Protecting the Environment in Non-International Armed Conflicts: Are We There Yet?

The International Law Commission (ILC) during its current 71^st session has provisionally adopted, on first reading, the Draft principles on the protection of the environment in relation to armed conflict. The first-reading text had taken five years to prepare, under the successive leaderships of Special Rapporteurs Ms. Marie G. Jacobsson (2013 – 2016), and Ms Marja Letho (2017-2019). The last report of Special Rapporteur Letho (2019) completed the work on this topic, focusing in particular on the question of environmental stresses related to non-international armed conflicts (NIACs). This blog post deals first with certain general issues as to the scope and form of the draft principles, and then discusses whether the draft principles are sufficiently responsive in the context of NIACs.

Scope and methodology of the topic

With respect to the ratione temporis of the draft principles, the ILC employed a temporal approach by drafting provisions structured according to three phases of an armed conflict: before (preventive measures, but also principles of a more general nature of relevance to all three temporal phases), during (the conduct of an armed conflict) or after (post-conflict measures in relation to environmental damage) an armed conflict. The rationale of the topic was to address the law of armed conflict but also other areas of international law. The scope of the topic (peacetime and wartime obligations) inevitably influenced the outcome, which led the ILC to adopt “principles” at a more general level of abstraction, albeit with different normative values, from recommendations to fully binding rules.

Regarding ratione materiae, the draft principles are to apply in both international and non-international armed conflicts (see  the Commentary to Draft principle 1). Among the ILC members and the States in the Sixth Committee of the General Assembly there was a broad agreement to address NIACs as part of the topic. Indeed the no-distinction approach that creates a single basic common framework has its advantage in the way that it allows some fundamental principles to be restated and developed. On the other hand, even the supporters of such approach were critical of the decision not to differentiate between the position of certain provisions in IACs and NIACs. For example, Draft Principle 16 on the prohibition of reprisals against the natural environment – which repeats verbatim paragraph 2 of article 55 of Additional Protocol I – provoked rich debate on whether such provision constitutes customary rule and if so, whether it also applies in NIACs. The commentary to draft principle 16 now notes that the provision is not intended to go beyond the scope of the corresponding conventional rule, but represents a step in the progressive development of international law.

A related and important issue concerned the practice of non-state actors (NSA). In her second report, Ms. Jacobsson stated that such practice would be of interest to the work on the topic without however constituting “practice” in the legal sense of the word, thus following the approach taken within the topic of “Identification of customary international law” (see A/CN.4/682, annex). Yet, even for this purpose the special rapporteurs experienced difficulties in obtaining information on the practice of NSAs; thus the draft principles are largely based on the practice of states and opinio juris.

Inclusion of more detailed provisions related to NIACs

In 2017, the Working Group for the topic raised a call for a more systematic attention to issues related to NIACs to usefully complement the already adopted draft principles. This was done with the last report of Ms. Letho in the context of illegal exploitation of natural resources and the responsibility of NSAs. With regard to the later, it must be emphasized that the Special Rapporteur discussed the possibility for holding NSAs directly responsible for environmental harm in addition to attribution of their conduct under the rules of state responsibility. In this respect, the report provided a rich and extensive analysis for consequences attached to violations of norms by different NSAs, but could only discern substantial development concerning the liability of corporations (see below the adopted draft principles), seen as an exercise not of codification but of development.

Regarding organized armed groups, the Special Rapporteur showed that nowadays the idea of them being able to incur international obligations via IHL and IHRL is largely accepted (para 51-53). However, when it comes to the possibility of having their international responsibility directly engaged she reaches the same conclusion as the 2014 ILA’s Report on non-state actors – ‘the mechanism of direct responsibility of [organized armed groups] seems to be, at the very best, a doctrine in statu nascendi’. Although we agree with the fact that this is still an emerging state practice, a draft principle on this matter would have helped clarify the legal framework in which organized armed groups evolve and contribute to establishing a more transparent and legitimate system of accountability (on this see Annyssa Bellal).

Below follows a short overview of the newly adopted draft principles related to NIACs.

(i) Draft Principle 8 on human displacement

Draft principle 8 contains provision for human displacement drafted as a recommendation in Part I. The provision clearly outlines the close nexus between displacement and protection of environment, and finds support, inter alia, in the UNHCR Environmental Guidelines and the 2009 Kampala Convention. Notwithstanding its non-binding nature, this draft principle is a positive development for NIACs as they have been reported to cause ‘the most important effects in terms of displacement’ (para 40).

(ii) Draft principle 10 on corporate due diligence

Draft principle 10 lies at the intersection of armed conflict, environment, and private-sector activity, and provides that:

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

The gist of the principle is to encourage the state – where the corporation is registered or situated – to provide due diligence obligations with respect to the protection of the environment and human health. The basis for this is found in a series of normative frameworks that have been characterized as ‘voluntary’ (paras 30 – 35) but also mandatary with limited reach identified only in the US (para 35) and the EU (paras 36-7). Accordingly, the provision has been drafted as a recommendation applicable in all phases of the conflict.

(iii) Draft principle 11 on corporate liability

This principle urges states to enhance access to adequate procedures to ensure that corporations can be held liable for environmental harm. In addition, states should ensure that responsibility can also be attributed to the corporate entities with de facto control of the operations. The draft principle thus entrenches extra-territorial jurisdiction over corporate activities, but also jurisdiction over economically integrated corporations.

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.

The principle is placed in Part I as a general recommendation to states. It is worth mentioning that notwithstanding its non-binding nature, draft principles 10 and 11 generated extensive comments in the plenary session. On the one hand, some ILC members expressed suspicion as to the full extent of their legal and political impact, their prescriptive nature and the reluctance of many states to accept expansive extraterritorial jurisdiction in civil matters. Others, on the other hand, welcomed and underscored the importance of such principles with slight amendments. Consequently, the draft principles were kept, but their wording has been changed. For instance, the original phraseology proposed in the report (‘necessary.. measures to ensure’) has been replaced by the notion of ‘appropriate …measures aimed at ensuring’ which signifies lesser normative value.

(iv) Draft Principle 18 on prohibition of pillage

Draft principle 18 forms part of Part II and is simply repeating lex lata of IAC and NIAC, but also national legislation and military manuals. However, while the provision applies the prohibition in all theatres of war, it carries significant practical consequences in NIACs because of its intrinsic connection to the question of ownership of natural resources. For example, the well-established right of permanent sovereignty over natural resources would generally allow a national liberation movement representing “people” who exercise their right to self-determination to legally exploit natural resources, but not to armed groups operating out of the colonial context. Thus the question is: can armed groups, who exercise de facto control over a part of state’s territory, legally exploit the natural resources of that territory for the benefit of the local population for whom they fight? A straightforward interpretation of the law would always qualify such acts as illegal. Herein lies – as Professor Sassoli has argued elsewhere – the ‘inherent inequality’ of the parties in NIACs and the uneasiness to use analogies from IACs to NIACs.

Conclusion

Environmental protection in NIACs is an immensely important topic as this aspect of armed conflict has suffered from a particular dearth of legal attention. A quick glimpse into the work of the ILC reveals the limitations for a systemic legal regulation. First, environmental concerns in NIACs are scattered among different legal regimes which moreover have anthropocentric nature and different normative values. Second, this endeavor is part of a larger challenge for international lawyers to deal with NSAs under the traditional categories of state-centric international law. The content and consequences of such rules are therefore less clear. Third, establishing legal responsibility for NSAs in a more systematic way remains one of the biggest challenges for the international community.

That being said, the work of the Special Rapporteur shows openness and progressiveness in navigating through such diverse legal terrain to clarify and consolidate the normative framework for different types of NSAs. Moreover, an important contribution has been made by expanding the protective scope for the environment in armed conflicts by conflating the law of war and the law of peace. It is to be seen, however, to what extent the final outcome will contribute to the development of lex ferenda.