UN lawyers present revised post-conflict environmental protection principles

UN lawyers present revised post-conflict environmental protection principles

What should parties to a conflict and international organisations do to help protect the environment and those who depend on it from the effects of war? Nine new principles proposed by the UN’s International Law Commission seek to answer this question by distilling existing law and practice on everything from information sharing and the rights of indigenous peoples to tackling the toxic remnants of war. This blog takes a look at the new draft principles and assesses their potential contribution to environmental and civilian protection.

Back in July, we published some initial thoughts on a set of draft principles intended to enhance the protection of the environment in relation to armed conflicts – henceforth “PERAC”. The principles are contained in the third report by the International Law Commission’s (ILC) Special Rapporteur on PERAC Dr Marie Jacobsson. The report and its draft principles were debated by members of the ILC over the summer. In all, 22 ILC members spoke to the report and its principles during the debate.

The ILC is comprised of independent legal experts and it can be viewed as an academic body that makes recommendations to the UN General Assembly on the progressive development of international law. The overwhelming majority of the 22 members that spoke recognised the importance of the PERAC topic and the ILC’s study, although there were a number of recurrent reservations, which were mostly associated with the scope and structure of the project.

That scope was deemed problematic will come as no surprise to anyone working on conflict and the environment and it has a particular relevance for lawyers, for whom the ill-defined concepts of before, during and after conflict may or may not govern the applicability of different legal regimes. Other issues concerning scope related to whether conflicts were international or non-international in nature and the use of terms, such as the natural or human environment. Members also quibbled over the use of “should”, “shalls” and “encourages” and there appeared to be no real consensus over the final outcome of the project – more on that below.

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The redrafted draft principles

The report contained nine draft principles, seven of which related to post-conflict obligations. The ILC meeting during July and August was an opportunity for members to comment on the proposed principles and for agreement to be reached on whether they should be forwarded to a drafting committee for further refinement. In the end, and despite some objections, all nine principles were forwarded. The committee then revised the original draft principles based on the plenary debate. Their full report and commentary is available here with a short summary of key decisions below, as can be seen, the committee also renumbered the principles:

Original

I-1 Implementation and enforcement measures
States should take all necessary steps to adopt effective legislative, administrative, judicial or other preventive measures to enhance the protection of the natural environment in relation to armed conflict, in conformity with international law.

Revised principle

4. Measures to enhance the protection of the environment

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.

The drafting committee elected to add additional clarity to DP4 by dividing it into two parts. Part one deals with States’ existing obligations under international law, whereas part two is perhaps more interesting. Although it is couched in less prescriptive terms, the committee felt it could encourage States to implement policy measures that went beyond their existing legal obligations, an important idea given the current weakness of legal protection for the environment.

I-3 Status of forces and status of mission agreements
States and international organizations are encouraged to include provisions on environmental regulations and responsibilities into their Status of Forces or Status of Mission Agreements. Such provisions may include preventive measures, impact assessments, restoration and clean-up measures.

7. Agreements concerning the presence of military forces in relation to armed conflict
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.

Although the committee noted that the requirements in DP7 did not stem from any obligation under international law, they do increasingly reflect the practice of militaries. A number of representatives questioned the applicability of the original principle in plenary, with some suggesting that basing agreements had little to do with the conduct of hostilities. However, as the case of contamination from ISAF facilities in Afghanistan demonstrates, the environmental footprint of installations can be significant before, after and also during conflict. Something that stronger environmental standards in bilateral agreements could help address. A compromise was reached on the temporal scope with the use of “in relation to armed conflict” while the lack of legally defined obligations is reflected by the use of “as appropriate”. Nevertheless, DP7 is an important principle given the environmental bootprint of military operations.

I-4 Peace operations
States and organizations involved in peace operations shall consider the impacts of those operations on the environment and take all necessary measures to prevent, mitigate, and remediate the negative environmental consequences thereof.

8. Peace operations
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.

Reformulating DP8 proved a challenge for the committee. As with DP7, the principle is based on a growing body of practice but there is no legally agreed definition of a “peace operation” – which may refer to a wide variety of multilateral interventions at different phases of a conflict or in response to instability. As such they felt it necessary to introduce “in relation to armed conflict” and will expand further on the nature of the operations in question in the commentaries. The terms “consider” and “appropriate” were included because once again there is no existing legal obligation for parties to act as suggested.

III-1 Peace agreements
Parties to a conflict are encouraged to settle matters relating to the restoration and protection of the environment damaged by the armed conflict in their peace agreements.

14. Peace processes
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.

DP14 was another principle that received attention in plenary. As with the previous two it represents the growing trend for environmental factors – such as natural resources – to be included in peace agreements. However the committee noted that not all conflicts are concluded with a formal agreement so instead opted for “peace processes”. Part two reflects the role that bodies such as UNEP can play as arbiters in such processes and the fact that parties to a conflict do not always welcome this role.

III-2 Post-conflict environmental assessments and reviews
1. States and former parties to an armed conflict are encouraged to cooperate between themselves and with relevant international organizations in order to carry out post-conflict environmental assessments and recovery measures.

2. Reviews upon conclusion of peace operations should identify, analyse and evaluate any environmentally detrimental effects of those operations on the environment, in an effort to mitigate or remedy those detrimental effects in future operations.

15. Post-armed conflict environmental assessments and remedial measures
Cooperation among relevant actors, including international organizations, is encouraged with respect to post-armed conflict environmental assessments and remedial measures.

DP15 was shortened significantly, but also broadened. Part two of III-2 was deleted and assumed to be included as part of DP8 on peace operations. Meanwhile DP15 was clarified to ensure that it included both States and non-State parties as “relevant actors” – a welcome move. However it could perhaps have been improved by exchanging “encouraged” for “should”. The committee were clear that this principle should deal solely with assessments and not cover issues of liability or reparations.

III-3 Remnants of war
1. Without delay after the cessation of active hostilities, all minefields, mined areas, mines, booby-traps, explosive ordnance and other devices shall be cleared, removed, destroyed or maintained in accordance with obligations under international law.

2. At all times necessary, the parties shall endeavour to reach agreement, both among themselves and, where appropriate, with other States and with international organizations, on the provision of technical and material assistance, including, in appropriate circumstances, the undertaking of joint operations necessary to fulfil such responsibilities.

16. Remnants of war
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.

We were pleased to note that the plenary echoed our initial thoughts on the principles that III-3 was too narrowly focused on explosive remnants of war to the exclusion of toxic and physical remnants. Unfortunately the new wording fails to cover remnants that threaten human health, including only “the environment”, and the urgency expressed in III-3 has also been lost, with the removal of “without delay”. That parties can “seek to” to take measures, and that they will be taken “subject to the applicable rules of international law” also raises questions.

The reference to the provision of international assistance is welcome but this too should be stronger. Iraq and Vietnam are but two States that have requested international assistance and cooperation on toxic remnants but this has not been forthcoming due to the absence of any clear legal framework. However, this principle is certainly moving in the right direction and when published, the commentaries will make for interesting reading.

III-4 Remnants of war at sea
1. States and international organizations shall cooperate to ensure that remnants of war do not constitute a danger to the environment, public health or the safety of seafarers.

2. To this end States and organizations shall endeavour to survey maritime areas and make the information freely available.

17. Remnants of war at sea
States and relevant international organizations should cooperate to ensure that remnants of war at sea do not constitute a danger to the environment.

Part two of III-4 was deleted and rolled into DP18 below, while the plenary was as one on the need to address marine remnants – thanks in no small part to a detailed report submitted by the Federated States of Micronesia – the legal, political and technical challenge they present is perhaps reflected in DP17’s brevity. Once again the committee delinked environmental harm from human health, to the detriment of the principle and the wider PERAC initiative, arguing that “public health” was outside the scope of the topic – something that will come as news to the communities of Micronesia.

III-5 Access to and sharing of information
In order to enhance the protection of the environment in relation to armed conflicts, States and international organizations shall grant access to information and share information in accordance with their obligations under international law.

18. Sharing and granting access to information
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.

Predictably this principle triggered much debate in plenary; based loosely on the duty to cooperate, the who, what and when of information sharing was raised by many. Part one of the revised principle perhaps misses a trick by not including non-State actors, who may still hold information necessary for effective remediation measures even after conflicts have ended. Similarly, while the reference to existing obligations under international law is intended to reflect treaties on ERW, what of depleted uranium, where no treaty exists and yet the issue of transparency has been raised in repeated UN General Assembly resolutions? On part two’s exemptions for defence and security, such exclusions are commonplace in environmental agreements but it feels as is the committee risks placing too much store in “good faith”.

IV-1 Rights of indigenous peoples
1. The traditional knowledge and practices of indigenous peoples in relation to their lands and natural environment shall be respected at all times.

2. States have an obligation to cooperate and consult with indigenous peoples, and to seek their free, prior and informed consent in connection with usage of their lands and territories that would have a major impact on the lands.

6. Protection of the environment of indigenous peoples
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.

DPIV-1 on indigenous peoples proved to be the most contentious in plenary, with many members split on whether it should be included at all, whether the practice in the Special Rapporteur’s report justified its inclusion and whether its link with armed conflict was sufficiently clear. In common with the other principles, part one has been reframed to focus specifically on protecting the environment. Part two meanwhile addresses the procedural rights of indigenous peoples by requiring States to address harm through their own institutions. The wording of both elements drew heavily from existing legal instruments and now expressly links the principle with armed conflict.

Time for States to have their say

The revised draft principles will be submitted with the ILC’s 2016 report for debate at the UN General Assembly’s Sixth Committee this autumn.  As we noted in July, the debate should be fascinating, whereas past sessions have primarily focused on the comparatively well-trodden ground of international humanitarian law, these new principles are more heavily influenced by policy and practice and therefore more open to interpretation.

Overall, the principles seem to be moving in a positive direction, however the trend towards excluding the humanitarian consequences of environmental damage is a worrying one and we would urge the ILC and States to address this as a matter of urgency. The plenary itself seemed confused over whether it was dealing with the “natural” or “human” environment, a distinction that science might well argue is an artificial legal construct. All of these principles, and the actions they propose, have implications for human health, livelihoods and wellbeing; excluding the human element from those on remnants or indigenous peoples weakens them considerably.

Where next for the ILC and PERAC generally?

As Dr Jacobsson is standing down from her role as Special Rapporteur, it is unclear what direction the ILC’s PERAC study will take. Dr Jacobsson and her team deserve an enormous credit for their work and in ensuring that the process has reached its current stage. Concern was expressed in plenary that the topic might become orphaned in her absence but we were heartened that many members wished to delve deeper into issues surrounding reparations for damage, into the role of non-State actors and into the environmental aspects of the laws of occupation.

Another question at plenary related to what the outcome of the PERAC project would be. The Special Rapporteur originally suggested draft guidelines, although we wonder how effective that would be in achieving enhanced protection in the long run. In recent years the ILC has shifted from its historical role as a catalyst and originator for new treaties. Some have argued that in publishing principles, guidelines or conclusions instead of draft articles they are bypassing States and appealing directly and more softly to the world’s lawyers and judges.

Big questions; but it’s clear that an opportunity exists to align the work of the ILC more closely with the renewed political interest of States recently on display at the UN Environment Assembly. How that might be done is a question for States and we will be keenly watching the upcoming debate in the UN Sixth Committee for signs of engagement by delegations.

 

Doug Weir manages the TRW Project.

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