States back further progress on conflict and environment in UN legal debate

The context for the debate

The ILC added PERAC to its programme of work in 2013, in part thanks to a recommendation in a 2009 study on the poor state of legal protection for the environment before, during and after conflicts, which was produced by UNEP and the Environmental Law Institute. The study has coincided with renewed interest in the topic, as evidenced by the passage by consensus of this May’s resolution at the UN Environment Assembly (UNEA).

Before this May’s UNEA resolution, the annual debates on the work of the ILC, which take place in the UN General Assembly’s Sixth Committee, provided the only window into where governments stood on PERAC. Our coverage of the debates in 2014 and 2015, and our fairly unscientific ranking system, had shown that some States were clearly more progressive than others. The debates also highlighted core issues, such as the extent to which States were willing to countenance the consideration of human rights or international environmental law in PERAC.

Dr Jacobsson has now published three reports on PERAC, which consider PERAC before, during and after armed conflicts. From these, draft principles have been proposed and been subject to review within the ILC’s drafting committee, prior to their consideration by States. This year’s third report looked mainly at post-conflict measures to enhance the protection of the environment and civilians. Unlike the earlier draft principles, many of which related to existing obligations under international humanitarian law (IHL), the latest set were inspired by a much broader palette of norms, State practice and custom; as such it was unclear how they would be received.

The debate

In all, 30 States commented during this year’s debate, some for the first time but the majority had engaged in previous years. The ICRC also submitted its views. Those speaking included: Austria, Croatia, the Czech Republic, El Salvador, Greece, India, Israel, Japan, Lebanon, Malaysia, Mexico, Micronesia, the Netherlands, Norway (on behalf of DK, FI, IS and SE), Peru, Portugal, ROK, Romania, Singapore, Slovenia (not available online), Spain, Thailand, Ukraine, the UK, US and Viet Nam. The Special Rapporteur’s closing remarks are available here.

Given the extensive body of work on PERAC now available from the ILC, there was much that States could speak on. Most stuck to a few core issues or particular principles. What follows is our attempt to summarise these interventions by categorising them into general views on scope and outcome, remarks on 2015’s draft principles, and observations on the latest draft principles.

General views on scope and outcome

There was much praise for the work of the Special Rapporteur but from the outset it was clear that some States are more enthusiastic than others. The Nordics, Romania, Lebanon, Micronesia, Ukraine and El Salvador warmly welcomed the study as a whole, or the new draft principles. Others, such as Japan, India, the US and UK were more cautious. Spain, Mexico and the Czech Republic appeared suspicious of the potential outcome of the ILC’s work. Israel argued that the existing provisions of IHL afforded sufficient protection, and felt that the entire process was of questionable merit; nevertheless they did see fit to comment on several draft principles and questions of scope.

NIACs, IACs and the “natural environment”

Given that the majority of armed conflicts are non-international in nature, and that environmental damage that threatens civilians is commonplace in relation to them, for PERAC to make an effective contribution to its stated aim, its outputs need to be applicable in both non-international and international armed conflicts. This is a legally ticklish area however. El Salvador argued in favour of abandoning any distinction, Malaysia that any outcome should apply to both. Greece was unclear about which draft principles applied to which type of conflict and which type of actor. Japan felt identifying rules and principles applicable to both was difficult. Mexico suggested that the ILC limit its scope to international conflicts. Portugal was keen for the ILC to focus its work on the responsibility of non-state actors, whereas the ROK urged the Commission to examine principles or practice relevant to both. Spain also suggested that the scope of PERAC include both, while Slovenia suggested that some distinction was necessary.

Another persistent issue has been the use of the term “natural environment”. How we define the thing that we are trying to protect matters, particularly if the use of the scientifically dubious term “natural environment” distracts from the task of protecting humans as well. El Salvador observed that the Spanish translation renders the term redundant, adding no additional meaning to the project. Malaysia thought the distinction “self-defeating” considering that these issues encompass human rights, sustainability and cultural heritage. Israel argued that because the draft articles have so far failed to define the term, the scope of the principles is unclear and “open to exploitation”. The ROK sought clarification on whether “environment” or “natural environment” would be used, while the ICRC used “natural environment” throughout their statement.

Damage thresholds, parallel law and civilian harm

The cumulative IHL thresholds for what constitutes unacceptable environmental damage in Additional Protocol 1 have long been a source of criticism; “widespread and long-term and severe” being both unrealistically high and problematically vague. El Salvador proposed that the formulation used in the ENMOD convention be applied, where “and” is replaced by “or”. Meanwhile Greece urged the ILC to provide guidance on the meaning of the terms as part of its project.

As noted above, the willingness – or otherwise – of States to consider elements of human rights and environmental law in PERAC has become a litmus test for whether they are progressive on the topic or not. Once again there were divergent views on the question. El Salvador argued that even in cases of armed conflict, international human rights law continues to be applied and that many of its obligations based on human dignity are closely linked to the environment. Greece proposed that the ILC examine the extent to which the general principles of international environmental law (IEL) remain applicable in times of conflict and how they interact with jus in bello rules; proposing that IEL’s precautionary principle could provide guidance on IHL’s due regard rule. Israel rejected any attempt to merge any environmental law with IHL. Mexico suggested that analysing human rights or environmental law in relation to some of the proposed draft principles would be too ambitious, and that the ILC should restrict itself to analysing the law in force during conflicts.

Micronesia on the other hand felt that the topic was expansive enough to sweep in other disciplines of international law. Portugal also believed that PERAC should be approached in a comprehensive manner so as to include the human rights dimension of environmental damage caused during armed conflicts. Thailand said that relevant environmental treaties could co-exist with IHL, while Ukraine referenced the UNEA resolution as evidence that human rights obligations should be included in the scope of the ILC’s work. The US said it was concerned about the attention being paid to addressing the application of bodies of law other than IHL during armed conflict. The ICRC suggested that greater clarity is needed as to how other bodies of international law may provide complementary protection to the environment, including during armed conflict; although this was hedged with a request to the Commission to ensure its work on PERAC remains in line with the existing rules of IHL.

One issue that we had raised concerns about following the work of the Commission this summer was that some of the revised draft principles risked drifting too far in favour of a narrow focus on protecting the “natural environment”, while neglecting the humanitarian consequences of damage. Lebanon was one of several States to flag this, calling for more focus on the human dimension of the environmental impact of armed conflicts. Micronesia argued that the natural environment cannot be viewed as distinct from the people that inhabit it and rely on it for sustenance, shelter, cultural practices, sustainable development and other major interests.

Ukraine was of the view that environmental degradation during and after armed conflicts has a direct impact on human health, lives and livelihoods, and that these issues must be discussed together with the protection of the “natural environment”. The Nordics suggested that the environmental consequences of conflict were severe, wide-reaching and long-lasting both for nature itself and the civilian populations who depend on natural resources for their survival.

States’ views on 2015’s draft principles

The draft principles that were provisionally adopted (and renumbered) by the ILC this summer following last year’s Sixth Committee debate, included one general preventative measure – draft principle 5 on the designation of protected areas – and five draft principles applicable during armed conflict, numbered 9-13. Most States had commented on them in 2015’s debate but a number raised issues during this year’s debate as well.

The Czech Republic said that it in general it had no problem with many of the principles from 2015 and 2016, but wished to reserve judgement until it had seen the full set of principles in context. Greece suggested that principles 10 and 9 be reordered due to overlapping elements. Malaysia felt that producing effective guidelines required that linkages be drawn between the IHL principles of distinction, necessity, proportionality and the prohibition of reprisals, and that the approach taken in principles 10-12 was consistent with the aim that environmentally sound measures be taken in the planning of military operations.

Peru thought it relevant that the project consider preventive measures to minimise damage during armed conflicts, as well as designating protected areas of great environmental and cultural importance. Portugal and the ROK also welcomed principles aimed at enhancing protection for the environment through preventative measures before conflicts, and minimising harm during them. Romania thought the draft principles adopted so far by the Commission accurately reflected the current law in the field. Spain however didn’t think that all the draft principles had been properly analysed, suggesting that any and all environmental obligations needed to be compatible with existing IHL.

In considering the specifics of the first tranche of draft principles, the Czech Republic wondered how draft principle 2 on Purpose could be achieved with a legally non-binding text. Meanwhile Greece felt that preventative measures should also include avoiding harm, not just minimising it. El Salvador saw a contradiction between designating protected areas and then allowing parts of them to be attacked because they had become military objectives, highlighting that certain types of environmental damage were irreversible. Israel objected to any attempt to treat the environment as a civilian object, branding the idea “inaccurate and impractical”. Spain was also troubled by the principle establishing general protection for the environment, and wanted more clarity on when the environment could and couldn’t be attacked.

On draft principle 10, El Salvador wanted clarification on what constituted “environmental considerations” in calculations of proportionality and military necessity. Malaysia felt that due to the contentious nature of the draft principle on reprisals, finalising it would support the progressive development of international law – one of the mandates of the ILC. The UK felt that risked modifying existing IHL, something to which it is opposed.

States’ views on the latest draft principles

The majority of the draft principles published this year (4, 6, 7, 8, 14 – 18) deal with post-conflict measures. As many are based on norms and practice, rather than existing IHL, it was unclear how States would respond to them.

The Netherlands though it important to ensure that the terminology employed in the draft principles corresponded to the normative status intended for the topic, suggesting that the use of “shall” and “should” be more carefully considered. They highlighted draft principles 8, 16 and 18 as particularly problematic, questioning whether they reflect existing obligations under international law. Slovenia wanted the Special Rapporteur to do more to explain her methodology for the new principles, suggesting that it would allow a more focused approach.

Spain thought the principles applicable to the post-conflict phase were much more undetermined and difficult to specify than those proposed during conflict, which were based on IHL. The UK questioned the international legal basis for a number of them. The US claimed that it was still reviewing the new principles but, like the Netherlands, was concerned that some were phrased in mandatory terms, purporting to dictate what States “shall” or “must” do. It felt that such an approach “was not appropriate for a project that is purporting to assert principles” and argued that several went well beyond existing legal requirements of general applicability.

Ukraine meanwhile thought the third report and new principles were a valuable contribution to the ongoing debate over the environmental and civilian impact of armed conflict, and its aftermath, while Micronesia rejected the idea of arbitrary time limits for obligations to tackle the environmental legacy of conflicts.

DRAFT PRINCIPLE 4: calls on States to take effective measures to enhance the protection of the environment, both through implementing applicable law, pursuant to their existing obligations, and any further measures they deem appropriate. Austria suggested deleting “effective” and queried whether the use of “pursuant to” limited the actions of States to the requirements of existing international law.

Lebanon warmly welcomed the inclusion of draft principle 4, suggesting it strengthened preventative measures across the three phases of conflict. The Nordics also stressed its importance, arguing that the faithful implementation of IHL is an important first step in PERAC. Slovenia welcomed anything that encouraged preventative measures that went beyond IHL, while Ukraine felt that it matched the call in the UNEA resolution for more effective implementation of international law protecting the environment.

DRAFT PRINCIPLE 6 on the protection of indigenous peoples triggered a great deal of debate in the Commission during the summer. El Salvador welcomed the draft, highlighting the particular vulnerability of indigenous peoples during conflict. Israel rejected it wholesale, stating that it was beyond the scope of environmental protection and had no place in this context. Malaysia suggested that indigenous communities are particularly affected by, and have a significant role to play in, post-conflict remediation efforts. Mexico didn’t consider any specific regulation necessary, for as part of the civilian population, indigenous peoples would be protected by IHL under the principle of distinction.

Micronesia argued that terrestrial and maritime areas and resources are typically of great importance for indigenous communities, being closely linked to cultural practices, socio-political rankings, traditional identities, and basic sustenance, and that protecting the environment is equivalent to protecting indigenous communities. The Netherlands didn’t think that the fact that indigenous peoples have a special relationship with their land and the living environment sufficient reason to justify a draft principle in the context of PERAC. Romania suggested consideration of a more general principle aimed at the protection of all people, such as farmers, who have a very close connection to the environment of the territories they inhabit. Slovenia noted the principles’ inclusion but wanted to see more reasoning from the ILC. Whereas Viet Nam viewed the matter of little relevance to the context of armed conflicts; suggesting that as the issue of indigenous people is handled differently from State to State this principle might cause more problems than it would resolve.

DRAFT PRINCIPLE 7 focuses on environmental standards in agreements concerning the presence of military forces in relation to armed conflict. Austria felt that the use of “should as appropriate” in the principle was too soft. Micronesia suggested that the principle was a welcome encouragement to States and international organisations to take heed of the environmental footprint of their activities overseas. The ROK thought environmental assessments important in basing agreements and, citing the Pulp Mills case, that the principle reflected recent developments in international environmental law. Romania discussed the agreements its government places on visiting forces and military exercises, however Viet Nam cautioned that more study was needed on state practice, recalling that the principle had caused disagreements in the Commission debate during the summer.

DRAFT PRINCIPLE 8 is aimed at states and international organisations and seeks to minimise the environmental footprint of peace operations. Austria thought that “peace operations” should be legally defined. The Netherlands said that, while such operations may operate in a situation of armed conflict, this was not necessarily always the case, adding that peace operations are normally not a party to an armed conflict. The Nordics thought the idea merited further discussion, whereas the US argued that the principle would create entirely new substantive legal obligations that cannot be found in existing treaties, practice, or case law. As with draft principle 7, Viet Nam again cautioned that more study was needed.

DRAFT PRINCIPLE 14 proposes that parties to armed conflicts should include the restoration and protection of the environment in peace agreements. Austria queried the definition of peace and argued that few formal peace agreements are made these days. They were also concerned that the second part of the principle should not extend the competencies of international organisations. The Nordics welcomed further discussion on the principle. Spain said that as few such agreements include environmental provisions, practice was “scarce or practically non-existent”.

DRAFT PRINCIPLE 15 calls for cooperation among relevant actors on post-conflict assessments and remedial measures. Austria called for harmonisation of terms such as “should” and “encourage” across this and other principles. El Salvador felt the wording too weak and proposed the principle be divided into two, with one part focusing on assessments, the other on remedial measures. Micronesia welcomed the principle of cooperation and suggested that international organisations and non state actors be encouraged to assist in assessments. They also argued that belligerents should have a responsibility to conduct assessments, and a responsibility to adopt and implement remedial measures. Thailand felt that information sharing and international cooperation were crucial for such assessments, meanwhile Ukraine highlighted the fact that pollution problems often get worse if left unaddressed, and that cooperation between all parties and international agencies to assess and remedy damage was therefore vital.

DRAFT PRINCIPLE 16 addresses the toxic and hazardous remnants of wars. The proposed draft principle met with a mixed reception. Austria felt that it was only partly applicable in non-international armed conflicts as non-state actors are unable to enter into formal agreements with states. Portugal suggested that the focus should be on environmental protection. Israel objected to the proposed definition of toxic and hazardous remnants, arguing that it went far beyond the definition used by Protocol V of the Convention on Certain Conventional Weapons (CCW); adding that they couldn’t identify any missing remnants from the existing definition – which covers only explosive remnants of war. The Netherlands objected to the use of “shall”, questioning whether the principle reflected an existing legal obligation of universal application.  They too objected to the scope of “remnants” and suggested that APII and PV of the CCW have yet to achieve customary status. The US argued that the principle expanded the obligations under CCW PV to mark and clear, remove or destroy explosive remnants of war to include toxic or hazardous remnants of war.

However the principle was supported by El Salvador, though they cautioned that mitigating or treating such remnants only after a conflict has ended may be too late to protect the environment. It was also welcomed by Lebanon, and Micronesia, with the latter proposing that eventual definition ensure as comprehensive coverage as possible, and include those remnants no longer under the jurisdiction and control of belligerents but for which they retain responsibility. They also argued for the retention of the clause “remove without delay” that had been removed by the Commission’s drafting committee.

Slovenia too welcomed the principle, arguing that its initial formulation, which focused only on explosive remnants of war, had been too narrow. Ukraine proposed that the principle be amended to highlight that the toxic and hazardous remnants of war not only cause, or pose a risk of causing, damage to the environment, but also threaten human health. Viet Nam thought the principle should be reconstructed so that the belligerent party that introduced the substances harmful to the environment should bear the legal consequences of its actions. This included responsibility for the clearance and destruction of remnants, and responsibility to restore the environment.

DRAFT PRINCIPLE 17 deals with the remnants of war at sea. Austria wanted more clarity on the nature of the commitment it proposes, highlighting that different marine areas are subject to different legal regimes. Greece observed that leaking wrecks of warships are regulated by general international law and UNCLOS and that should be reflected in the text. Lebanon welcomed the principle but said that it favoured the original wording, which also highlighted the risks remnants posed to seafarers and public health. Micronesia also welcomed the principle, observing that belligerents retain ownership of wrecks. Portugal again called for the focus to predominantly be on the environmental rather than humanitarian risks from marine remnants, while Slovenia and Viet Nam welcomed the draft principle.

Finally, DRAFT PRINCIPLE 18 deals with sharing and granting access to information in order to facilitate remedial measures after conflicts. The Netherlands approved of the exemption for national security or defence but argued that in all other cases the current wording suggested that the obligation to share and grant access to information is absolute, not something it viewed as warranted based on the ILC’s third report. Slovenia proposed that the role of non-state actors be examined as they may be in possession of information relevant to environmental response, and that the scope of the principle’s accordance with international obligations be examined further. Ukraine welcomed the principle as being vital to facilitate remediation and harm reduction measures.

The future of the ILC’s work on PERAC

The ILC’s current Special Rapporteur on PERAC, Dr Marie Jacobsson, will stand down at the end of this year, having served two five-year terms on the ILC. During the Commission’s meeting this summer, concerns were expressed that her departure could risk the topic being orphaned. However members nevertheless proposed various subjects that should be addressed if the project continued. During Sixth Committee, the future of the project was raised by a number of States, as was its possible outcome, whether this is in the form of guidelines, draft principles or the stronger draft articles.

In a very brief intervention, Croatia thought it appropriate to assess the possibility of transforming the draft principles into draft articles, to show the importance that the international community attaches to the topic. Greece thought the work so far a solid basis for future work, suggesting that ILC consider environmental protection under occupation. Japan urged the ILC to closely examine the project’s scope in order to focus on areas where existing rules are likely to be identified, so that the final products will be useful to States. Lebanon urged continuation, citing the 2030 Agenda, Paris Agreement and UNEA resolution as examples of why progress was needed; they also suggested that the humanitarian consequences of wartime environmental degradation could be one of the future topics explored by the ILC, together with liability and responsibility, and clarification on the IHL principles of proportionality and precaution when applied in the context of PERAC.

Malaysia suggested that the final output of draft principles would be subject to further consideration at a later date, while acknowledging that several already published would amount to a progressive development of the law. Mexico, in spite of its numerous reservations, called the draft principles a “step forward” and stated its willingness to continue to work with the ILC. Micronesia also looked forward to future work on PERAC, particularly on matters of responsibility, liability and compensation in the context of the principles. The Netherlands expressed a preference for draft principles rather than draft articles, and the Nordics offered their full support to the continued work of the ILC and the next Special Rapporteur in the years to come. Portugal encouraged the ILC to keep and foster consultations with other entities, like the ICRC, UNESCO, UNEP, and others with relevant expertise, as did Slovenia and Thailand. Thailand viewed an outcome of draft principles as being both appropriate and timely, while Slovenia considered the ILC’s approach as being reflective of the progressive development of the law.

Romania said it would follow the topic with great interest in the future reports of the ILC. Spain suggested that the debates in the Commission this summer may be a sign that the PERAC topic lacks maturity. But they also suggested that the question of occupation, the practice of non-state actors, indigenous peoples, the question of responsibility and the applicability of the precautionary principle also demanded study. Ukraine urged continuation of the ILC’s study, whereas the UK remained sceptical about its future, suggesting that, whilst the preparation of non-binding guidelines or principles could be useful, it was unconvinced of the need for new treaty provisions.

Finally the ICRC said that it looked forward to further consultations on the draft principles and commentaries, stressed the importance that it attached to the topic, and reiterated its strong support for its continuation into the ILC’s next quinquennium.

So, what did we learn?

Perhaps the most obvious – and unsurprising – message is that States that have suffered serious environmental damage from conflicts are considerably more enthusiastic about PERAC than those that haven’t. Micronesia, El Salvador, Lebanon and Ukraine all made strong statements, as did Greece, Slovenia and the Nordics. However the range of themes up for discussion meant that some, such as Portugal, Romania and Viet Nam, were strong in some areas, less so in others. Some such as Mexico have become far more sceptical since the last debate in 2015.

The debate on the principles on remnants was interesting. Principle 17 on marine remnants was generally welcomed, or at least not subject to much criticism, but 16 on remnants of war came under attack from Israel, the Netherlands and the US, with each giving similar, and rather questionable, statements relating to the definitions and obligations for explosive remnants under CCW PV. The rights and protection of indigenous peoples continues to be a controversial area, as does the final outcome of the ILC’s project – which may yet be many years off, in spite of the pace that has been set by the Special Rapporteur.

Our concerns over the absence of the humanitarian consequences of wartime environmental damage were echoed by a number of States, either directly or through support for the consideration of human rights based approaches in PERAC, and there seemed to be widespread support for the inclusion of environmental norms. Critically, there were few voices opposed to the continuation of the ILC’s work on PERAC – which alone is a significant victory and a reflection of the growing international interest in finally addressing the topic in a meaningful way.

 

Doug Weir manages the Toxic Remnants of War Project @detoxconflict