State positions on the draft principles on the Protection of the environment in relation to armed conflicts after first reading
Published: March, 2022 · Categories: Publications, law and policy
Overview
For nearly a decade, the UN’s International Law Commission has been working on a project to clarify the legal framework that protects the environment before, during and after armed conflicts, and in situations of occupation. In autumn 2022, states at the UN General Assembly will have an opportunity to adopt the draft principles that this process has produced.
In 2021, states and others were invited to submit written comments on the 28 draft principles and on their commentaries. This was to inform a final review and changes to them prior to their adoption by the Commission, and then by the UN General Assembly. This report analyses the 19 written submissions, made by 24 states.
Key findings
- The draft principles and their commentaries face opposition from a number of states; this is particularly focused on the obligations to protect the environment during conflict.
- For many states, key issues such as the draft principles’ normative status and the co-applicability of different fields of law remain unresolved.
- The very broad scope of the draft principles mean that it is rare for a state to accept all of the aims they enshrine.
- A number of persistent objectors are using arguments based on legal conservatism to challenge the draft principles.
- The ILC faces a choice between watering down the principles in the hope that this may pacify objectors prior to the adoption of the principles, or sticking to a strong, progressive standard.
- Advocacy will be needed from all stakeholders to get the PERAC principles welcomed at the UN General Assembly this autumn.
- The subsequent implementation of the PERAC principles will demand a long-term commitment from states.
Contents
1. Introduction
If adopted, and implemented, the International Law Commission’s (ILC) draft principles (DPs) on the Protection of the environment in relation to armed conflicts (PERAC) will be the most significant development for the legal framework on conflict and the environment since the 1970s. The project has been ongoing since 2013 and has progressed through reports from its Special Rapporteurs, meetings of the ILC itself, and in annual debates at the UN General Assembly’s Sixth Committee. The COVID-19 pandemic delayed the development phase of the ILC’s process by a year but it is now set to conclude in 2022.
In 2019, the ILC adopted 28 draft principles and their commentaries at “first reading”, the second reading and finalisation of the principles and commentaries will take place between the end of April and July 2022. States and others were invited to submit their views on the principles and their accompanying commentaries – essentially a consultation on the final outcome – and the responses will be used by the ILC’s Special Rapporteur Ambassador Marja Lehto of Finland, and the members of the ILC to inform any final changes before adoption. The Conflict and Environment Observatory and civil society partners were also invited to submit written comments, which can be found here.
The submissions are important as this was the last opportunity for substantive comments from states, an opportunity for them to comment on the entire suite of principles, and an opportunity to register opposition or support in writing. Moreover, they also indicate how the PERAC principles may be received at the UN General Assembly in autumn 2022, and how successful their future implementation will be.
More than 50 states have submitted views on the draft principles over the years, with a subset of those engaging more fully, either in support or objection. In this round, Belgium, Canada and Ireland engaged for the first time, while others, such as the US and Israel, submitted their most detailed views to date. The written submissions are available here: Belgium, Canada, Colombia, Cyprus, Czech Republic, El Salvador, France, Germany, Ireland, Israel, Japan, Lebanon, the Netherlands, the Nordic countries, Portugal, Spain, Switzerland, UK and the US.
While a number of the countries that submitted their views have long supported the process, such as Colombia, El Salvador, Lebanon, the Nordics and Portugal, enthusiasm among governments is far from universal. Canada joined France, Israel and the US in submitting serious objections to the project, and to its objective to enhance the protection of the environment in relation to armed conflicts.
2. Foundational themes in national positions
The nature and scope of the PERAC project has created a number of challenges to those countries favouring the status quo, or which are motivated by legal conservatism. The PERAC process was triggered because it was recognised that international humanitarian law (IHL) alone was incapable of providing sufficient protection to the environment, and because other bodies of law such as human rights and international environmental law (IEL), were applicable throughout the temporal cycle of conflicts and could therefore help plug the gaps in protection. As the ILC is mandated with both the progressive development, and the codification of international law, this approach was well within its mandate.
However, while some states’ respect for IHL’s environmental provisions has improved over the last few decades, a number of states would prefer that the permissive character of the existing framework is not constrained by new or more expansive rules. Before considering state views on the draft principles themselves, it is worth exploring five overarching themes that have emerged from this tension, and which are addressed in the submissions of a number of states.
2.1 Protecting the “environment” or the “natural environment”?
There is no legally agreed definition of the environment. The term natural environment is used in IHL in part because of its anthropocentric nature but also by virtue of the prevailing understanding of the environment in the 1970s. There are compelling arguments in favour of using the term environment throughout the PERAC principles, as it is broader in scope. However, as the principles that apply during conflict are informed by and reflect IHL, this has created a point of tension. The Commission is expected to decide at second reading on which term to use in “those provisions of Part Three that draw on Additional Protocol I [API] to the Geneva Conventions”.
The issue was raised by a number of states. Those supporting the environment included Belgium and Spain – as it reflected developments in international law – and the Nordics, which suggested natural environment should just be used in the commentaries when referring to API. The Czech Republic queried the absence of definitions of basic terms, including the natural environment, Portugal proposed that the text reiterate that the environment is a common good of all humanity, whereas Switzerland used the term natural environment throughout its submission but requested a definition of the environment in the introduction to the principles.
Both France and the UK argued that natural environment be retained for the provisions that draw on API, for the sake of consistency as far as France was concerned, while for the UK it was to avoid uncertainty.
2.2 Reflection, evolution, codification or progressive development?
One of the most profound areas of tension is on the question of the normative status of the draft principles. Will they reflect or codify existing obligations, or are they progressively developing the law? Many states disputed both – that the principles reflect custom, and that it is appropriate to progressively develop the law in particular areas. Portugal’s submission considered the principles an interesting balance, where obligations were clearly distinguished. The Nordics were similarly persuaded and welcomed the ILC’s clarity in defining where it had undertaken codification or progressive development.
However, Colombia were concerned that several of the draft principles seemed worded to reflect a binding obligation, while the outcome of the process ought to be non-binding recommendations. Germany felt that the international community should develop the law in this area but that the wording on some principles was currently ambiguous, and that more discussion of their customary nature was warranted. Ireland supported many of the recommendatory principles but also felt that more reflection was needed on several that were promoted as binding rules. The Netherlands felt that more distinction and clarity was needed between binding rules using shall and recommendatory principles using should, a view shared by Spain, which felt that the commentaries were not always clear enough.
Switzerland suggested that the law should be enhanced in order to fill gaps on the subject without changing existing obligations, including those flowing from IHL. The UK questioned the authority of some of the sources used in support of the DPs, suggesting that many did not constitute state practice. The US were particularly critical of what they saw as a lack of normative clarity, suggesting revisions to many principles. They also criticised the reliance on the International Committee of the Red Cross’s (ICRC) customary law study, suggested that citations be instead used from the US Law of War Manual, and objected to any suggestion that the occupation principles were binding in nature.
2.3 Which legal frameworks are applicable?
In spite of the rationale behind the PERAC project, some states still argue, as a point of principle, that IEL and human rights law are of questionable applicability during armed conflict, which they would prefer that the project limits itself to. This has been ongoing since the start of the ILC’s work. Colombia is not one of them, and noted that “to date, laws enacted around the world to prevent, reduce and repair damage to the environment caused by armed conflict have been neither sufficient nor effective.”
The approach of examining how other legal fields can complement IHL was welcomed by Ireland, Portugal and the Nordics, which also noted their usefulness pre- and post-conflict. Spain advised that there should be more integration between IEL and IHL in the principles as there was less reticence about the progressive development of IEL than IHL.
Switzerland’s priority was for IHL to be adequately reflected in the new regime, but did encourage more human rights wording. The UK recognised the validity of applying IEL to matters not addressed by IHL, particularly before or after conflict, but was conscious of the challenge in adopting principles that cover the whole conflict cycle and which address diverse fields of law. Germany worried that amalgamating too many different legal regimes beyond IEL and human rights law could lead to challenges in implementation.
France challenged as “questionable” the general applicability of IEL and human rights law during armed conflicts, and rejected the idea that the draft principles could create new legal obligations for them. Israel argued that the “conflation” of IEL, IHL and human rights law was among the reasons why the principles could only ever be recommendatory. Japan was wary of the approach because of the calculations over military necessity and humanity in IHL. The US wanted to see IHL recognised as lex specialis in the wording of the principles, as well as in the commentaries, and suggested that attempts to apply IHL to the environment might “diminish the protection afforded civilians, civilian objects, combatants placed hors de combat, and other persons and objects protected by IHL.”
On this last point, although in IHL the natural environment is generally recognised by default as civilian in character, as it is not a military objective, this was challenged by Israel as not reflecting customary IHL, and being “untenable from an operational perspective”. Similarly, the US challenged the notion that it is always a civilian object, suggesting it received protection only insofar as it constitutes a civilian object. The Nordics meanwhile welcomed PERAC’s recognition of the strong link between the protection of civilians and the protection of the environment as essential in understanding how IHL protects the environment.
2.4. Applicability to international and non-international armed conflicts
Another vital component of PERAC is that, in general, the draft principles should not differentiate between international and non-international armed conflicts, applying equally to both. The latter of which are more common but underserved by existing treaty-based IHL. However, a number of conservative states have long challenged this approach, citing the tension it creates with API, which applies to international armed conflicts.
Engaging with the process for the first time, Canada argued that it risked undermining the coherence of the principles applicable during conflict. The Czech Republic cautioned that the draft principles went beyond the corpus of law applicable to non-international armed conflicts, with France agreeing that the distinctions could not be disregarded. Germany felt that the different legal regimes had been successfully aligned in many cases but that a differentiated analysis was still needed. Israel felt that the differences between the two frameworks were “not negligible” when it came to the environment, expressing its concern about the approach at length, whereas Japan did not object to this progressive approach but felt that distinctions should be respected.
Cyprus observed that non-international armed conflicts can damage the environment so should be regulated, and the Netherlands reiterated its earlier support for the approach, while requesting that the commentaries address the status of some elements of the draft principles that apply solely to international armed conflicts. Portugal welcomed the ILC’s approach as being both necessary and reflective of the current tendency towards harmonisation in IHL, the Nordics viewed it as logical, and it was also welcomed by Switzerland.
2.5 Regulating non-state actors
In considering how the environment can be damaged or protected in relation to armed conflicts, it is necessary to address the role of a wide range of non-state actors. These might include non-state armed groups (NSAGs), private military and security contractors (PMSCs), corporations and business enterprises, and international and humanitarian organisations. PERAC has sought to address their roles and responsibilities in different ways and this has often attracted comment from states.
Colombia proposed that a new draft principle be added on the responsibility of NSAGs, and for a provision to be added that would require NSAGs to also conduct weapons reviews. Portugal appreciated the recognition of non-state actors as relevant in terms of their “role, responsibility, and liability in relation to humanitarian assistance and the protection of the environment”. The Nordics appreciated that the broad scope of the principles inevitably meant that their focus went beyond belligerent states, and also encompassed international organisations, NSAGs, corporations and civil society organisations. Switzerland sought clarification on whether the principles apply to NSAGs and PMSCs, and suggested that the principles address the responsibility and accountability of NSAGs for environmental damage.
The US felt that the principles unfairly stigmatised corporations as “bad actors” while ignoring “non-State actors such as insurgencies, militias, criminal organizations, and individuals, who have obligations under IHL”.
3. State views on the draft principles, by principle
The text of each draft principle can be viewed by clicking on the green reference at the end of each principle’s title.
PART I – INTRODUCTION
DP1 – Scope1
Perhaps the most important component of the PERAC project is its temporal scope, and DP1 establishes that the principles will apply across the conflict cycle – before, during, after and in situations of occupation. It is an approach that is broadly supported by states, although Colombia cautioned that existing multilateral environmental agreements, some of which continue to apply during conflicts, should be checked to ensure that the principles do not duplicate or contradict them. Cyprus welcomed and strongly supported the principles applicable to occupation, although cautioned that they should in no way be seen as legitimising or recognising the illegal use of force.
Portugal noted the similarities to the approach taken in the legal framework on the protection of cultural heritage in relation to armed conflicts. However, Spain felt it striking that the principles do not address the suppression of international crimes related to the protection of the environment during armed conflict in any detail. They also thought it helpful to include consideration of how the application of the principles would be monitored. This was a point also addressed by the Nordics, which proposed a new draft principle establishing an international monitoring mechanism. Overall the Nordics thought the temporal approach well suited to the topic but did suggest another new principle on gender, and felt that language on remedial measures should be strengthened.
Switzerland approved of the temporal approach but cautioned that the phases are not always clearly delineated, suggesting more reflection on the potential overlaps. However, Japan thought the focus should only be on the principles that apply during conflicts, so as not to overload the ILC. The US argued that the proposed scope, as worded, “would apply to the conduct of both State and non-State actors with respect to the protection of the environment at all times, regardless of whether the harm or potential harm was related to an armed conflict.”
DP2 – Purpose2
DP2 defines the purpose of the PERAC principles as being to enhance “the protection of the environment in relation to armed conflict, including through preventive measures for minimizing damage to the environment during armed conflict and through remedial measures.” Within this, El Salvador highlighted the importance of ensuring reparations to victims and the promotion of environmental conservation and restoration. Portugal, Switzerland and the UK made suggestions for how the language could be strengthened, each suggesting the inclusion of avoiding or preventing harm, not just minimising damage.
Colombia reiterated its DP1 warning that the principles should avoid conflicting with existing obligations under IEL, and not seek to duplicate existing protection regimes. The US felt that the preventative and remedial measures addressed by the DPs should be discretionary, and suggested that the term “appropriate” be introduced before each.
PART II – PRINCIPLES OF GENERAL APPLICATION
DP3 Measures to enhance the protection of the environment3
DP2 defines the purpose of the PERAC principles as being to enhance “the protection of the environment in relation to armed conflict, including through preventive measures for minimizing damage to the environment during armed conflict and through remedial measures.” Within this, El Salvador highlighted the importance of ensuring reparations to victims and the promotion of environmental conservation and restoration. Portugal, Switzerland and the UK made suggestions for how the language could be strengthened, each suggesting the inclusion of avoiding or preventing harm, not just minimising damage.
Colombia reiterated its DP1 warning that the principles should avoid conflicting with existing obligations under IEL, and not seek to duplicate existing protection regimes. The US felt that the preventative and remedial measures addressed by the DPs should be discretionary, and suggested that the term “appropriate” be introduced before each.
DP4 Designation of protected zones4
This principle is closely connected to DP17 on Protected zones and many states commented on both in concert. In the written comments, and in 2019’s debate in the UN General Assembly, there was a lot of discussion on the question of cultural importance, in some cases it appeared that states were reluctant to accept the cultural value of the environment per se, or queried the cumulative requirement of and.
Cyprus felt that the establishment of protected zones is essential but invited further examples of the term cultural importance in the commentary. Germany reiterated its support for the principle but sought more qualification on the nature of the agreement required and on the definition of cultural importance. Portugal welcomed the move towards a systematic and integrated framework to protect values and objects of importance to all of humanity. However, they also called for more ambition, being unconvinced that DP4 and DP17 would confer sufficient protection without harmonisation with DP13 on General protection of the natural environment during armed conflict.
Spain recommended a disjunctive or in DP4 and proposed the UNESCO terms “cultural heritage and natural heritage” be used. The Nordics felt DP4 and DP17 had great potential and also suggested a disjunctive or be used, providing that it did not compromise the protection of indigenous peoples in DP5. Switzerland was also enthusiastic, noting the connection with Article 60 of API on demilitarised zones but invited various clarifications, including on how they would be designated, the scope of protection and the definition of “cultural”. The UK saw the value in being able to designate protected zones of environmental importance and proposed new wording for both DP4 and DP17 that it felt better managed the inclusion of cultural importance.
Colombia requested more precision and clarification on how agreements could be reached, and by whom, for example between states, a state and an international organisation or between opposing parties. The Czech Republic thought the notion of “areas of cultural importance” too broad and already addressed by IHL, adding that there is no reference to non-state actors, in spite of them being referred to in the commentary, nor was it clear which rules would govern areas during conflicts. Japan raised several concerns, including how states would manage and operate protected zones, and their abuse, and requested clarification on “cultural importance”. The US suggested an extensive rewording of the principle, including a reference to the 1954 Hague Convention, and language on the presence of military forces. They also argued that not placing military forces in remote areas means placing them closer to population centres, thus risking greater civilian casualties.
DP5 Protection of the environment of indigenous peoples5
DP5 has never enjoyed universal support. The Czech Republic felt that also addressing the principle to non-state actors would contribute to the progressive development of international law, although they questioned whether indigenous people are the only category of particularly vulnerable people dependent on the environment. Germany echoed this insofar it could foresee practical difficulties in favouring particular protected persons during hostilities.
France observed that its constitution forbids it from recognising any particular peoples within the French people, and prevents the granting of collective rights to any group defined by a common origin, culture, language or belief. As it does not recognise the customary basis of the UN and International Labor Organisation instruments that the principle is based on, it does not consider that DP5 reflects customary law. The UK felt that because these two instruments did not address armed conflict as such, DP5 was contentious and should be deleted.
El Salvador, which supports DP5, took the opportunity to highlight why environmental restoration is vital for supporting the cultural needs of indigenous peoples. The Netherlands thought DP5 a good example of the dynamic established by the ILC, which recognises that the existence of an armed conflict does not automatically terminate or suspend other treaties. Spain felt that it should be strengthened in various ways including by replacing should with shall, particularly with respect to the need to obtain free, prior and informed consent when implementing measures that could impact indigenous peoples, a norm also noted by the Nordics. While the US appreciated the goals of DP5, it also appreciated the use of the non-binding terms should and as appropriate.
DP6 Agreements concerning the presence of military forces in relation to armed conflict6
DP6 was inspired by the long history of serious pollution incidents connected to the presence of military forces. These have occurred during peacetime, as well as during conflicts, and this issue of temporal application was raised by several states. Cyprus felt that it ought to also encompass the need to protect the environment during drills, training and other conduct not necessarily related to armed conflict. France observed that it was unclear whether the principle applied to agreements undertaken in peacetime in anticipation of a future conflict. Israel suggested rewording the principles so that it applied only to agreements that explicitly refer to armed conflicts. The US noted that it was inconsistent with most agreements, and proposed restructuring it.
Colombia suggested clarifying that the “impact assessments” in the principle are environmental, they also suggested broadening the scope of the principle to encompass actors other than military actors. For example, during the 2003 Iraq War US bases were managed by PMSCs like Kellogg, Brown and Root. Japan provided some background to the environmental dimensions of the stewardship agreement it had entered into with the US in 2015 to regulate US bases on its territory, many of which have been associated with environmental problems. Portugal wished to see the term “mitigation” inserted into the principle, while DP6 was one of several where the UK proposed the consistent use of language to describe the principle’s aims, to “prevent, mitigate and remediate harm to the environment”.
DP7 Peace operations7
The use of the verb shall in DP7 attracted significant comment from states. Canada refused to accept that DP7 reflects customary law, based as it is on “non-binding policy documents adopted by the EU, the UN and NATO”. They suggested it be amended to should. Germany, which also requested clarification on the definition of peace operations, agreed. Japan suggested are encouraged to, and for its scope to be expanded to encompass “States, international organizations and other relevant actors”. The Netherlands felt that while the kind of documents that the principle was based on often reflect customary international law, there was no evidence that this was the case in this instance.
Switzerland suggested clarification of the legal basis for the obligations in the principle, and thought a without prejudice clause might address any contesting obligations. The US agreed that it represented best practice, rather than legal obligation but complained that it was unclear if this was a case of progressive development of the law. If it wasn’t, then the ILC “should consider deleting or revising it because the ILC mandate does not extend to recommending policy or “best practices””.
Of the two other states which commented, Portugal recommended inserting the measure to “restore”, while the UK again proposed aligning the obligations: to “prevent, mitigate and remediate harm to the environment”.
DP8 Human displacement8
There has been a growing trend for measures to address the demands that growing populations of displaced people can place on resources such as water and wood for fuel and shelter. Nevertheless, France complained that the wording of the principle was less clear than the aims set out in its commentary, and rejected any suggestion that the appropriate measures reflect any legal obligations.
Lebanon agreed that the principle would help to prevent harm but thought that it should include a reference to the right of the state to relocate displaced people from areas where they might pose harm to the environment. The US suggested it be restructured to foreground the anthropocentric character of IHL, and in the process that the obligation be weakened to consider taking appropriate measures. The Czech Republic had doubts about the practicality of including the category of “other relevant actors” as it wasn’t clear what their contribution could be.
The Netherlands, however, welcomed the focus on this indirect form of environmental harm stemming from conflicts, as it did DP10 and DP11 on resource exploitation, arguing that the principles were playing an important role in developing the law. The Nordics suggested mentioning non-state armed groups as relevant actors in the commentary. Switzerland suggested displacement was a phenomenon that needed to be addressed at all stages in the lifecycle of conflicts. The UK once again suggested that the language be aligned across DPs 2, 6, 7 and 8 to read “prevent, mitigate and remediate harm to the environment”.
DP9 State responsibility9
There are few cases where states have been held accountable for the environmental damage they have caused in conflict. DP9 aims to address this, and reaffirm the principle that such damage does not have to be anthropocentric in character. The principle is informed by the ILC’s Draft Articles on State Responsibility.
Colombia suggested that what can constitute reparations be explored further, that establishing responsibility was not always straightforward in conflict contexts, and that non-state actors or organisations may also be responsible for damage. Cyprus endorsed the view that state responsibility can be triggered for environmental harm in the context of belligerent occupation on the basis of several legal frameworks, including IHL and human rights law. El Salvador encouraged the Commission to look to contemporary environmental law, where responsibility may be engaged even where the harmful act itself is not wrongful.
Germany strongly welcomed the inclusion of environmental damage per se, but drew attention to two parts of the commentary where clarification was required in order to ensure alignment with the rules on state responsibility. Lebanon thought the principle could be improved with a reference to damage that cannot be calculated financially. The Nordics thought it aligned with the general law on state responsibility but allowed room for development, such as on how reparations can be channelled to affected individuals and communities.
The Czech Republic took issue with three parts of the commentary, which they felt were misleading, highlighting the two conditions required for responsibility to apply, the applicability of IHL in the context of armed conflict, and the reference to liability for transboundary harm caused by activities not prohibited by international law. Switzerland felt that the ILC should clarify what the added value of DP9 was, over and above the ILC’s Draft Articles on State Responsibility. They also requested clarification on what full reparation might entail, whether in relation to non-financial reparations, or in cases where environmental damage cannot be fully remediated.
France thought the principle unclear and the without prejudice clause potentially ambiguous, and that it would be simpler to just say that it “is governed by the general rules on the responsibility of states for internationally wrongful acts.” They also worried that damage during an armed conflict could incur state responsibility even if it resulted from an act that complied with IHL. Similarly, that responsibility could be triggered by a breach of IEL or human rights law in the context of a conflict, even though IHL was, in their view, lex specialis. Israel and the US challenged an assertion in a commentary footnote that articles 35 and 55 of API were customary in nature; the US also argued that damage to the environment per se is not necessarily an internationally wrongful act.
Strongly in the realm of progressive development, these two principles were always expected to be viewed by some states as contentious, even though they were presented as non-binding. With many states addressing them jointly in their comments, we do likewise below.
Canada, where nearly half of the world’s mining companies are headquartered, and where the topic of overseas corporate conduct has been on the domestic agenda for some years, rejected an obligation to ensure that national corporations exercise due diligence with respect to environmental protection when operating overseas. Israel was concerned that the DPs implied extra-territorial corporate due diligence and liability, suggested they were beyond the scope of the study and the principles be deleted. Japan failed to see the relationship between corporate due diligence and IHL and requested clarification. They also queried why both principles referred to human health when API’s Article 55 does not.
Regarding DP10, the UK felt it unclear why it was necessary for states to take legislative measures, suggesting that the desired impact could be achieved without legislation. Discussing both DP10 and DP11, the US asked why the ILC had singled out and stigmatised corporations and other business enterprises as uniquely “bad actors”, without addressing “other non-State actors such as insurgencies, militias, criminal organizations, and individuals, who have obligations under IHL.” They suggested the principles be revised to address this, or deleted. They also requested greater consistency between the scope of the two principles, and cautioned that there is no support in current state practice for the exercise of extra-territorial jurisdiction over corporations.
Commenting on DPs 10 and 11, Colombia suggested a need for greater clarity as to “what may or may not be required of a private party operating in an armed conflict zone.” The Czech Republic felt it unclear why the fundamental IEL principle of due diligence was only mentioned in relation to DP10 and DP22 (occupation). On DP11, they observed that this is the only principle addressing the liability of non-state actors, and it was unclear why this was limited to business corporations. France simply noted that the commentaries highlight the fact that these principles do not reflect customary international law. Switzerland encouraged the ILC to restrict the focus of these DPs to PMSCs, as their activities are directly related to armed conflicts – PMSC regulation is an interest area for the Swiss. Commenting on DP11 they drew the ILC’s attention to the Montreux Document on PMSC regulation, and also proposed adding a new principle dedicated to PMSCs.
Cyprus suggested DP11 be amended to include reference to “affiliate entities” and not just subsidiaries operating within the same company structure. Germany broadly welcomed the principles and their aim of addressing the ramifications of corporate activities in conflict-affected areas, with the understanding that they do not currently reflect customary international law, and suggested various points of clarification in both principles. As noted above, the Netherlands felt DP10 and DP11 played an important role in the development of international law, and had consistently supported the reference to due diligence in DP11. Spain recommended that the applicability of DP10 and 11 to situations of occupation be made explicit in either the draft principles or commentaries. The Nordics welcomed both principles, which they noted belong to an area of the law under rapid development, though wondered “whether it would make sense to use the term ‘business enterprises’ instead of ‘corporations and other business enterprises’, in line with the United Nations Guiding Principles on Business and Human Rights.”
III – PRINCIPLES APPLICABLE DURING ARMED CONFLICT
DP12 Martens Clause with respect to the protection of the environment in relation to armed conflict12
The Martens Clause is intended to provide a legal back stop, prohibiting the most harmful activities during conflict even where they are not regulated by written or treaty law. In a trend visible throughout this section, where the principles are closely linked to anthropocentric IHL, a number of states challenged the extent of the relationship between the protection of the environment, and the protection of civilians. As discussed above, the situation is compounded by the legacy of the term natural environment, as used in IHL, and its separation of what is perceived as human from what is natural.
Canada stated that it did not recognise this restatement and suggested that the reference to the Martens Clause be removed from the draft principle, unwilling to make the link between the IHL principle of humanity or the dictates of public conscience and the protection of the environment. France challenged the Commission’s suggestion that there was consensus over the interpretation of the Martens Clause as an autonomous source of law that is able to establish prohibitions in the absence of customary or treaty rules, especially in regard to certain weapons. While Israel agreed with some of the Commission’s analysis, it disputed the argument that the Martens Clause is triggered by the lack of any rule, and the implication that it therefore serves as another independent source of international law. It also disputed that the principles of humanity can be understood as referring more generally to humanitarian standards in IHL and human rights law, which also provide important environmental protections.
Colombia encouraged the Commission to bear in mind that the context of its use would be hybrid wars, which demanded that more variables need to be considered, such as those concerning the actions of states, and how the dictates of public conscience might change in such circumstances. The Czech Republic sought more explanation in the commentary over what it viewed as the Commission progressively developing the scope of the Martens Clause’s application to the natural environment. Germany thought DP12 important but worried that the concepts of humanity and nature may become blurred, suggesting changes in this regard. It did however acknowledge that the dictates of public conscience may indeed refer to the need to protect the environment in and of itself. Lebanon also took issue with the use of the term “principles of humanity”, thinking it preferable to reformulate it in a manner more appropriate to environmental protection.
While the Netherlands did not oppose DP12, it cautioned that it should not be given the title Martens Clause as it has been viewed as controversial by some states in the UN Generally Assembly Sixth Committee. The UK welcomed the commentary’s recognition that differing views exist on the legal consequences of the Martens Clause and queried whether the environment can remain under the protection of the principles of humanity, given that their function is to protect humans. As with Israel it challenged the “expansive” interpretation of the term to encompass human rights law, suggesting the commentary be revised to reflect what it views as the IHL-specific nature of the principle of humanity. The US was also of this view but did feel that the application of the Martens Clause to the environment was warranted “because principles of international law may provide protection to the natural environment and may also authorize actions that could affect the natural environment.”
More positive, Spain welcomed extending the scope of the Martens Clause as a significant step forward. The Nordics also appreciated confirmation of the clause’s application to the protection of the environment, as did Switzerland, which suggested that it can be seen as prescribing positive obligations when a proposed military action “would have disastrous consequences for the environment.”
DP13 General protection of the natural environment during armed conflict13
Since 2009, the recognition that IHL’s environmental provisions need to be clarified and made more effective has been a key motivation for both the PERAC project, and for the ICRC’s work to update its military guidelines for the environment, which the ILC’s study has sought to complement. However, for the nuclear weapons states, the ecological realities of what the use of their arsenals would entail casts a long shadow over whether or not they can accept IHL’s environmental provisions. Coupled with IHL’s anthropocentrism, and a general reluctance to amend IHL’s current permissiveness, this has ensured that the DPs applicable during conflicts have often been met by a lack of enthusiasm. The impossibly high and poorly defined cumulative triple threshold for unacceptable damage – widespread, long-term and severe – has also faced considerable criticism.
Canada disputed whether Article 55 of API, which informs DP13(2), and to which it is party, had achieved customary status. Suggesting that this distinction be acknowledged, it added that 13(2) should also clearly state that it applied only during international armed conflicts – challenging the approach taken by the ILC that the DPs as a whole should apply to both international and non-international armed conflicts. France also challenged DP13’s customary status, and the fact that the international law applicable to non-international armed conflicts did not have any provisions equivalent to those in articles 35 and 55 of API.
Israel rejected the assertion that IHL confers general protection to the natural environment, instead suggesting that elements of it are protected, depending on the applicable rule, and that this should inform the reading of 13(1), 13(2) and 13(3). They also rejected the use of the term “respected and protected”, as it has specific usage under IHL, as well as the relevance of the commentary’s reference to the International Court of Justice’s (ICJ) advisory opinion on the legality of the threat or use of nuclear weapons.
While the US acknowledged that several general rules of warfare “may have the incidental effect of protecting the natural environment”, it submitted extensive comments challenging DP13 and proposing new and vaguer formulations of the principle and of its commentary. The US also reiterated its view that the triple damage threshold was too “broad and ambiguous” and not part of customary law. It also objected to the suggestion that other bodies of international law apply concurrently with IHL.
Colombia felt that 13(2) and 13(3) contradicted one another, with the former phrased as a recommendation and the latter as a prohibition. They also felt that the unpredictable and uncontrolled nature of conflicts made this a difficult principle to abide by. For the Czech Republic, it was the selective nature of the ILC’s approach that was problematic – why had these rules been chosen and not others, such as that limiting particular methods and means of warfare? They feared that 13(2) would be difficult to implement as it was based on a criticised IHL provision of “unclear scope of implementation”. Commenting on 13(3), Japan suggested the addition of a sentence defining “military objectives”, even though the relevant API article was referred to in the commentary.
Switzerland wished to see more discussion on the relationship between IHL and environmental law, for 13(2) to note that “the natural environment, consisting of its various parts, enjoys the general protection afforded to civilian objects under IHL”, and for there be an explicit reference to the customary provision on methods and means of warfare. The UK objected to the “selective” way that DP13’s commentary had referred to the ICJ’s advisory opinion on the legality of the threat or use of nuclear weapons, with respect to the role of environmental law.
El Salvador felt that the principle’s purpose would be lost unless it was made explicit that only conventional weapons could be used against military objectives in a natural environment. Germany noted that DP13 and DP16 implied an intrinsic value of the natural environment in and of itself. However, they observed that the anthropogenic nature of Article 55(2) of API meant that this prohibition could not be based on it. Instead it was Article 35(3) of API that reflects this notion, without prejudice to nature’s intrinsic value being recognised in regimes other than IHL.
Ireland were concerned that the commentary to DP13(2) did not demonstrate that the obligation was applicable in non-international armed conflicts, requesting further clarification in the commentary. They also requested that the ILC “explain how the “widespread, long-term and severe” threshold is to be interpreted and applied, and particularly whether relevant scientific knowledge and/or areas of international law other than IHL are relevant in this respect.” The Netherlands thought DP13 relevant to all temporal phases of conflicts. Like Ireland, they also urged the ILC to “interpret the standard of ‘widespread, long-term and severe’ in light of the most recent academic discourse with regard to the different functions of ecosystems, taking into account recent case law.” This included the ICJ’s Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) case. They also supported DP13’s application to non-international armed conflicts but hoped to see more argumentation to justify this.
Falling short of requesting that the triple cumulative threshold be defined, Spain instead proposed that the disjunctive or be used, in line with the text of the ENMOD Convention. They also wished to see that notion that the environment is of an inherently civilian nature reflected in the draft principle itself. The Nordics welcomed the confirmation in DP13’s commentary that rules of IEL and human rights law remain relevant during armed conflicts.
As with DP10 and 11 above, many states merged their comments on DP14 and 15, with a number objecting that DP15 duplicated DP14. Many also argued that the “principles of humanity” and “military necessity” are the higher order balancing concepts that guide the implementation of the IHL principles of distinction, proportionality and precautions in attack.
Canada suggested that DP14’s shall be replaced with should to better reflect the current state of international law, and that DP15 did not add anything significant that was not already addressed by DP14 and should be deleted. The Czech Republic found DP14 too general, and repetitive of DP13. They wished to see military necessity removed from the list, and noted the absence of methods and means of warfare. They concluded by proposing DP15 be merged with DP14. France also objected to the status of military necessity, suggesting it be cut from DP14 and replaced by the principle of precaution in DP15. They thought the term “environmental considerations” potentially confusing because it is not a defined concept in IHL, and questioned the appropriateness of DP15 and the “rewriting of the exhaustive and complex provisions of IHL concerning the principles of proportionality and precaution.”
Israel felt the words “with a view to its protection” changed the balance between military necessity and humanitarian considerations by elevating the latter, and should be deleted, especially because the term shall suggested that they reflect existing law, which in their view they did not. They reiterated their view that the environment per se is not a civilian object, although parts of it are, and that it does not consider all damage to the environment as collateral damage, instead taking an anthropocentric approach to such calculations. They also called for DP15 to be deleted as it disputes the ICJ’s advisory opinion on nuclear weapons. Spain were also among those which thought DP15 largely redundant and could be deleted.
Discussing DP14’s aim of environmental protection, the US argued that IHL “does not “apply” to the natural environment in the same way that the law ordinarily is understood to “apply” to individuals or parties to a conflict”. They also gave the example of a commander forced to choose between engaging enemy forces in a remote wildlife refuge, or in an area populated with civilians, where in their view, this principle might favour engagement in the latter, putting civilians at risk. Proposing alternative language, they also challenged the ICRC’s interpretation of the concept of military necessity, and made numerous objections to the examination of IHL rules in the commentary. Taking a similar view to Israel over DP15, they also suggested it be merged with DP14. Japan suggested likewise – that both be rephrased and integrated.
Germany requested clarification over a reference to the “potential” effects of an attack in proportionality assessments in the commentary, and, while not opposed to DP15, suggested DP14 and 15 be merged. Ireland welcomed DP14’s affirmation of the application of IHL to the natural environment but wished to see more explanation of the term “a view to its protection” and whether the phrase represented the progressive development of the law. They also suggested that the proper application of DP14 might obviate the need for DP15 but supported its retention as it expressly confirmed the need to take environmental considerations into account.
Switzerland proposed that, in addressing the application of IHL to the environment, DP14 would be better as an introduction to Part III of the principles, or at least before DP13. They also sought to clarify that the concept of military necessity does give states carte blanche to derogate from their obligations under IHL. They too suggested that DP15 be deleted or merged because the principle of precaution is one of the relevant rules of IHL. The UK revisited its position on the ICJ advisory opinion in DP13 to propose that the commentary to DP15 be adjusted to reflect that, while states should take environmental considerations into account, they cannot deprive states of their right to self-defence.
Colombia meanwhile wished to see more clarification over DP14’s scope of application – namely whether the principles and rules also applied to non-state actors in “asymmetrical scenarios”. El Salvador proposed the inclusion of a prohibition on acts that weaponised ecosystems for military advantage, such as burning forests.
DP16 Prohibition of reprisals16
The prohibition of reprisals against the environment, or civilians, is another area of law rendered contentious by the nuclear weapons states, and justified by the need to be free to take coercive measures. In the context of the DPs, two issues are at play, has this prohibition reached customary status, and can it also be applied to non-international armed conflicts.
Germany supported the inclusion of DP16 and its applicability to non-international armed conflicts, even in the absence of treaty law, however it did seek clarification as to whether this amounted to codification or progressive development. Ireland felt satisfied that it had been explained as progressive development and supported the ILC in its decision to do so. Switzerland also welcomed DP16’s explicit recognition of the prohibition of reprisals against the natural environment, and in both international and non-international armed conflicts, reflecting not only Article 55(2) of API, but also wider prohibitions against civilian objects.
However, Canada recommended that the commentary make clear that the prohibition is a treaty-based obligation that is only applicable during international armed conflicts. For France, they did not recognise any explicit prohibition in relation to non-international armed conflicts. Moreover, France noted its reservation at ratification of API that Article 51(8) would “not hinder the use, in accordance with international law, of the means it deems indispensable to protect its civilian population from grave, obvious and deliberate violations of the Geneva Conventions and the Protocol by the enemy”. Israel, which has not ratified API, also objected to its claimed customary status and felt that the ILC should make clear that it represented progressive development.
The UK also objected to any suggestion of customary status, citing its own reservation to API articles 35(3) and 55, as well as articles 51-57, and the necessity of reprisals using nuclear weapons to prevent further violations of IHL. The US also rejected the customary status of the principle, proposing that the term “in accordance with the State’s legal obligations” be added to the principle to confirm this.
DP17 Protected zones17
This principle is closely linked with DP4, which provides for the designation addressed by DP17. There is precedent for this approach in IHL, with Article 60 of API providing for the designation of demilitarised zones, though these would typically be for humanitarian purposes, rather than environmental, or cultural ones. Nevertheless, if it is accepted that the principle of humanity now encompasses environmental considerations, as it is the case for some regarding the Martens Clause this perhaps provides for an extension of scope. Needless to say, as ecological hotspots and critical ecosystems rarely have the luxury of mobility, ensuring their protection during conflict is vital. While no states objected to the principle per se, for many it appeared difficult for them to move beyond the IHL concept of demilitarised zones.
This was the case for Belgium, which wished to see all the conditions necessary for an Article 60 demilitarised zone to retain its protected status listed in the commentary, rather than its current wording, which is limited to “if a party to an armed conflict uses a protected area for specified military purposes, the protected status shall be revoked”. Canada once again challenged it on the grounds that it did not reflect the current state of international law, suggesting that its formulation was too broad, arguing that as worded it implied “that a whole area may become a target if it contains a military objective”.
Like Belgium, the Czech Republic noted that the IHL rules for demilitarised zones are much stricter than those proposed for DP17’s protected zones: A protected zone would be “protected against any attack only as long as it does not contain a military objective”, but “a demilitarized zone must not be used for military purposes, which means that no part of its natural environment can become a military objective.”
Israel suggested the ILC look to CCW Protocol III Article 2(4) for inspiration, and change the emphasis in the principle from being “protected against attack” to “shall not be made the object of attack”, as long as it does not contain a military objective “nor is itself a military objective”. A reluctant Japan felt that more discussion was needed on the balance between the protection of the environment and practical military operations, and wished to see qualifying language on the presence of military objectives, and their definition in the text of the principle. The Netherlands invited the ILC to clarify how DP17 relates to areas that are already protected under multilateral environmental treaties.
Switzerland was enthusiastic about the idea but invited the ILC to conduct a more in-depth comparative analysis of how IHL derived zones could protect the environment. They also invited consideration of the grounds for termination of such an agreement, as with others, looking to Article 60 as a guide. The US suggested rewording the principle “revising contain to constitute and using the formulation made the object of attack rather than attack because even if a location does not contain a military objective, it might be affected by an attack against a military objective nearby.”
Colombia again encouraged the Commission to consider the context and nature of armed conflicts, reiterating the need to consider what type of state or non-state actors such agreements could be made with or between. Cyprus had already offered its support for the approach on DP4, as had Germany. Portugal didn’t think DP17 went far enough, and was concerned that should an environmentally or culturally important site be designated by means other than an agreement between parties to the conflict, it would no longer be protected, even if it wasn’t a military objective. In this respect they were unconvinced that it afforded greater protection than that provided by DP13.
DP18 Prohibition of pillage18
The concept of pillage – the theft of public or private property during conflict or occupation – is widely recognised. So too are the environmental, social and security problems associated with the illegal exploitation of natural resources in conflict-affected areas, most obviously high-value resources such as gemstones. DP18 seeks to clarify that the prohibition of pillage encompasses natural resources, reflecting amongst other things, recent case law from the ICJ’s Armed activities… case.
Cyprus felt the prohibition of pillage of natural resources to be very important, especially in situations of belligerent occupation. They wished to point out its absolute prohibition in occupied areas, and the serious nature of violations under IHL and other legal regimes. They agreed that there should be no distinction between public and private property, and highlighted the environmental risks that resource exploitation operations can create. Switzerland welcomed its inclusion as a fundamental prohibition, though noted that the definition seemed to imply that appropriation must be for private or personal use.
The Czech Republic suggested that IHL limits the protection from pillage to property, so DP18 abandoned the general protection of the environment – a public good – to address natural resources – primarily as private property. They felt this illustrated the problem with not providing a definition of the “natural environment” in the draft. Israel argued that pillage was classically a more specific concept: the “unlawful appropriation of property by individuals for private use during an armed conflict”. They also contested the use of the terms “plundering” and “looting” in the commentary, as in their view they had different meanings than pillage.
Germany also had its doubts, suggesting that the commentary clarify that “pillage only applies to natural resources that are subject to ownership and constitute property”, unless DP18’s intention was to progressively develop the law, in which case it should be rephrased to reflect this. However, the US thought the commentary was clear in stating “that only natural resources constituting property would be the subject of this prohibition”. They also suggested changing the definition in the commentary to: “Pillage is a broad term that applies to any appropriation of movable property in armed conflict for private or personal use, and that pillage violates the law of armed conflict.”
DP19 Environmental modification techniques19
DP19 is based on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), which entered into force in 1978. A product of the Cold War era, the environmental destruction of the wars in SE Asia and a sense of scientific optimism around the future technologies of destruction, ENMOD has never truly reached its potential. With 78 parties, 48 signatories, and a largely moribund review process, although it has recently garnered fresh attention as a potential tool to address geoengineering disputes. As a result, a key issue for state respondents was whether DP19 reflects customary law.
Colombia admitted that it was not a party to ENMOD but invited the ILC to provide comments about which environmental modification techniques DP19 refers to. Japan thought it important that the term environmental modification techniques has the same meaning as in ENMOD and proposed clarifying language to that effect. The UK was also troubled by definitions, wanting it clarified that ENMOD addresses the use of the environment as a weapon, and not the use of a weapon on the environment, pointing to the “considerable effects” that nuclear weapons may have on the environment. The US recommended that DP19 refer to the singular state, rather than states, as obligations varied. They also requested discussion of the damage threshold of widespread, or long term, or severe in the commentary.
Meanwhile, France suggested that DP19 be deleted, they did not believe it, or ENMOD, to reflect customary law, highlighting the lack of universal ratification of the convention. Israel were of a similar view, and also challenged the reference to the ICRC’s customary law rule 45, which the ILC suggested had some overlap with the aims of DP19.
IV – PRINCIPLES APPLICABLE IN SITUATIONS OF OCCUPATION
The DPs addressing occupation represent an important effort to bring the field of occupation law into the 21st Century. Whether it’s Ukraine, or Palestine, environmental issues are common in such settings, and many of these can have serious implications for the enjoyment of fundamental rights. It could be argued that this is an area of progressive development, certainly as far as occupation law is concerned, although the suggested developments could reasonably be viewed as bringing the law up to date with basic environmental and human rights norms. In this respect, the approach taken towards the occupation principles is more akin to the evolutionary interpretation of existing law, which is why these principles are worded in a binding fashion.
A few states commented on the DPs in this section as a whole. For Canada, the DPs are a step too far, being “more expansive than is required by the law of occupation”, leading to the suggestion that they be rephrased or removed. The Czech Republic also queried their legal basis, given that the law of occupation “contains no explicit reference to the environment”. On the other hand, Germany welcomed them specifically because there is currently no explicit reference. France encouraged the Commission to clarify the use of the term “Occupying Power” across all three principles, which it argued could not be applied where the territorial state has consented to the presence and actions of armed forces.
The Nordics felt that the DPs needed principles addressing occupation and that the depth and detail of the commentaries would be useful for those who came to apply them. El Salvador wished to see definitions of “belligerent occupation” and “occupation” to aid with the interpretation of the text. However, regardless of these, observed that “the protection of the environment is an imperative that must be maintained and in the various temporal phases of conflict, since it is part of the substantive content of human rights.” Switzerland, on the other hand, cautioned against a detailed definition of occupation in the introduction to Part IV of the principles, unless it ensured that the commentary faithfully captured the wording of all relevant case law and treaties.
DP20 General obligations of an Occupying Power20
Turning to DP20, Cyprus thought it imperative that attention be focused on the environmental determinants of health and wellbeing in occupied areas. Lebanon felt DP20 of particular value because some of the environmental impacts of occupations may only become visible after they conclude. In that respect, they wished to see additional provisions on the post-occupation responsibilities of occupying forces. Spain thought DP20 too vague, particularly in paragraph two. They suggested a need for further clarification and for terms such as likely and significant to be reconsidered. Switzerland wished to see clarification on the use of the term “protected persons”, and how the interests of the local population are to be considered, points also applicable to DP21. They also invited more discussion on the role of the Occupying Power as administrator and usufructuary in the commentary to DP20.
Discussing DP20(2), Germany queried how applicable the ILC’s Draft Articles on Transboundary Harm were in this context, whether the prevention of harm related only to the activities of the occupier, or all activities in the territory, and the customary status of the paragraph, proposing should, rather than shall. They suggested that the term “is likely to prejudice the health and well-being of the population of the occupied territory” created an unnecessary, cumulative threshold, and that mentioning “health and the well-being of the population” while omitting other human rights issues “raised selection issues”. On DP20(3) they requested that “respect the law and institutions” be replaced with “respect the laws in force in the country, unless absolutely prevented, and should let the institutions continue to function” to fully reflect the wording of Article 43 of the Hague Regulations. Ireland suggested that the Commission further consider DP20(2) and explain how human rights law and any other applicable law combines with Article 55(1) of API.
Israel provided extensive comments on the text of DP20, and its commentary. On DP20(1) they again took issue with the term “respect and protect” and its specific meaning under IHL, they also felt that the paragraph should be subject to the requirements of the applicable internal law. On DP20(2) they objected to perceived efforts to conflate Article 55 API and international human rights law with the law of belligerent occupation. And on DP20(3), the reiterated their Sixth Committee observation that this principle does not reflect customary law and that it should not deal with “institutions”, which are not mentioned in Article 43 of the Hague Regulations.
The US also argued that DP20 did not reflect customary law, suggesting all three paragraphs be changed from shall to should as a result. They made text suggestions for each paragraph of DP20, such as this for a revised DP20(1): “The environment of the occupied territory shall receive respect and protection in accordance with applicable international law and environmental considerations shall be taken into account in the administration of such territory as necessary to comply with applicable international law.”
DP21 Sustainable use of natural resources21
The Hague Regulations established the principle that, while occupying powers can utilise the resources of an occupied territory, their freedom to do so is not unlimited. Article 55 of the Hague Regulations regards an occupier “only as administrator and usufructuary” of immovable public property in the occupied territory. DP21 seeks to update this late 19th Century concept by introducing the environmental principle of sustainability.
Cyprus suggested that a statement be included that an occupier’s administration of natural resources is without prejudice to the permanent sovereignty of a state over its natural resources. Lebanon suggested that DP21 contain a reference to integrating the law of occupation with other fields of law, and in particular the right to self-determination, as it relates to the use and exploitation of natural resources. Germany invited further clarification as to how the concept of sustainability could be applied to moveable public property, which can be confiscated under IHL, as opposed to administered under usufruct. A point relevant to both to DP18 on pillage and DP21.
As with others, the US suggested should instead of shall but importantly they also urged the Commission to align its language with that of Article 4 of the Fourth Geneva Convention, which specifies that the protections afforded by the law of occupation only apply to those who are occupied, and not, for example, to settlers who may be moved onto a territory for the purposes of colonisation. Israel objected to the term “sustainable use” on the grounds that it was not a recognised legal term in the context of the law of occupation and the principle of usufructuary. Moreover, they argued that “changing the basic legal terminology in this field creates an undesirable inaccuracy”.
DP22 Due diligence22
DP22 is informed by a key IEL principle – that of state responsibility for the prevention of transboundary environmental harm, which was established by the Trail Smelter arbitration. Few states commented on DP22, beyond their general comments on the occupation principles. Switzerland suggested that the Commission could also clarify the obligation of due diligence in situations other than of occupation. The US sought the obligation to be relaxed, arguing, amongst other things that the extent to which an Occupying Power could assume an affirmative obligation like this would depend on the nature and characteristics of the occupation itself.
V – PRINCIPLES APPLICABLE AFTER ARMED CONFLICT
DP23 Peace processes23
There have been increasing efforts to ensure that environmental measures are included in peace agreements in recent decades. However, only Colombia shared its views on DP23, indeed it shared its experience based on its 2016 peace agreement, and the significant environmental legacy of its 60-year armed conflict. They highlighted how former fighters are encouraged to admit their acts in full and to propose individual or collective plans for reparation and restoration activities. Proposals have included environmental protection in nature reserves, implementing environmental recovery programmes in mined or coca growing areas, and implementing water and irrigation projects.
DP24 Sharing and granting access to information24
Militaries and international organisations can gather and hold data vital for facilitating remediation projects, and for victim assistance. This may be on the type or quantity of contaminants released by combat activities, or environmental data gathered by day to day monitoring, for example for air quality. DP24 is informed by the procedural IEL norm on access to environmental information, particularly that which may impact the enjoyment of human rights.
Belgium thought it incorrect that DP24(2) mentioned reasons of national defence or security in relation to an international organisation, even though this is noted in the commentary. The Czech Republic did not feel that a generally binding rule on access to information in such contexts could be inferred from international law, and that it should be rewritten as a recommendation. They also thought the scope should be expanded to include non-state armed groups. France was also sceptical.
The Netherlands and Germany also doubted DP24’s customary status, with the latter understanding the principle to be a restatement of states’ existing obligations, rather than codification of a new obligation. Ireland’s take was similar and suggested that it be clarified in the commentary. The US was concerned that DP24(2) imposed a binding obligation on states. They also argued that the word vital set a very high bar, obliging states to share what it felt may be “very sensitive or even damaging information” that still fell short of this standard.
Lebanon thought it could be improved by specifying the types of information to which it applies. Spain suggested it would be clearer if it explicitly referred to granting access to information for individuals. Portugal thought it would strengthened with the inclusion of “restoring and remedial measures”. Switzerland suggested that the Commission describe in more detail the role of non-state actors in providing information, also highlighting that environmental challenges are transboundary in nature and can only be addressed through cooperation, including information sharing.
DP25 Post-armed conflict environmental assessments and remedial measures25
DP25 is another principle that is not based on a legal obligation but instead reflects the practice of international organisations like UNEP and other actors. Only Spain commented on it, to critique its limitations. They felt that it set out “normative constraints that made it less exacting than IEL in this area”. They also reflected on its exclusion of assessments before or during conflicts, and on the assessment not being undertaken with a view to ensuring compensatory remediation.
DP26 Relief and assistance26
DP26 cautiously builds on the precedents set by bodies such as the UN Compensation Commission – established after the 1991 Gulf War, and the principles of victim assistance established by disarmament law. The ILC’s approach is somewhat limited, with states merely encouraged, and at present the principle is only applicable after conflict, rather than during it, or in situations of occupation.
For France, even this modest start was too much, challenging the customary status of the principle. They also found the term encourage to be “ambiguous”. The Czech Republic asked that the use of the term encouraged be explained, and thought it a shortcoming that it only targeted states, unlike the related DPs 24 and 25. Spain thought the term encouraged evoked “ultra-soft law” and that the content of the principle was confused. They argued that it mixed questions around repairing damage with questions around compensation, which brought to mind issues of responsibility for internationally wrongful acts. Yet it also addressed access to reparations for damage resulting from acts not prohibited under international law.
Switzerland once again invited further reflection. In this instance on the different obligations and modalities of relief or assistance towards victims or the environment under the jurisdiction or control of a state. They were also interested in obligations and modalities when the source of the damage is identified, and where responsibility is attributed to a third state. Finally, they also invited an examination of disarmament law obligations governing international cooperation and assistance.
DP27 Remnants of war27
DP27 is based firmly on the clearance norms established by disarmament law, including the Mine Ban Treaty, the Convention on Cluster Munitions and CCW Protocol V. Where it differs is that it also addresses toxic remnants of war, alongside explosive or hazardous remnants. This echoes earlier, broader framings around the “material” remnants of war, helps address the threats posed by conflict pollution, and reflects the fact that, broadly speaking, many of the constituents of conventional weapons, such as energetic materials and heavy metals, are toxic to some extent.
As a number of the states that submitted written comments do not consider themselves bound by these norms, several questioned their normative status, some also queried the ILC’s formulation of “toxic and hazardous” remnants of war. The Czech Republic suggested that the principle was based on CCW Protocol V but questioned whether its rules are of a customary nature. France was of a similar view, and suggested that the principle’s use of the term “toxic and hazardous” rather than Protocol V’s “explosive remnants of war” made this even more problematic. Israel agreed, saying it did not recognise the formulation, which conflated IHL and IEL. The US suggested that DP27(1) and DP27(2) should be restated as should rather than shall as they did not reflect existing obligations. As the ILC state in DP27(3) and in the commentary, they noted that “States may have different obligations with respect to remnants of war depending on the type of remnant, when they came into existence, where they are located, and what treaties States have ratified.”
The Netherlands were also cautious about whether the obligation had reached customary status, but they also saw merit in noting developments in IEL with respect to polluter pays and due diligence, which may signpost obligations that could possibly be considered as customary. A critical Spain suggested that the content of the provision was “close to a blank rule” as it failed to deal with the issue of responsibility or reparation for victims, suggesting that it be improved.
The Nordics felt it was a particularly difficult area to regulate but thought the Commission had got the right balance between not undermining existing obligations, and leaving room for progressive development. They did however suggest that the conjunctive and in “toxic and hazardous” be replaced by a disjunctive or. Switzerland welcomed the fact that DP27 went beyond explosive remnants only but felt that it should better reflect the existing obligations attached to them under international law. They also suggested that clearance can, and should, take place at other stages of a conflict, and that the obligation should be directed towards both states and other parties to a conflict. They wished to see more clarity on the meaning of “seek to remove or render harmless” and invited the Commission to provide a more detailed description of the existing international commitments for how depleted uranium should be handled – which it viewed as a hazardous, rather than toxic, remnant of war. The UK also queried the obligation to “seek to” and invited clarification on the standard required to fulfil this.
Germany, perhaps mindful of the legacy of sea-dumped munitions in the Baltic, suggested that DP27(1) could be read as entailing an obligation to act in any case where remnants are identified, including in the territorial sea, or beyond, where warships and state-owned vessels were concerned. They suggested including the test of an environmental impact assessment in DP27(1), with the obligation only arising where clearance is found to be “necessary and appropriate” to minimise environmental harm. On the other hand, Cyprus agreed with the inclusion of the reference to areas under their “jurisdiction or control” as it clarified states’ extra-territorial responsibility for environmental protection.
DP28 Remnants of war at sea28
Whether polluting wrecks or sea dumped munitions, remnants of war at sea remain a challenging area to address. Their monitoring and management can be expensive and determining the responsibility for either can be politically and legally complex. There is precedent for international cooperation but as yet no clear obligations for clearance, hence DP28’s modest suggestion of cooperation. This is perhaps why few states made specific written comments on DP28: The Nordics felt that it generally complemented DP27, while Germany welcomed its intention.
4. Conclusion
The ILC’s PERAC process was launched on the basis of need. Armed conflicts and military activities generate harm and sustain the conditions where harmful activities can flourish. Environmental damage and degradation not only impact ecosystems, they also undermine the fundamental rights of affected communities, as well as their resilience to climate change. The legal tools to help address this would be available, if we could codify and, in places, progressively develop them.
Nearly a decade later, and with the second reading fast approaching, as well as the reception of the final PERAC principles and commentaries at the UN General Assembly, the next six months will be critical for the ILC’s project. While the persistent objections of some states can perhaps be viewed as inevitable, it’s clear that state support for the principles as they stand is not universal. While they will doubtless be adjusted, and hopefully strengthened, by the Special Rapporteur and Commission during second reading, it is clear that, as we approach implementation, we are increasingly moving from the legal to the political.
Those states that do support a strong outcome for the PERAC process and for its aims need to step up and engage, advocacy will be needed to get the PERAC principles welcomed at the UN General Assembly this autumn, and supporting their implementation will demand a long-term commitment. This is the most important step forward in the PERAC legal framework since the 1970s, and we have to start acting like it.
Doug Weir is CEOBS’ Research and Policy Director. With thanks to Dr Stavros Pantazopoulos for the review and sense check.
- The present draft principles apply to the protection of the environment before, during or after an armed conflict.
- The present draft principles are aimed at enhancing the protection of the environment in relation to armed conflict, including through preventive measures for minimizing damage to the environment during armed conflict and through remedial measures.
- 1. States shall, pursuant to their obligations under international law, take effective legislative, administrative, judicial and other measures to enhance the protection of the environment in relation to armed conflict.
2. In addition, States should take further measures, as appropriate, to enhance the protection of the environment in relation to armed conflict. - States should designate, by agreement or otherwise, areas of major environmental and cultural importance as protected zones.
- 1. States should take appropriate measures, in the event of an armed conflict, to protect the environment of the territories that indigenous peoples inhabit.
2. After an armed conflict that has adversely affected the environment of the territories that indigenous peoples inhabit, States should undertake effective consultations and cooperation with the indigenous peoples concerned, through appropriate procedures and in particular through their own representative institutions, for the purpose of taking remedial measures. - States and international organizations should, as appropriate, include provisions on environmental protection in agreements concerning the presence of military forces in relation to armed conflict. Such provisions may include preventive measures, impact assessments, restoration and clean-up measures.
- States and international organizations involved in peace operations in relation to armed conflict shall consider the impact of such operations on the environment and take appropriate measures to prevent, mitigate and remediate the negative environmental consequences thereof.
- States, international organizations and other relevant actors should take appropriate measures to prevent and mitigate environmental degradation in areas where persons displaced by armed conflict are located, while providing relief and assistance for such persons and local communities.
- 1. An internationally wrongful act of a State, in relation to an armed conflict, that causes damage to the environment entails the international responsibility of that State, which is under an obligation to make full reparation for such damage, including damage to the environment in and of itself.
2. The present draft principles are without prejudice to the rules on the responsibility of States for internationally wrongful acts. - States should take appropriate legislative and other measures aimed at ensuring that corporations and other business enterprises operating in or from their territories exercise due diligence with respect to the protection of the environment, including in relation to human health, when acting in an area of armed conflict or in a post-armed conflict situation. Such measures include those aimed at ensuring that natural resources are purchased or obtained in an environmentally sustainable manner.
- States should take appropriate legislative and other measures aimed at ensuring that corporations and other business enterprises operating in or from their territories can be held liable for harm caused by them to the environment, including in relation to human health, in an area of armed conflict or in a post-armed conflict situation. Such measures should, as appropriate, include those aimed at ensuring that a corporation or other business enterprise can be held liable to the extent that such harm is caused by its subsidiary acting under its de facto control. To this end, as appropriate, States should provide adequate and effective procedures and remedies, in particular for the victims of such harm.
- 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, from the principles of humanity and from the dictates of public conscience.
- 1. The natural environment shall be respected and protected in accordance with applicable international law and, in particular, the law of armed conflict.
2. Care shall be taken to protect the natural environment against widespread, long-term and severe damage.
3. No part of the natural environment may be attacked, unless it has become a military objective. - The law of armed conflict, including the principles and rules on distinction, proportionality, military necessity and precautions in attack, shall be applied to the natural environment, with a view to its protection.
- Environmental considerations shall be taken into account when applying the principle of proportionality and the rules on military necessity.
- Attacks against the natural environment by way of reprisals are prohibited.
- An area of major environmental and cultural importance designated by agreement as a protected zone shall be protected against any attack, as long as it does not contain a military objective.
- Pillage of natural resources is prohibited.
- In accordance with their international obligations, States shall not engage in 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 any other State.
- 1. An Occupying Power shall respect and protect the environment of the occupied territory in accordance with applicable international law and take environmental considerations into account in the administration of such territory.
2. An Occupying Power shall take appropriate measures to prevent significant harm to the environment of the occupied territory that is likely to prejudice the health and well-being of the population of the occupied territory.
3. An Occupying Power shall respect the law and institutions of the occupied territory concerning the protection of the environment and may only introduce changes within the limits provided by the law of armed conflict. - To the extent that an Occupying Power is permitted to administer and use the natural resources in an occupied territory, for the benefit of the population of the occupied territory and for other lawful purposes under the law of armed conflict, it shall do so in a way that ensures their sustainable use and minimizes environmental harm.
- An Occupying Power shall exercise due diligence to ensure that activities in the occupied territory do not cause significant harm to the environment of areas beyond the occupied territory.
- 1. Parties to an armed conflict should, as part of the peace process, including where appropriate in peace agreements, address matters relating to the restoration and protection of the environment damaged by the conflict.
2. Relevant international organizations should, where appropriate, play a facilitating role in this regard. - 1. To facilitate remedial measures after an armed conflict, States and relevant international organizations shall share and grant access to relevant information in accordance with their obligations under international law.
2. Nothing in the present draft principle obliges a State or international organization to share or grant access to information vital to its national defence or security. Nevertheless, that State or international organization shall cooperate in good faith with a view to providing as much information as possible under the circumstances. - Cooperation among relevant actors, including international organizations, is encouraged with respect to post-armed conflict environmental assessments and remedial measures.
- When, in relation to an armed conflict, the source of environmental damage is unidentified, or reparation is unavailable, States are encouraged to take appropriate measures so that the damage does not remain unrepaired or uncompensated, and may consider establishing special compensation funds or providing other forms of relief or assistance.
- 1. After an armed conflict, parties to the conflict shall seek to remove or render harmless toxic and hazardous remnants of war under their jurisdiction or control that are causing or risk causing damage to the environment. Such measures shall be taken subject to the applicable rules of international law.
2. The parties shall also endeavour to reach agreement, among themselves and, where appropriate, with other States and with international organizations, on technical and material assistance, including, in appropriate circumstances, the undertaking of joint operations to remove or render harmless such toxic and hazardous remnants of war.
3. Paragraphs 1 and 2 are without prejudice to any rights or obligations under international law to clear, remove, destroy or maintain minefields, mined areas, mines, booby-traps, explosive ordnance and other devices. - States and relevant international organizations should cooperate to ensure that remnants of war at sea do not constitute a danger to the environment.
