The UN’s International Law Commission has just adopted 28 legal principles intended to better protect the environment in relation to armed conflicts.
This year is a defining one for the laws protecting the environment in conflict. This month, the UN’s International Law Commission has endorsed 28 legal principles intended to enhance protection before, during and after armed conflicts. Meanwhile the international community is awaiting the publication of new environmental rules for militaries that are being prepared by the International Committee of the Red Cross. Eight of the principles adopted by the Commission in its long-running project were new this year. As the Commission has now finished the greater part of its involvement with the topic, Stavros Pantazopoulos discusses the eight new draft principles, identifies areas with room for improvement and looks ahead to what comes next.
• The eight new draft principles cover issues ranging from human displacement, to corporate environmental conduct, to the pillage of natural resources.
• Despite relevant proposals, no draft principle was adopted on the responsibility of non-state armed groups for environmental damage.
• More than 25 years after it was first proposed by the Red Cross, the famous Martens clause has been extended to cover the environment.
• Pure environmental damage is compensable when caused by an internationally wrongful act in relation to armed conflict.
• A decision on the harmonisation of the terms ‘environment’ and ‘natural environment’ has been postponed until the draft principles’ second reading.
The International Law Commission (ILC) included the topic of the “Protection of the environment in relation to armed conflicts” (PERAC) on its agenda in 2011. Eight years later, on the 8th of July 2019, the Commission adopted its draft principles on the protection of the environment in relation to armed conflicts on first reading. The final version consists of 28 draft principles (DPs), 22 of which had been previously adopted by the Commission, so their text remained unchanged. Their adoption on first reading is not the end of the process but it is a significant moment as it nears its conclusion.
The blog mainly focuses on the eight newly adopted DPs and offers some general remarks on the topic at hand. To this end, we identify the changes introduced by the ILC’s Drafting Committee to the DPs proposed in March by the ILC’s Special Rapporteur Dr. Marja Lehto, and which we reviewed in our earlier blog. This new blog makes reference to the statement by the Chair of the ILC’s Drafting Committee, Mr. Claudio Grossman Guiloff, as it provides useful insights into the debate in the Drafting Committee and helps to clarify certain controversial issues.
Before reviewing the changes to the text of the new DPs agreed by the Drafting Committee, and subsequently by the Commission, it should be noted that the Committee also proposed changes to how the principles are arranged. The text as a whole now has five parts: part one “Introduction” – which contains two DPs, part two “Principles of general application”, part three “Principles applicable during armed conflict”, part four “Principles applicable in situations of occupation”, and part five “Principles applicable after armed conflict”.
The Drafting Committee changed the title of part two from ‘General principles’ to ‘Principles of general application’ on the understanding that the DPs it contains are applicable to more than one phase of conflict (before-, during-, post-armed conflict or situations of occupation). Part two now includes nine DPs, four of which were adopted during the current session of the ILC and these are considered in turn below.
Draft principle 8 – Human displacement
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.
As ILC member Mr. Hmoud noted during the plenary debate, the need to shelter millions of Syrian refugees has created environmental stress in neighbouring countries, stress that the international community has failed to properly mitigate. This is in no way unique to the Syrian conflict, for example the 2005 UN High Commissioner for Refugees Environmental Guidelines highlighted that “refugee-related environmental impacts can have serious negative implications for the health and well-being of the local population, as well as that of the refugees”, and that “refugee activities such as uncontrolled fuelwood collection, poaching, and over-use of limited water supplies, add pressure to ecosystems in many regions”.
In comparison to the earlier version of the principle proposed by Dr. Lehto, a reference to “international organizations” has been added, while the term “relevant actors” now includes, but is not limited to, NGOs and development agencies. In light of this, this recommendation, which progressively develops the law, could be viewed as establishing a burden-sharing mechanism and is to be commended.
On the other hand, the ILC could expand the protective function of DP8 by including within its scope the areas crossed by displaced persons, since the environment of these areas can also be put under strain. The claim brought by Jordan before the UN Compensation Commission concerning the movement of Iraqi refugees to Jordan following the Iraqi invasion and occupation of Kuwait is quite telling. The refugees fled with their livestock and, in the process, large tracts of the Jordanian Badia – a fragile dryland ecosystem – were quickly affected by overgrazing, and shrubs that take decades to grow and stabilise were degraded and destroyed in a matter of weeks and months.
Draft principle 9 – State responsibility
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.
DP9 is entitled “State responsibility”, rather than “Responsibility and liability” – as originally proposed by Dr. Lehto in its predecessor DP13 quater. It follows from this change that DP9 now exclusively addresses the issue of responsibility, with liability being dealt with elsewhere. As the Chair of the Drafting Committee detailed, the first paragraph of DP9 stipulates “a general rule on responsibility of states for internationally wrongful acts in connection with environmental damage for the purposes of the present topic”.
Even though the proposed DP13 quater dedicated a separate paragraph to the issue of pure environmental damage, it is to be noted that damage to the environment per se found its way into the ILC draft principles by means of the phrase “damage to the environment in and of itself”. Nevertheless, the reference to damage to “ecosystem services” was omitted from the revised version on the agreement that specific reference will be made to the concept in the commentaries. Paragraph 2 contains a ‘without prejudice’ clause, along the lines of paragraph 2 of the proposed DP13 quater.
Corporate conduct and the protection of the environment in relation to armed conflicts
Unsurprisingly, the following two DPs became the object of extensive discussions, as they address a controversial aspect of PERAC – corporate conduct. Both DPs 10 and 11 address recommendations to states and could be seen as progressively developing the law in this area. The text of DP10, which is entitled “Corporate due diligence”, reads as follows:
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.
In comparison to its earlier incarnation (the proposed DP6 bis), the expression “other business enterprises” has been added to “corporations”, which echoes the name of the “UN Working Group on the issue of human rights and transnational corporations and other business enterprises”. Moreover, two terms were deleted from the corresponding proposed DP. Firstly, the Drafting Committee agreed to delete the reference to “precaution”, thereby avoiding potential misunderstandings regarding the potential applicability of the precautionary principle under international environmental law. Secondly, the word “equitable” was omitted from the phrase “in an equitable and environmentally sustainable manner”. This took into account that the reference to “environmentally sustainable manner” suffices to establish a link with the concept of sustainability, the latter combining ecological, economic, and social dimensions. It is important to underline that judicial and administrative measures fall within the scope of “other measures”.
Lastly, as DP10 forms a recommendation to states, the Drafting Committee settled on reformulating the standard of behaviour from “States should take appropriate legislative and other measures to ensure that” to “States should take appropriate legislative and other measures aimed at ensuring”, so as to illustrate the “purposive orientation” of the draft principle. Interestingly, the second sentence of DP10 refers explicitly to “natural resources”, demonstrating the important role that the extractive corporate industry may play in the context of an armed conflict.
The second draft principle touching upon corporate conduct is DP11 on “Corporate liability”:
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.
Quite importantly, the proposed title of the original version of this principle (DP13 quinques) was “corporate responsibility”, but this was changed by the Drafting Committee in order for it to focus specifically on corporate liability. The observations made in the context of DP10 regarding the addition of “business enterprises” and the redrafting to “aimed at ensuring” apply equally to DP11.
The first sentence of DP11 is the logical follow-up of DP10, while the second sentence attends to the relationship between the parent corporate or business entity and its subsidiary. Drawing on guiding principle 25 of the UN Guiding Principles on Business and Human Rights, which provides for the duty of States to grant access to effective remedy to those affected by business-related human rights abuses, the third sentence of DP11 encourages states to provide adequate and effective procedures and remedies.
New principles that apply during armed conflicts
The ILC adopted three new draft principles that apply during armed conflict. DP12, entitled “Martens Clause with respect to the protection of the environment in relation to armed conflict”, reads as follows:
In cases not covered by international agreements, the environment remains under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.
In essence, DP12 has extended the scope of the well-established Martens clause to environmental protection. Moreover, it was agreed to place DP12 in part three and not in part four, which deals with situations of occupation, on the understanding that DP12 applies equally in times of occupation. Two points merit further scrutiny. First, some ILC members expressed their objection to the inclusion of the phrase ‘from the principles of humanity’, since the latter has been traditionally understood as protecting human beings. The ILC, however, rightly decided to retain this specific reference not only because the Martens clause contains this phrase in all its formulations, but more importantly to evince “the intrinsic link between the survival of human beings and the state of the environment in which they lived”.
The second point of interest is that the reference to the “principles of humanity” could serve as an entry point of international human rights law, with the view to enhancing environmental protection during armed conflict and in situations of occupation. On a final note, the phrase “in the interest of present and future generations”, which was present in Dr Lehto’s original proposal (DP8 bis) was agreed to be omitted.
We turn now to the issue of natural resources, a topic that has repeatedly attracted the attention of the international community. The urgency of dealing with the illegal exploitation of natural resources was raised during the ILC’s plenary. This included the Taliban-facilitated hunting of saker falcons in Afghanistan for sale in the Middle East (statement by ILC member, Ms. Oral), and the extraction and trade in minerals, timber and oil that financed warring groups and other human rights abuses in Angola, Côte d’Ivoire, Liberia and Sierra Leone (statement by ILC member, Mr. Jalloh). The original text of proposed DP13 ter was not altered by the Drafting Committee, becoming DP18, which is entitled “Prohibition of pillage”, and provides that the “[p]illage of natural resources is prohibited”.
An interesting debate about the terminological distinction between “pillage” and other cognate terms, such as “spoliation”, “plunder” and “illegal exploitation of natural resources” occurred within the ILC plenary. However, in summing up the debate, Dr Lehto dissolved any doubts by mentioning that the term “illegal exploitation of natural resources” constitutes a descriptive term rather than a legal concept, whereas the other three terms “all had a common legal meaning and had been used interchangeably by international courts and tribunals”. Given that the concept of “pillage” is closely linked to that of “property”, the former applies to natural resources as long as they constitute “property” and hence, global commons, such as the atmosphere and the outer space, are conceptually excluded from the scope of DP18. Lastly, and as appropriate, DP18 is also intended to apply to situations of occupation.
DP19 on “Environmental modification techniques” was also adopted during the current ILC session. Its text is as follows:
In accordance with their international obligations, States shall not engage in military or any other hostile use of environmental modification techniques having widespread, longlasting or severe effects as the means of destruction, damage or injury to any other State.
DP19 is inspired by article I of the ENMOD Convention, which prohibits the deliberate manipulation of the environment. DP19 could be applicable during a non-international armed conflict provided that the environmental modification techniques cause damage in the territory of another state (see statement by ILC member Mr. Ruda Santolaria). Another interesting interpretation was advanced by the ILC member, Mr. Grossman Guiloff, who argued that the prohibition should be interpreted to cover “the environment in all parts of a State’s own territory, in disputed territories and in areas that were under no State control in times of conflict”.
Restoring the environment after armed conflicts
Finally, a newly adopted DP was added to the part dealing with the post-armed conflict phase. DP26 on “Relief and assistance” provides for the following:
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.
Building on paragraph 2 of the proposed DP13 quater, DP26 is preoccupied with the provision of relief and assistance where the source of environmental damage is unidentified or reparation is unavailable. DP26 contains a recommendation to all states in a capacity to do so, and not only to former parties to the armed conflict. As mentioned in our previous blog, it foregrounds a pragmatic proposal whereby reparation measures, relief and assistance, even without a determination of responsibility, are brought to the fore. DP26 should be read together with DP25, pursuant to which: ‘Cooperation among relevant actors, including international organizations, is encouraged with respect to post-armed conflict environmental assessments and remedial measures.’
The draft principles are a remarkable achievement – but gaps remain
The conduct of non-state armed groups
The two DPs on corporate environmental conduct in relation to armed conflict are doubtless a welcome contribution for the progressive development of the law. Nevertheless, the ILC shied away from – even if for understandable reasons – dealing with the responsibility of non-state armed groups for causing environmental damage in the course of armed conflicts. This issue is a pressing one given the growth in non-international armed conflicts around the world and the increasing number of non-state armed groups involved in them.
Two ILC members submitted proposals to this end. Mr. Park, supported by Ms. Oral, addressed the responsibility of non-state armed groups as such, while Mr. Jalloh called for the adoption of state measures “to ensure that persons who commit crimes that lead to the destruction of the environment during, before or after armed conflict are held criminally responsible”. Last but not least, suggestions were also voiced for states to provide for reparations by organised armed groups and their leaders for violations of environmental obligations under international law (Mr. Hmoud), and the duty of armed groups to provide reparations to victims of violations of the law of armed conflict, with due regard to the matter of environmental damage (Mr. Saboia).
Victim assistance forms another area on which the ILC could elaborate further when adopting the DPs on second reading. Although the Chair of the Drafting Committee hastened to clarify that “victims” under DP11 forms a “broader concept, including individuals who make a living from the environment itself”, victim assistance could assume a more inclusive role.
In addition, the ILC could explicitly refer to victim assistance in DP26 on “Relief and assistance” – and in its commentary, thereby establishing in more concrete terms the link between environmental damage and the importance of mitigating its impact on public health and on those who depend on the environment for their livelihoods. With the DPs as they stand, victim assistance is more explicitly addressed when harm is caused by corporations than when it is caused by state or other non-state actors.
The environmental impact of weapons
Our last point pertains to the impact of specific weapons on the environment. Despite a relevant proposal, the ILC decided, somewhat contradictorily, that a specific draft principle on the use of weapons, especially of biological and chemical ones, is not required. The environmental impact of nuclear weapons was not raised during this year’s plenary. Against this background, it seems reasonable to argue in favour of the inclusion of a DP worded along the lines of article 36 of Additional Protocol I.
Such a DP would call on states to conduct reviews into the environmental impact of weapons, to determine whether their employment would, in some or all circumstances, be prohibited by any applicable rule of international law. However, to be of value, such reviews should be open to external scrutiny, consider both lifecycle and public health implications, be updated as environmental knowledge develops and go beyond the simple criteria provided by the cumulative widespread, long-term and severe damage threshold.
As is clear by the terms that the newly adopted DPs are couched in, certain draft principles have a firmer basis in treaty or customary international (humanitarian) law (draft principles 9, 12, 18, 19) than the rest, which do not employ mandatory language (draft principles 8, 10, 11, 26). This can be seen in the difference between the use of the terms “shall”, “should” and “are encouraged”. It is then no coincidence that those DPs containing “should”, or which “encourage” states, are some of the more legally interesting and controversial parts of the ILC study.
A last point concerns the recurring theme of harmonising the use of the terms “environment” and “natural environment” – the latter of which is used in treaty and customary international humanitarian law. The issue was raised by many ILC members in plenary but no consensus was reached. Accordingly, the Drafting Committee decided to retain the language as it currently stands, namely employing “natural environment” in certain DPs of part three, which deals with the period during armed conflict, and respectively using “environment” throughout the rest of the text of the DPs. Interestingly, a final decision on this issue was delayed until the second reading of the DPs.
The DPs that have been adopted by the ILC are not perfect, and we are still awaiting publication of the commentaries that will accompany the new principles discussed above. Nevertheless, given the low expectations for a successful outcome for the project in its early days, both the previous Special Rapporteur, Dr. Jacobsson, as well as the current one, Dr. Lehto are to be praised for their tireless efforts and productive approach.
As Dr Lehto underlined in her closing speech, the ILC’s PERAC draft has been adopted on first reading during the same year when the International Committee of the Red Cross (ICRC) will issue its revised military guidelines on the same topic, and thus, the two sets of instruments should be considered as “complementary in nature”. It therefore goes without saying that 2019 is a hugely symbolic year for efforts to enhance the legal protection for the environment in relation to armed conflicts.
As a follow-up, the adoption of the DPs on second reading is expected to take place in 2021 and until then, the ILC will have time to consider the views of states, international organisations, organs of the UN, and relevant civil society organisations. Before that happens, states will have their opportunity to debate the new principles – and the project as a whole – during this autumn’s UN General Assembly. While previous PERAC debates within the Assembly’s Sixth Committee have been broadly supportive, the reception from states this year will perhaps provide an indication of whether the ILC’s work, and that of the ICRC, are likely to have a meaningful impact on the environmental conduct of states and other actors.
Stavros Pantazopoulos is CEOBS’ Legal and Policy Analyst