Draft Principles on Protection of the Environment In Armed Conflict

by

, ,
| Jan 16, 2024

Draft principles

Editors’ Note: This post is derived from a presentation given at the 2023 Israel Defense Forces Military Advocate General’s 4th International Conference on the Law of Armed Conflict.

Global challenges that threaten the environment are more and more top of mind. Current environmental challenges are also expected to increasingly impact military operations and at times exacerbate the effects of armed conflicts. Hostilities themselves can cause serious damage to the environment. This includes loss of significant flora and fauna, water pollution, and risk of spills, to name a few.

When the key instruments of the conventional Law of Armed Conflict (LOAC) were drafted in the aftermath of the Second World War, threats posed by phenomena like climate change were not the prominent global concerns that they are today. As the topic receives greater attention in the international legal community,  efforts to examine and assess the legal mechanisms that protect the environment during armed conflict are important and welcomed.

One such effort is the “Draft principles on protection of the environment in relation to armed conflicts” (Draft Principles), which were adopted by the International Law Commission (ILC) in 2022.

The Adoption of the Draft Principles by the ILC

The ILC’s purpose, according to its statute is to “[promote] the progressive development of international law and its codification” (art. 1). In 2013 and 2017, the ILC appointed special rapporteurs Ambassador Marie Jacobsson and Ambassador Marja Lehto to address the protection of the environment in relation to armed conflicts. During the drafting process, the ILC sought written comments and observations and received responses from 23 countries and 13 international organizations and other entities, raising various concerns with the Draft Principles.  After nearly a decade of work on the subject, at the ILC’s 73rd session in 2022, the Commission adopted the Draft Principles.

The purpose of the Draft Principles is to “enhanc[e] the protection of the environment in relation to armed conflicts, including through measures to prevent, mitigate and remediate harm to the environment” (Draft Principle 2). The 27 Draft Principles and preamble address the protection of the environment before, during, and after an armed conflict.

We welcome this recent work of the ILC as an important contribution to the discourse on this issue. We also acknowledge the key role the ILC plays in the maintenance and strengthening of the international rules-based order. That said, the purpose of this post is to respectfully highlight three areas where the Draft Principles would have benefited from additional rigour.

The Draft Principles Do Not Distinguish between Lex Lata and Lex Ferenda

The General Commentary provides that “[t]he present set of draft principles contains provisions of different normative value, including those that can be seen to reflect customary international law [CIL], and those of a more recommendatory nature.” However, in their final form, individual draft principles themselves create ambiguity by not clearly distinguishing between existing legal obligations, or lex lata, and recommendations aimed at the progressive development of the law, or lex feranda.

Unfortunately, a number of draft principles—even when read together with their commentaries—fail to make clear their source in law, be it treaty, CIL or both (for a different perspective, see here).

For instance, Draft Principle 7 appears to set out a legal obligation, providing that “States and international organizations involved in peace operations established in relation to armed conflicts shall consider the impact of such operations on the environment and take, as appropriate, measures to prevent, mitigate and remediate the harm.” This principle does not reflect CIL or any treaty obligation. In its written observations, Canada recommended that the verb “shall” be amended to “should.” Germany, Japan, the Netherlands and the United States shared this concern. As the United States pointed out, “there is no treaty provision cited in the commentary, nor does the commentary explain how this obligation reflects [CIL].” Of note, the commentary to Principle 7 only references non-binding policy documents adopted by the EU, the UN, and NATO.

To ensure a greater impact of its findings and more dissemination of its final products, the ILC should carefully consider comments received from States, especially where there is shared disagreement among several States.

The Draft Principles Conflate LOAC with other Bodies of International Law

In the General Commentary, the ILC notes that it prepared the final document “bearing in mind that [LOAC], where applicable, is lex specialis,” and proceeded on the notion that “other rules of international law, to the extent that they do not enter into conflict with it, also remain applicable.” However, as pointed out by France, “while the applicability of treaties relating to the international protection of human rights or the international protection of the environment cannot be excluded in principle, their applicability must be assessed on  a case-by-case basis, in the light of the provisions of the treaties and the intentions of the drafters.”

It is important to avoid creating confusion about the extent of the obligations of parties to an armed conflict by blurring the sources of law. Although IHRL and IEL may continue to apply during an armed conflict, obligations under these legal regimes would properly be interpreted in accordance with obligations arising under LOAC, which is the lex specialis during armed conflict (Nuclear Weapons Advisory Opinion, para. 25). Echoing Canada’s concerns on the matter, Israel emphasized in its comments to the ILC that blurring the distinctions between the different branches of international law creates several difficulties, such as the textual merging of rules from different regimes. This should be avoided (for a different perspective, see here).

The Draft Principles Do Not Distinguish Law Applicable during International Armed Conflicts (IACs) and Non-International Armed Conflicts (NIACs)

In the absence of corresponding State practice and opinio juris, the Draft Principles should not present treaty obligations applicable during an IAC as customary obligations applicable during a NIAC. This impacts the coherence of the Draft Principles, especially in Part Three, where the principles are based on specific provisions of LOAC treaties, principally those found in Additional Protocol I (AP I) to the Geneva Conventions (specifically, arts 35(3) and 55). There appears to be no consensus among States as to whether these specific legal protections have attained the status of CIL. As such, they would only clearly apply to States parties to these conventions during IACs.

For instance, Draft Principle 13, which applies to both IACs and NIACs, deals with the general protection of the environment during armed conflict. It uses binding terms to: (i) “require that care shall be taken to protect the environment against widespread, long-term and severe damage;” and (ii) “prohibit . . . the use of methods and means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the environment.” It is derived from art 55 of AP I, which uses the same language but applies only to IACs and which has not attained customary status. There is currently insufficient evidence of State practice and opinio juris to conclude otherwise. Notably, Additional Protocol II, applicable during NIACs, does not contain a prohibition like that found in AP I.

The ILC should have clarified this distinction between the general protection LOAC affords to the environment in IACs and NIACs, and Draft Principle 13(2) should have clearly articulated that it only applies during IACs.

Conclusion

Given the existential threats posed to the environment, States, practitioners, and scholars should welcome—as we do—the ILC’s efforts to enhance the protection of the environment in relation to armed conflicts. However, the important work done in adopting the Draft Principles remains unfinished; it is now up to States – who, after all, are the makers of international law, to clarify their views. It is also for the ILC to both continue to engage States on the important issues that it considers, but, more importantly, to take those views further into account when adopting its products.

***

BGen Rob Holman is Canada’s sixteenth Judge Advocate General. He serves as legal advisor to the Governor General, the Minister of National Defence, DND and the CAF and commands the Office of the Judge Advocate General.

LCdr Amélie Aubut is a Legal Officer in the Directorate of International and Operational Law of the Office of the Judge Advocate General in the Canadian Armed Forces.

Capt Irina Cristescu is a Legal Officer in the Directorate of International and Operational Law of the Office of the Judge Advocate General in the Canadian Armed Forces. 

 

 

Photo credit: Lance Cpl. Dengrier M. Baez