chapter of her second report to state responsibility and liability for environmental damage in armed conflicts. Her thorough examination, ranging from the UN Compensation Commission (UNCC) established in the aftermath of the Iraqi invasion and occupation of Kuwait in the early 1990s, to reparations and to ex gratia payments, inter alia, led her to propose draft principle 13 quarter: 

1. These draft principles are without prejudice to the existing rules of international law on responsibility and liability of States.

2. When the source of environmental damage in armed conflict is unidentified, or reparation from the liable party unavailable, States should take appropriate measures to ensure that the damage does not remain unrepaired or uncompensated, and may consider the establishment of special compensation funds or other mechanisms of collective reparation for that purpose.

3. Damage to the environment for the purposes of reparation shall include damage to ecosystem services, if established, irrespective of whether the damaged goods and services were traded in the market or placed in economic use.

The first paragraph is a familiar “without prejudice” clause, indicating that the general framework, as elaborated mainly by the ILC itself in 2001, remains applicable to the topic under consideration. It is remarkable that Dr Lehto provided a thorough analysis of cases in which multiple actors are involved in causing environmental damage.

The second paragraph takes issue with the all-too-often lack, or delayed restoration and compensation, of environmental damage in armed conflict. In fact, it foregrounds a pragmatic proposal whereby remediation, even without a determination of responsibility, is prioritised. True, it attempts to progressively develop the law. Granted, critical opinions might be voiced against it. Nevertheless, it could contribute considerably to encouraging rapid measures to restore environmental damage caused during armed conflict.

The third paragraph of the proposed draft principle 13 quarter ensures that damage to ecosystem services in armed conflict will be considered in reparation measures. In deciding compensation claims for wartime environmental damage, the UNCC has already held that pure environmental damage remains compensable under international law, an approach that was recently taken up by the ICJ in its 2018 Compensation Judgment in the case between Costa Rica and Nicaragua. Interestingly, this was the first ever time that the ICJ has granted compensation for environmental damage, which is quite important for our purposes, even if the factual setting of that case was peacetime. In a nutshell, paragraph 3 consolidates the proposition that pure environmental damage in armed conflicts is equally compensable, and subject to reparation measures, while at the same time advancing an ecosystem services approach.

Lastly, proposed draft principle 14 bis, which is entitled Human displacement, provides for the following:

States and other relevant actors should take appropriate measures to prevent and mitigate environmental degradation in areas where persons displaced by conflict are located, while providing relief for such persons and local communities.

The significance and topicality of human displacement is made clear by the recently issued ICRC study on displacement in times of armed conflict. The text of draft principle 14 bis is inspired by the 2009 Kampala Convention, and by the non-binding 2015 edition of the Draft International Covenant on Environment and Development. The inclusion of “other relevant actors” within the personal scope of the proposed draft principle, and the reference to “local communities” is very welcome.

Defining “the environment”

In the final part of her second report, Dr Lehto addresses the definition of the “environment” and the harmonisation of the use of terms, bearing in mind that IHL’s provisions refer to the “natural environment” as the object of protection. After exposing various views and approaches on the definition of the environment, Dr Lehto reaches the conclusion that the latter is “an elusive concept that reacts and adapts to the increased knowledge of the elements of the environment and their mutual interaction” (para 192).

By rightly focusing on modern understandings of the environment as an interactive system, whose elements, including humans and nature, should not be considered in isolation, she argues that no draft principle defining the environment is required. In an equally important move, which overcomes the outdated distinction between the human and natural environment, she proposes that the term “environment” be used throughout the set of draft principles on the protection of the environment in relation to armed conflicts, on the understanding that it will be clarified in the commentaries that the interpretation and application of Additional Protocol I are not affected.

Conclusion

In her second report on the protection of the environment in relation to armed conflicts, Dr Lehto has provided a wealth of information and well-researched legal views. Moreover, she has not only managed to build on existing international law, as evidenced by the proposed draft principles on the Martens Clause, environmental modification techniques and the prohibition of pillage, but also to submit best practice provisions, such as those on corporate conduct or human displacement. Her suggestion to use the term “environment” throughout the final text of the draft principles, and her reasoning to this end, reflect modern and inclusive understandings of environmental protection. Her commendable suggestions are already being tested before the ILC plenary and, hopefully, will then be referred to the ILC Drafting Committee for further refinement.

 

Stavros Pantazopoulos is CEOBS’ Legal and Policy Analyst.