Analysis of the latest stage of the International Law Commission’s study on the Protection of the environment in relation to armed conflicts.
The recent debate in the UN General Assembly’s Sixth Committee on the International Law Commission’s (ILC) ongoing study into the Protection of the environment in relation to armed conflicts (PERAC) has once again revealed strongly divergent views on the project. The ILC’s draft principles on environmental protection in situations of occupation received a warmer welcome than had been expected but tensions remain over the approach being taken by the ILC’s Special Rapporteurs. Our annual blog on the debate takes a look at who said what, and looks ahead to the fifth and final report on the topic.
Background and context to the debate
The PERAC study began in 2013 and is seeking to ensure that the legal framework is more reflective of the nature of environmental harm witnessed in contemporary armed conflicts, and that it acknowledges the far greater understanding that we now have of their consequences for ecosystems and civilians. Key to this approach is whether and how human rights and environmental law can help plug the many gaps present in the limited protection afforded by international humanitarian law (IHL), and what measures can be taken before and after conflicts to enhance protection. You can find our coverage of previous Sixth Committee debates on PERAC here: 2014, 2015 and 2016.
The ILC’s Special Rapporteurs have now proposed 21 draft principles across four reports, 18 of which deal with standards applicable before, during and after armed conflicts. A further three were proposed by the new Special Rapporteur Dr Marja Lehto this year, and which deal specifically with situations of occupation, although several of the earlier principles would also apply during this phase, such as the draft principle on remnants of war. While the ILC can eventually propose the stronger draft articles, which can form the basis of new conventions, it has been the view of the Rapporteurs – and the majority of states – that draft principles are more appropriate for the PERAC topic. A fifth and final report and set of principles will be published in 2019, to be followed by the first reading of the principles as a whole, after which states and other stakeholders will have a year to comment before their second reading and adoption in 2021.
In spite of the fact that the PERAC study is the most significant development in the legal protection for the environment from the impact of conflicts since the 1970s, the study’s visibility is relatively limited. This year’s debate saw 38 states provide their views, as well as the ICRC – an increase on previous years. New speakers this year included Azerbaijan, Brazil, China, Colombia and Turkey – and the statements from all speakers are available here: Algeria, Austria, Azerbaijan, Belarus, Brazil, China, Colombia, the Czech Republic, France, Greece, ICRC, Iran, Israel, Japan, Lebanon, Malaysia, Mexico, Micronesia, the Netherlands, New Zealand, Peru, Poland, Portugal, the Republic of Korea, Romania, Russia, Slovakia, South Africa, Sweden (on behalf of Denmark, Finland, Iceland, Norway and Sweden), Switzerland, Turkey, Ukraine, the United Kingdom, United States and Viet Nam.
This year, the ILC has focused on environmental protection in situations of occupation, although it has also published commentaries to its draft principles (DPs) covering the post-conflict phase. The three proposed occupation principles address the general obligations of occupying powers (DP19), the sustainable use of natural resources (DP20), and due diligence (DP21). Ahead of the debate it was anticipated that strong views would be expressed on all three, particularly as they represent a rather radical development in the context of the law of occupation. As it was, only a minority of states raised serious objections, with many more welcoming them, such as New Zealand, Poland and Viet Nam – who hoped to see more work on how obligations varied across different types of occupation. Japan requested that specific terms be brought into alignment with the ILC’s previous work on transboundary aquifers.
Four interventions addressed the question of whether the occupation principles applied only to states, or whether they should also apply to international organisations such as the UN, who may find themselves as de facto occupying powers. The Nordics argued that they should, because many of the responsibilities of an occupying power are also relevant when a territorial area is temporarily administered by an international organisation, suggesting it be elaborated in the commentaries. This view was supported by Iran, but the Netherlands rejected the idea due to a UN mission being unlikely to meet the criterion of a non-consensual presence, and that there was a lack of practice on how the law of occupation could supplement mandates provided by the UN Security Council. Belarus suggested that they may be useful when compiling the mandates for peacekeeping operations, rules on the use of force and Status of Forces Agreements but were unconvinced that the term “occupied territory” was useful in this context.
Points of tension
Potentially more consequential for the PERAC study was the continuing lack of consensus around the extent to which the norms and standards of human rights and environmental law should or could address the gaps in IHL. Belarus, the Czech Republic, France, Israel, Russia, Turkey, the UK and US all expressed caution in this regard, either in general or in the specific context of occupation law, with many highlighting that IHL must remain lex specialis, or that there should be no modification to existing IHL. However 15 other states acknowledged or welcomed the utilisation of other fields of law in the context of the PERAC study. This tension was also visible in a relatively non-committal statement from the ICRC, whose brief intervention recalled “…the importance of ensuring that the Commission’s work on this topic remains in line with existing rules of IHL.” The ICRC’s sensitivity may in part be due to the imminent publication of its revised environmental guidelines for military manuals, but also in its role as custodian of IHL.
Questions were also raised over the use of particular terms in the draft principles, foremost of which remains whether they will use the term “environment” or “natural environment”, the latter of which is utilised by existing IHL and yet is seen as too narrow a term for many. A decision is expected next year on which term will be used. Some states also requested clarification on the terms “environmental considerations” and “significant harm” which are used in DP11/DP19 and DP19/DP21 respectively. Defining either isn’t quite as straightforward as first appears.
A third cross-cutting question that was addressed by many states was whether the draft principles would apply to both international and non-international armed conflicts, or whether only some would apply in the latter. Belarus, China, Iran and Turkey specifically rejected their application to non-international armed conflicts. Brazil argued that the considerable differences between the two types of conflict should be taken into account, while the Netherlands supported the Special Rapporteur’s suggestion to consider issues relating specifically to non-international armed conflicts. Mexico however argued that the development of customary international law has tended to progressively reduce the importance of the distinction between international and non-international armed conflicts, a view that was shared by South Africa. Portugal, the Republic of Korea and Romania also encouraged the Special Rapporteur to study their applicability, something that the final report will address.
Responses to the draft principles on occupation
Draft principle 19 – General obligations of an Occupying Power
DP19, which addresses the general obligations of occupying powers, elicited considerable interest. The draft principle requires that occupying powers respect and protect the environment in accordance with applicable international law, take appropriate measures to prevent harm likely to prejudice the health of the population, and respect the relevant laws and institutions in the occupied territory, only introducing changes within the limits allowed by IHL. DP19’s three components can be viewed as PERAC in microcosm. The first considers the parallel applicability of environmental law and IHL, the second the applicability of environmental human rights, and the third the tension between the conservationist principle of IHL’s laws of occupation and the need to progressively protect and enhance the environment to ensure the fulfilment of rights.
Austria argued that unless specifically excluded by the rule in question, occupying powers were obliged to apply international environmental law. Brazil also agreed with the Rapporteur’s views on the need to respect environmental legislation. Malaysia argued that there should be more latitude for occupiers to improve the environmental conditions in occupied territories in order to protect human rights, provided that it is done so in a way that includes the views the population. Micronesia felt that the focus on human rights should be more explicit, as did the Netherlands, Portugal and the Nordics. Lebanon suggested that the use of the term “population of the occupied territory” be replaced by “protected population of the occupied territory” in DP19 and DP20, in order to align them with the Fourth Geneva Convention, whereas South Africa proposed the addition of “future generations”.
Algeria, South Africa and the Nordics argued that occupiers should also have environmental obligations relating to the protection of maritime areas adjacent to occupied areas, something that was proposed in the Special Rapporteur’s initial draft of DP19. This was disputed by Greece, who felt that such an assumption took for granted that the authority of the occupying power extends to those areas, and argued that it should be assessed on a case-by case basis.
However, Belarus suggested that, as the rules of an occupying state can be more progressive, and therefore likely to increase the wellbeing of the occupied population, it is necessary to respect the legislation of occupiers. They proposed deleting part two of DP19, which addresses environmental human rights. Israel felt that the word “significantly” should be added before the word “prejudice” in order to maintain “…a proper balance between the prevention of significant harm to the environment and the prevention of significant prejudice to the health and well-being of the population”; and wholly rejected the third part of DP19 which they suggested did not reflect current law.
Draft principle 20 – Sustainable use of natural resources
DP20 addresses the sustainable use of natural resources in occupied territories. Under IHL, occupying powers are permitted to utilise natural resources, providing it is for the benefit of the protected population (usufruct). However as the rules were developed decades before the principle of sustainable resource use – particularly of non-renewable resources – rose to prominence, the draft principle seeks to bring the principle of usufruct up to date.
Azerbaijan cautioned that DP20 required additional clarification to avoid misinterpretation and abuse by occupiers. Belarus supported the principle but felt that the temporary nature of occupations should create a presumption against actions that may be irreversible. Brazil highlighted the principle of permanent sovereignty over natural resources and the need for the occupier to act solely for the benefit of the occupied population. This was a view shared by Malaysia who also argued that “…use which merely “minimises harm” is insufficient to demonstrate sustainable practice”, suggesting that the wording be changed to prevent harm to, and the destruction of, natural resources. Greece proposed a reformulation to include a reference, or a non-prejudice clause, to the applicable principles of general international law. This was intended to address the prohibition of pillage of natural resources located in an occupied territory, and the export of the products extracted during occupations to third states, where economic or other forms of relationship may further entrench an illegal occupation.
Algeria felt it important to clarify the meaning of “sustainable use” in order to avoid resource exploitation without transparent, environmental impact assessments and management plans meant to prevent and reduce environmental harm. They also highlighted the role that communities should play in decision-making over the use of resources. The Netherlands highlighted the importance of the principle of sustainable use, suggesting that a balance needed to be struck between environmental harm caused by the use of non-renewable resources and the needs of society, future generations and the use of natural resources and ecosystem services for public welfare. And as with South Africa’s intervention on DP19, they too highlighted the principle of intergenerational equity. Portugal suggested that the present and future development of occupied areas depends on the sustainable management of their resources, and that environmental protection was not only in the interest of the occupied territory and its population but all humankind. South Africa supported the principles of self-determination and sovereignty over natural resources of peoples living under colonialism and foreign occupation, while the Nordics welcomed the modern interpretation of the principle.
Nevertheless, Austria questioned the wording of DP20, suggesting that if the occupying power is legally permitted to use the resources, then the qualifier of “for the benefit of the population” is redundant, and could be replaced with a reference to the applicable rules of international law. Israel objected to DP20 in its entirety, arguing that it imposed additional requirements and elements that went beyond the current state of the law, a view that was shared by the US.
Draft principle 21 – Due diligence
DP21 seeks to integrate the environmental law norm of due diligence into occupation law, in order to restrict activities in the occupied territory that may cause harm to areas beyond it. Austria suggested that the ILC’s wording appeared to diminish the responsibility of an occupying power when set against the norms established by Principle 21 of the Stockholm Declaration, and Principle 2 of the 1992 Rio Declaration, which both address transboundary harm. Malaysia welcomed DP21, arguing that the control exercised by an occupying power justified the principle and posed the question of whether it should also apply to situations of armed conflict beyond occupations. They also introduced the idea of “continued accountability”, whereby occupying powers should have an ongoing responsibility to compensate affected territories, so that responsibility is not borne by those succeeding the occupying power, or the previously occupied population.
DP21 was also supported by the Netherlands and Portugal, who again reiterated the connection between environmental degradation and the enjoyment of human rights. The Nordics praised the Special Rapporteur’s elaboration of the principle of due diligence in her fourth report, and hoped that it would be fully reflected in the commentaries. Ukraine drew attention to the serious pollution risks it is facing linked to the conflict in the east of the country and their potential to affect wide geographic areas. Algeria thought it important to specify the need for occupiers to exercise due diligence in refraining from acts on their own territory that may cause environmental harm to an occupied territory, where it is adjacent to their territory. In this regard, they noted that domestic decisions taken by the occupying power can have implications for environmental protection in the occupied territory, and that this should be reflected in the principles.
However Turkey felt DP21 to be a regrettable “…early indication of a general deficiency in convincing legal sources”, suggesting that the principle was not supported by the precedents provided by the Special Rapporteur’s report. The US again complained that the principle went beyond what is currently required by the law of occupation.
Responses to the earlier draft principles
As noted above, this year’s debate was also a further opportunity for states to provide their views on the 18 draft principles already prepared by the ILC, and in particular the principles applicable to the post-conflict phase, whose commentaries were published earlier this year. In her fourth report, the Special Rapporteur had proposed that a number of the previous draft principles would also apply in situations of occupation. Iran agreed with this analysis, considering that DP6 Protection of the environment of indigenous peoples, DP15 Post-armed conflict environmental assessments and remedial measures, DP16 Remnants of war, DP17 Remnants of war at sea and DP18 Sharing and granting access to information would all be appropriate to situations of occupation. Similarly Switzerland recognised that there were possible linkages and overlaps between the different phases of conflicts and that these should be further clarified, citing as an example the principles relating to remedial activities, which they suggested were not exclusively relevant to the period after an armed conflict but also directly after the cessation of active hostilities. Algeria also welcomed the decision to review the compatibility of the previous principles to situations of occupation.
Russia took issue with a number of the draft principles already published, arguing that they contained certain provisions that required further consideration and elaboration, especially those that applied before and after conflicts, and suggested that they should avoid language that isn’t already used in IHL. The US also expressed discomfort, objecting to the mandatory phrasing of many of the post-conflict draft principles, and arguing that this was only appropriate for rules that constituted settled law.
Turning to the specific principles and their commentaries, DP4 received a mixed response. DP4 outlines general measures that states should take in relation to PERAC. It exhorts states to take effective legislative, administrative, judicial and other measures but Belarus felt that it wasn’t clear what “other” meant in this context and was likely redundant. The Republic of Korea thought the second paragraph of DP4 should be formulated in a less prescriptive way so as to encourage voluntary measures, arguing that this would be more suitable for draft principles. Whereas Russia suggested that it wasn’t quite clear what was meant by “further measures” in paragraph two. Brazil claimed to be startled by the absence of references to more recent environmental agreements in the commentary to DP4, including the Rio Declaration, the Johannesburg Plan of Implementation and 2012’s Rio+20 The Future we Want.
However, Lebanon welcomed DP4, arguing that the practice of disseminating IHL to armed forces and to civilians contributed to states’ respect for the relevant provisions. They also highlighted the obligation on states to conduct Article 36 reviews into new weapons in order to determine their potential environmental impact, a point also noted by Mexico, who welcomed the need for preventative measures to be taken in peacetime, including the establishment of protected areas. In the same vein, they suggested that the commentary for DP5 should make reference to international practice within the framework of the 1972 World Heritage Convention, and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
DP6 on the Protection of the environment of indigenous peoples was one of the more heavily contested principles when it was published in the ILC’s third report, both within the ILC and in 2016’s Sixth Committee debate. This year only Russia objected, arguing that it was not directly related to the topic under discussion. However Malaysia and others took a different view, noting that Indigenous communities are both particularly affected by, and have a significant role to play in post-conflict remediation efforts. Both they and Micronesia highlighted the special relationship between Indigenous peoples and their environment referred to in the commentary, and the importance of states undertaking effective consultations and cooperation with Indigenous peoples over how best to remedy the environmental harms inflicted by conflicts. The Republic of Korea also welcomed the principle.
DP8 encourages states and international organisations involved in peace operations in relation to armed conflicts to minimise their environmental footprint. Brazil expressed caution over how “peace operations” were defined and how the different terminology was used as this might cause confusion, with them noting that these ranged “…from duly authorized UN peacekeeping operations to actions whose legality might be elusive”, with the applicable norms varying depending on the type of operation. They also suggested that many related issues are currently being considered in other fora and that DP8 might lead to fragmentation as a result. The Republic of Korea suggested that the scope of DP8 be limited solely to armed conflicts so that it is not applied too broadly, while the US complained that DP8 introduced new and substantive legal obligations in respect of peace operations. It was left to Malaysia to welcome the objectives of DP8, who cited their own experiences as part of peacekeeping operations as proof of the need to protect the environment before, during and after armed conflicts.
Only Mexico commented on DP10, which deals with the need to apply the IHL principles of distinction, proportionality, military necessity and precautions in attack to the protection of the natural environment. They felt it necessary to include international practice related to damage to the environment, and its interaction with the concept of military necessity, in order to determine the legality of an attack on the environment. Russia highlighted DP11 as problematic, making reference to the need to clearly define what is meant by “environmental considerations” and arguing that it is not a term that exists in IHL. The Republic of Korea welcomed DP14 and DP15, arguing that it was important that the restoration and protection of the environment, post-armed conflict assessments, and remedial measures are part of peace processes.
DP16 on Remnants of war proposes obligations for the post-conflict management of toxic and hazardous war remnants. In so doing it mirrors existing obligations for the removal of explosive remnants of war but also covers toxic remnants not currently addressed by international instruments. Switzerland saw merit in also clarifying the rights and obligations of non-conflict parties for the clearance, removal or destruction of remnants of war, which would reflect the principles on international cooperation and assistance found in relevant disarmament agreements, such as Protocol V of the Convention on Certain Conventional Weapons (CCW). Malaysia observed that DP16 did not directly deal with the issue of responsibility, which as far as they would be concerned would be without prejudice to the existing agreements to which they are party, such as the mine ban treaty, and to those that they are not – the Convention on Cluster Munitions and the CCW. Viet Nam once again expressed its support for work that would help establish state responsibility for dealing with the remnants of war, providing that it was complementary to existing international law on the protection of the environment and IHL.
Meanwhile the US reiterated its previous objections to DP16, suggesting that it purports to expand the obligations under the CCW to: “…mark and clear, remove, or destroy explosive remnants of war to include “toxic or hazardous” remnants of war.” This interpretation is extremely debateable. In arguing that the principle appeared to exceed existing legal requirements, they drew attention to the fact that the term “toxic remnants of war” is not defined under international law. On the related DP17 – Remnants of war at sea, Malaysia wished to underscore the importance of a UNCLOS coastal state’s cooperation in efforts to address marine remnants, which are subject to specific rights and duties depending on their location.
Finally, only Malaysia and the Republic of Korea spoke on DP18, which invites states and international organisations to share and grant access to information to facilitate environmental remediation. Malaysia noted that any obligation to share information held as a result of their involvement in peacekeeping operations would be subject to the limitations of their domestic Official Secrets Act. And while the Republic of Korea welcomed the principle, they thought it unclear how much information needed to be shared, and until when, in order to facilitate remedial measures after an armed conflict.
State views on the focus of the final report
The stated aim of the Special Rapporteur to address non-international armed conflicts – as well as questions of responsibility and liability – in her final report next year was welcomed by the overwhelming majority of those who spoke. The only objection was from the Czech Republic, who queried the project as whole, bemoaning the fact that the work so far did not enable them to clearly understand where the ILC was heading or what to expect as an end result. A largely unenthusiastic UK looked forward to the commentaries in 2019 in the expectation that they would “…be narrower in scope than the report itself.”
Another note of caution for states is that because the PERAC study has already produced 21 draft principles, the Special Rapporteur has sought to manage expectations by stating that she will not be able to provide a comprehensive presentation of either responsibility or liability, both of which are potentially vast – and politically contentious – topics. This approach was endorsed by the Nordics who stated a preference for a more general reference to existing rules and principles. Austria too welcomed the direction of travel, particularly on questions relating to responsibility and liability in the context of occupation. However it may disappoint Belarus, who requested an analysis of compensation mechanisms; Lebanon, who felt that responsibility and liability should be expanded on in more detail than is likely; Mexico, who hoped for clear definitions of jurisdiction and control, particularly in the case of territories occupied by non-state actors, which receive support from third states; Romania and South Africa, who were interested in a detailed examination of the polluter pays and precautionary principles; Switzerland, who expressed interest in a general provision on human rights; and Turkey, who in spite of their criticisms on the study as a whole, hoped to see more work on the protection of water sources and installations.
The plan to address non-international armed conflicts and non-state actors was also welcomed by many, including by the ICRC, the Netherlands, Portugal, Romania, Slovakia, the Nordics and Switzerland. Given the objections from some quarters over the question of how the draft principles might apply to non-international armed conflicts, this is likely to be a key issue for the debate next year, and for the hopefully successful conclusion of the PERAC study. Similarly, the scope of what constitutes a non-state actor was not really addressed in any of the national statements. While many states may immediately think of armed groups, the definition also covers Private Military and Security Contractors and businesses, and with them a highly complex legal landscape.
This is the fourth analysis of the Sixth Committee PERAC debates that we have written. Like the study itself, they have grown increasingly complicated. And just as some states have been either progressive or conservative throughout, important foundational issues have also remained unresolved. Foremost among these is the relationship between IHL and environmental and human rights law. For the majority of states, this is evidently not an issue but it certainly is for a number of influential states. It has also created the strange situation where the ICRC has found itself aligned – in some respects – more closely with conservative states than with more progressive countries. Articulating how these two legal frameworks can complement IHL without weakening it, or further reducing the poor state of compliance, is becoming an ever more urgent task.
The PERAC study began at a point where the environment was only just finding its voice in relation to armed conflicts. Much has changed since then, thanks to the far greater visibility of the damage being wrought in the ongoing conflicts in the MENA region and elsewhere, which in turn has helped catalyse political attention on the environmental dimensions of armed conflicts. There is clearly momentum on both the political and legal levels, and this needs to be sustained and built on. This is particularly important, not only for the eventual outcome of the PERAC study but also for whether its non-binding draft principles are to have a meaningful impact where they are most needed. It’s fair to say that the environment has now found its voice – the question we all face now, is how should it be used?
Doug Weir is Research and Policy Director at the Conflict and Environment Observatory