So many states spoke on PERAC that we couldn’t fit it in a blog

The Conflict and Environment Observatory

(December 2019) — Below you’ll find our coverage and analysis of the most recent PERAC [Protection of the Environment in Relation to Armed Conflict] debate in the UN General Assembly’s Sixth Committee. It’s taken us longer than usual to put together because more states spoke in the debate than ever before – 49.

This has also meant that we’ve had to shift from the normal blog format to a report. The increasing number of states engaging with the process mirrors the growing profile of conflict and the environment more broadly, something that we have witnessed in numerous areas of our work over the last 18 months.

With the ILC’s work on PERAC nearing its conclusion, our thoughts are now turning to the implementation of its draft principles – more on that at a later date.

CEOBS hosted its first-ever Research Intern this autumn. Nina Lesikhina joined us from Central European University via the Erasmus programme and has been undertaking research on Russian policy on conflict and the environment for us.

Report: 2019’s UN General Assembly Debate on the Protection of the Environment in Relation to Armed Conflicts

The Conflict and Environment Observatory

Summary

Back in August, the UN’s International Law Commission adopted 28 draft legal principles on the protection of the environment in relation to armed conflicts. The principles are the result of eight years’ work on a project that aims to plug gaps in how the environment is protected before, during and after armed conflicts. As the project has developed, governments have had a chance to have their say on the Commission’s work at the UN General Assembly each year. In this autumn’s debate, governments had all 28 principles and their commentaries in front of them for the first time. In this report, Stavros Pantazopoulos reviews who said what and what this might mean for the final version of the principles, which are expected to be adopted in 2021.

Highlights

•   The PERAC legal principles, adopted on first reading by the ILC, were well-received by states, with one quarter of the UN membership commenting on them.

•   The ILC’s temporal approach and the preference for ‘principles’ are well-established by now, but a decision on the definition and consistent use of the term ‘environment’ will be made on second reading.

•   States submitted proposals, among others, for the inclusion of additional principles on the responsibility of non-state armed groups and the environmental impact of weapons.

•   The ILC’s work will be completed in 2021, so now is the time for interested parties to submit written comments before 1 December 2020.

Contents

1. Introduction

2. General comments

3. State comments on the principles of general application

4. State comments on the period during armed conflict

5. State comments on the protection of the environment in situations of occupation

6. State comments on the post-armed conflict phase

7. Conclusion and the way forward

1. Introduction

The debate on the International Law Commission’s (ILC) draft principles (DPs) on the Protection of the environment in relation to armed conflicts (PERAC) took place in the UN General Assembly’s Sixth Committee between late October and early November. This report reviews the specific arguments raised by states, as well as their proposals for improving the text of the DPs.

The debate will contribute to the final version of the DPs and their commentaries, as will the written submissions that states, international organisations and others have been invited to provide by December 2020. The ILC will integrate these as it finalises its work on PERAC through the adoption on second reading of the PERAC DPs in its 2021 session.

Our debate coverage begins by highlighting certain remarks that states offered in relation to the general framework of the PERAC principles, before moving on to address the points raised by states by reference to the various temporal phases of the conflict cycle, namely before, during, and after armed conflict. It should be noted that more than a quarter of UN member states have now contributed to the ILC’s PERAC topic. Several states provided quite detailed comments on the PERAC DPs, whereas the majority preferred to dedicate just a few paragraphs in their statements. All in all, the vast majority of commenting states have received the DPs positively and welcomed the progress achieved so far.

2. General Comments

It is important to underline from the outset that the profile of PERAC has been increasing in recent times. It therefore came as no surprise that the majority of states that commented expressed their appreciation for the ILC’s work. These included: Austria, Colombia, Cuba, Egypt, El Salvador, Germany, Greece, Honduras, Italy, Indonesia, Japan, Lebanon, Malaysia, Micronesia, the Nordic countries, Poland, Portugal, Republic of Korea, Romania, Singapore, Slovenia, Thailand, Ukraine and Vietnam. In the same vein, some states also referred to other initiatives relating to PERAC that are currently in progress, such as the ICRC’s Revised Guidelines for the Protection of the Natural Environment in Situations of Armed Conflict, to be launched in 2020 (Slovenia, Cyprus), and the Global Pact for the Environment (Morocco).

The significance of the topic under consideration is further evinced by certain statements showcasing the value attached to the environment. For example, Colombia considers that it is necessary to protect the ecological well-being of the environment as an integral part of the society we inhabit, since natural resources and the environment are fundamental elements in ensuring the restoration and consolidation of peace; Portugal conceives the environment ‘as a common good of all Humanity’ and thus ‘[i]t should […] be a common endeavour of States, international organisations, corporations and individuals to fight environmental degradation and to cooperate in the protection of the environment everywhere and at all times’.

Turning to certain general themes that pervade PERAC, the temporal approach employed by the ILC was widely endorsed – Germany, Italy, Lebanon, Nordic countries, Peru, Portugal, Republic of Korea – although Russia and Japan expressed their preference for placing the focus on the phase during armed conflict. Evidently this temporal approach is now well established. It divides the topic into four parts, covering respectively principles of general application, principles applicable during armed conflict, situations of occupation, and post-armed conflict.

2.1 Co-applicability of Different Legal Regimes

The ILC’s temporal approach not only enables a fuller treatment of PERAC but also raises the question of international humanitarian law’s (IHL) relationship with other branches law, including international environmental law (IEL), as well as the role of international human rights law (IHRL) in enhancing the protection afforded to the environment in relation to armed conflicts. A considerable number of states took an explicit stance on these issues. Austria called for a confirmation that IEL ‘continues to apply during armed conflicts’, while Italy and Greece invited further clarification on how and to what extent general principles and treaty obligations of IEL remain applicable during an armed conflict.

Cyprus, adopted a more critical, but constructive position, and asked for the ‘intrinsic links’ between PERAC and other areas of international law, such as IHL, IEL, and the Law of the Sea (LoS) to be highlighted. For its part, Portugal, being generally very supportive of the ILC’s work on PERAC, approved the incorporation of rules and recommendations drawing from IHRL, LoS, IEL and international criminal law in the text of the DPs. Meanwhile Colombia voiced its determination that IHL must be integrated with IEL, IHRL, LoS, and treaty law. On the contrary, Russia argued that IHL and IEL should not be mixed.

Notably, many states, such as Colombia, Morocco and Slovenia, were eager to explicitly endorse the relevance and continued applicability of IHRL with a view to furnishing increased environmental protection. Armenia pronounced that ‘enhancing […] the scope of the project should entail the international human rights law’ and further referred to the close links between environmental protection and the exercise of economic and social rights, while Portugal stated that ‘[t]he human right to a healthy and sustainable environment calls for positive action on the part of States in the different stages of the armed conflict cycle.’

In stark contrast, the UK, consistent with its interventions in previous years, was of the view that PERAC’s scope should not be expanded to analyse how other areas of international law, and especially human rights, interrelate with it. They also offered the controversial and bewildering proposition that ‘human health does not fall within the parameters of a study on the protection of the environment.’

2.2 Definition of the Environment

On a related note, a handful of states favoured the consistent use of the term ‘environment’ as opposed to the use of the ‘natural environment’ in the DPs: Lebanon, Morocco and Sudan. The DPs that apply during armed conflict draw on the text of Additional Protocol I, which uses the term ‘natural environment’. Those that apply before and after conflict use the term ‘environment’ and it has been agreed that this matter will be revisited during the second reading of the DPs. It is hoped that if the ILC eventually decides to include a definition in the final text, it will opt for the broader concept of ‘environment’, allowing for a more comprehensive treatment of what we understand as the environment – something that also changes over time.

2.3 International and Non-international Armed Conflicts

Another recurring topic, which has formed the object of controversy in previous years, is the comprehensive treatment of armed conflicts, in that the ILC does not differentiate between an international and a non-international armed conflict. The ILC’s approach is that whenever it is imperative to draw such a distinction, the ILC does so in the commentaries of the DPs (see for example the commentaries to DP16 on the prohibition of reprisals). On the one hand, and given the discrepancies between the legal frameworks that apply to international and non-international armed conflicts, it should not come as a surprise that a few states argued in favour of a division between them (Iran and Cyprus – in the form of a question). Having said that, it is important to recall that the ILC is endowed with the authority to both codify and progressively develop the law. Therefore its approach of not differentiating between them, as endorsed by many states (Portugal, the Nordic countries, Sierra Leone and Slovenia) is appropriate.

2.4 Normative Value of the Draft Principles

The last point is intertwined with the normative value of the draft principles. To this end, it should be highlighted, as many states did (Germany, Italy, the Nordic countries, Portugal and the Republic of Korea) that the DPs carry different values, in that they range from legally binding rules to recommendations. The ILC has clarified when each DP corresponds to the codification of international law, or its progressive development. Certain states elected to underline that most of the PERAC DPs form non-binding guidelines (Brazil, Russia and the UK), calling on the ILC to provide more clarity in this regard (US).

Before delving into states’ substantive comments on each DP, it is proper to summarise the two main points of scepticism, and one cautionary note, both shared by more than one state. Firstly, a few states recorded their concerns that the PERAC DPs go beyond existing law and inappropriately use mandatory language (Brazil, Russia, Slovakia and the US). The UK did likewise, using a more diplomatic tone: ‘The United Kingdom welcomes the fact that in its work on this topic the Commission does not seek to modify the law of armed conflict, or the law of occupation’. Secondly, some of these states called on the ILC to deal exclusively with the phase during armed conflict (Japan, Slovakia), or to only address issues pertaining to IHL (Russia). Meanwhile India and Bangladesh both referred to obligations arising from other related international treaties and instruments, urging the ILC not to ‘duplicate the efforts already undertaken’ by these existing regimes.

Colombia argued that in order to protect the environment international humanitarian law must be integrated with other branches of law, such as environmental law, human rights, treaty law and even the law of the sea.

3. State Comments on the Principles of General Application

With respect to DP2 on the purpose of the PERAC DPs, Greece submitted that it should be amended to reflect that preventive measures should aim not only to minimise but also to avoid damage to the environment during armed conflicts. Micronesia viewed DP2 as underscoring the obligation incumbent upon belligerent parties to ‘take all necessary steps to prevent such harmful effects as well as remediate them when they cannot be prevented.’ In relation to DP3 on measures to enhance the protection of the environment, Cuba, Mexico and Morocco highlighted the role of national institutions and frameworks, with the latter two states offering examples from their own practice.

DP4 on the designation of protected zones, which contains a potentially important recommendation for environmental protection, met with approval from Germany, Greece, Mexico, the Nordic countries and Peru. Similarly, Iran envisaged a gap-filling role for DP4 within IHL, while Portugal contemplated it as a vehicle through which the links between cultural heritage and PERAC can be established, noting that this approach favours a ‘systematic and integrated international legal framework on the protection of values and objects that are of significant interest and need to all of Humanity’.

More concretely, Greece proposed that DP4 and its sister DP17, which applies during armed conflicts, ‘should cover also sites whose protected status has not been established by agreement but through decisions of relevant treaty bodies’, referring to the World Heritage List of the 1972 UNESCO Convention. Germany went even further, calling for the adoption of an international treaty along the lines of the 1954 Hague Cultural Property Convention so as to furnish protection to ecologically sensitive areas, rather than in the context of protected emblems.

Estonia suggested that DPs 4 and 17 be merged. They also wondered whether protected zones designated through a means other than an agreement fall within the scope of DP17, given that the latter refers exclusively to this type of designation, whereas DP4 provides for their designation ‘by agreement or otherwise’. In light of these two DPs’ wording, Estonia also questioned whether a zone has to be both of major environmental and cultural importance to benefit from the protection envisaged in DP17. Portugal shared this doubt and therefore advanced an insightful proposal, according to which DPs 4, 13(3), and 17 ‘be harmonized so that the status and protection of a site under international law is respected as long as it is not used as a military object and regardless of how that designation took place, whenever such site has been designated as being of major environmental and cultural importance.’ Rejecting DP4 outright, Russia argued that the concept of ‘protected zones’ – as applied to areas of major environmental and cultural importance – had no basis under IHL, and unjustifiably over-stretched the existing understanding of protected areas.

As has been the case in previous debates, DP5 on the protection of the environment of indigenous peoples had a mixed response. While it was supported by Mexico the Nordic countries and Peru – who added that it is necessary to have the greatest respect for the uses, customs and institutions of the indigenous communities involved – Vietnam observed that ‘the concept of “indigenous people” does not enjoy broad consensus in the context of the law of armed conflicts’, instead preferring the notion of ‘ethnic minorities’. Russia argued that the legal status of indigenous peoples is not relevant for the purposes of the PERAC topic.

In regard to DP6 on agreements concerning the presence of military forces in relation to armed conflict, Morocco highlighted the practical difficulties of including environment-specific provisions in such agreements in light of the urgency surrounding armed conflicts. They also argued that explicitly stipulated environmental protection is not systematically present in conventional practice in either status of forces or status of mission agreements.

The phrasing of DP7 on peace operations met with the disapproval of the US, which found the use of ‘shall’ inappropriate, as it ‘purports to introduce new substantive legal obligations in respect of peace operations.’ Morocco was also sceptical, believing it difficult to allocate any eventual responsibility between an international organisation involved in a peace operation, such as the UN, and its member states. On a more positive note, Slovenia underlined the importance of compliance with such rules.

DP8 on human displacement was added to the PERAC DPs this year and several states expressed their views on it. Importantly, most welcomed the principle: Germany, Greece, India, Lebanon, Mexico, the Nordic countries, Peru, Sierra Leone, Sudan and Ukraine. Greece rightly identified ‘the spirit of solidarity and burden-sharing’ that underpins DP8 and Ukraine and Lebanon, in a very welcome move, called for the inclusion of the areas displaced populations cross to come within its protective scope. Quite importantly, India also considered DP8 as applicable in situations of occupation. Estonia, striking a more cautious note, asked for clarification on whom DP8 addresses, while Malaysia hastened to note that the decision to provide relief and assistance for displaced persons or refugees ‘should be self-judging’. Russia, without being wholly dismissive, construed DP8 as not obliging states to take the appropriate measures, but rather as an appeal to states and international organisations to do so voluntarily.

Another newly adopted principle, DP9 on state responsibility, was also endorsed by the majority of commenting states. Azerbaijan, Cuba (implicitly), Italy, Lebanon, Malaysia, Mexico and Thailand all applauded the inclusion of a DP dealing with the responsibility of states for environmental damage caused in relation to armed conflicts. Going even further, El Salvador brought to the discussion table the topic of liability for acts not prohibited by international law, which potentially generate damage (for our purposes environmental damage) to third parties. Austria not only concurred with DP9 but in a spirit of constructive criticism, proposed the explicit inclusion of ecosystem services within the text of DP9, as had been originally proposed by the ILC’s Special Rapporteur (SR) Dr Lehto in her second report. Slovakia, adopting a more conservative view that fell short of contemporary developments in international law, approached DP9 as a cause of potential confusion and hence, maintained that the general rules on state responsibility would suffice.

As we have reported earlier, DPs 10 and 11 on corporate due diligence and corporate liability respectively, are ground-breaking principles with great potential to increase environmental protection in an area of armed conflict, or in a post-armed conflict situation. Consequently, their positive reception by states was significant. Azerbaijan, Mexico, the Nordic countries, Sierra Leone and Slovenia endorsed both of them, as did Austria with the welcome remark that they should also be applied to private military and security companies. Romania viewed DP10 as reflecting ‘existing conceptual tools rather than creating new ones’. Meanwhile Slovakia, diverting from its generally disapproving attitude towards the PERAC DPs, welcomed DP10, even though it hastened to add that less prescriptive language would be more appropriate. They also expressed doubts about the extension of its scope to post-armed conflict situations.

Others thought that DP11 lay beyond the ambit of the PERAC study. Argentina called for a deeper analysis, given that the normative framework of reference was developed in the context of business and human rights, and that therefore its extension to conflict and the environment was not self-evident. Malaysia voiced its preference for ‘voluntary due-diligence and development of a positive culture of self-regulation’ instead of legislative measures, as enshrined in DPs 10 and 11. The US chided the ILC for singling out corporations and thus portraying them as ‘the only potential bad actors when it comes to non-State activity’. Belarus thought the suggested link between corporate environmental conduct and armed conflict was artificial.

Russia thought it unnecessary to include the two DPs, even though it claimed that states should encourage business enterprises to make a risk assessment for their activity in conflict areas, including on their environmental impact. Vietnam perceived DP11 as ‘a clear indication that not only State but also non-state actors bear the responsibility for environmental damages during armed conflicts’, a topic we will touch upon at the end of this report. Finally, Cyprus proposed an amendment of the text of DPs 10 and 11, to not only bring subsidiaries of corporations or business enterprises within their scope, but also ‘affiliate entities’, acting under the direction or control of another corporate entity within the same corporate structure.

Portugal took the view that because the environment is a common good of all humanity, protecting it should be a common endeavour of all states, international organisations, corporations and individuals.

4. State Comments on the Period during Armed Conflict

DP 12 on the Martens clause with respect to PERAC was another newly adopted principle that generally attracted positive reactions, it was welcomed by Mexico, the Nordic countries, Peru, and Lebanon – with the additional proposal that it could be placed under Part Four covering situations of occupation. Germany invited a clarification ‘that the inclusion of the principle of humanity shall not lead to a humanization of the concept of “nature”, but also cover cases where the destruction of the environment endangers vital human needs’.

At the other end of the spectrum, Belarus dismissed DP12, appealing to the original formulations of the Martens clause, which mention combatants and civilians as the beneficiaries of its protective operation rather than the environment. Russia joined this reasoning by claiming that this clear attempt to expand the remit of the Martens clause’s application may weaken its aim of protecting people.

DPs 13-16 concern the general and concretised application of IHL norms to the environment and have been debated at length in previous UNGA Sixth Committee sessions. Since they are now well-accepted, it suffices only to highlight certain specific comments advanced by states during this year’s session. In an important move, Austria stated that ‘the draft principles should expressly confirm that international environmental law continues to apply during armed conflicts’.

Along the same lines of envisioning a complementary, protective role for IEL’s application during armed conflict, Greece instructed that the duty of care under DP13(2) should be considered together with the no-harm principle [of IEL], since they both include a due diligence standard of conduct. They then went further to identify ‘a link between the rule concerning precautions during attack so as to avoid or minimize collateral damage to the environment, and the due regard clause of Rule 44 of the ICRC Study …, which provides for a coordinated application of that rule and of the precautionary principle of general environmental law.’ In so doing, Greece emerged as a firm proponent of the integrated application of IHL and IEL.

Discussing DPs 13 and 16, Germany highlighted ‘the intrinsic value of the natural environment in and of itself’, while Peru expressed its endorsement for both DPs 14 and 15. Although Belarus approved of the application of IHL principles for environmental protection during armed conflict, it voiced its objection to elevating the goal of environmental protection within IHL. El Salvador found occasion to highlight the nature of the environment as a transnational and even universal public good (‘bien público transnacional e incluso universal’). However, the UK reiterated its consistently held position that the prohibition against environmental reprisals,¹ as provided for in DP16, ‘does not reflect the current state of customary international law and reservations by States to article 55(2) of Additional Protocol 1 to the Geneva Conventions.’

For DP17 on protected zones, which was explicitly approved by Peru, see DP4 above.

DP18 prohibits the pillage of natural resources and, as the commentaries clarify, applies both during armed conflict and in situations of occupation. It is notable that it was met with widespread support in the debate, from Greece, India, Lebanon, Malaysia, Mexico, Peru, Slovenia, Sudan, and Ukraine, with Iran noting that it also applies after armed conflicts. Against the broader background of the illegal exploitation of natural resources in conflict, Armenia urged the ILC to explicitly refer ‘to the economic and social rights of the people’, in line with a rights-based approach. Cyprus, with part of its territory still under occupation, wondered ‘how are reparations to be made for the pillaging of an occupied state’s resources or for the irreparable damage to its environment’.

Finally, DP19 on environmental modification techniques, was positively received by Malaysia, Mexico and by Romania, who argued in favour of its applicability beyond the in bello phase. Malaysia requested clarification on its application in the context of a non-international armed conflict.

The UK was so determined to reject a role for human rights law in the PERAC study that it sought to argue that consideration of human health impacts is irrelevant to a study on the protection of the environment.

5. State Comments on the Protection of the Environment in Situations of Occupation

As the commentaries to the three DPs that apply in situations of occupation were adopted by the ILC this year, many states offered comments on them. Austria, Italy, the Nordic countries, Peru and Slovakia expressed their appreciation for the ILC tackling environmental protection in situations of occupation. Vietnam welcomed the integration of ‘the law on occupation, international humanitarian law and international environmental law’. Argentina welcomed consideration of the principles of permanent sovereignty, and of self-determination, in that they circumscribe the administration and use of natural resources by occupying powers.

The relationship between international organisations and the law of occupation was also taken up by states, as had previously been the case between ILC members in its plenary. Belarus invited further consideration of this. Whereas El Salvador, acknowledging that the term ‘Occupying Power’ can encompass both states and international organisations, nevertheless suggested that the term ‘occupier’ or ‘belligerent occupier’ is more opportune to reflect the progressive understandings of contemporary international law (‘con el objeto de adoptar las progresivas connotaciones del derecho internacional contemporáneo’, emphasis in the original).

As was the case in last year’s debate, the US was generally dismissive of the DPs applicable in situations of occupation, in that they ‘go beyond what is required by the law of occupation’. In a very important step, Cyprus engaged meaningfully with the DPs and, drawing on its first-hand experience, provided very detailed comments touching upon the legality of occupations and the practices established thereunder. Singling out only one question to showcase the complexity of the issue, Cyprus argued that: ‘Shouldn’t we exclude out of hand any possibility for the occupying power to make any use of resources and confine its responsibility in environmental protection stricto sensu?’

Turning to the occupation-specific DPs, El Salvador read DP20(2) as clearly reflecting the interrelationship between IEL and IHRL adding, in addition that the protection of the healthy environment per se becomes a human right in itself. Azerbaijan, another state with first-hand experience of occupation, commented with respect to DP20 that ‘no right can be exercised at the expense of the violation of the rights of others’, citing property rights and the protection of the environment and natural resources of the occupied territory.

Four states proffered their views on DP21, which is entitled sustainable use of natural resources. Italy recommended further analysis of states’ obligations arising from the principles of self-determination and permanent sovereignty over natural resources, and for the amendment of DP21 so that it reflects ‘the need to undertake any exploitation of natural resources in accordance with the wishes and for the benefit of the local population’. For its own part, Greece suggested ‘that the commentary should include a reference that States should abstain from recognizing situations of illegal occupation and engaging in economic or other forms of relationship with the occupying power.’ Cyprus wondered how the prohibition of exploiting natural resources to sustain war economies or for personal gain can be ensured, and Azerbaijan recommended that DP21 be considered in combination with the illegal exploitation of natural resources and with the DPs on corporate due diligence, and on pillage.

Ukraine encouraged the ILC to develop a new principle on the criminal responsibility of members of non-state armed groups for environmental damage prior to the second reading of the draft principles.

6. State Comments on the Post-armed Conflict Phase

The fifth part of the ILC’s PERAC study deals with the post-armed conflict phase. Slovakia called for a ‘moderate approach’, whereas the Nordic countries expressly welcomed the six DPs relevant to this phase. With respect to DP23 on peace processes, Slovenia viewed it as encapsulating existing practice. In relation to DP24 on sharing and granting access to information, Slovakia cautioned against its broad scope, asking for specific examples of categories of information falling within its ambit. DP25 provides for the cooperation of relevant actors towards conducting post-armed conflict environmental assessments and taking remedial measures, and was explicitly endorsed by Thailand and the Nordic countries.

DP26 on relief and assistance was the last of the eight new DPs that were proposed and adopted this year and understandably attracted much interest. Ukraine argued in favour of the original wording of the principle, as proposed by the SR, preferring the stronger formulation of ‘should’ instead of ‘encouraging’. Lebanon also subscribed to this view, going slightly further by suggesting replacing the softer phrasing ‘may consider’ with the more prescriptive ‘should consider’. Mexico and Greece welcomed DP26, with Greece proposing the addition of a paragraph stipulating that DP26 is without prejudice to DP9 on state responsibility; this proposal was seconded by Lebanon.

Morocco welcomed the spirit of international solidarity reflected in DP26 and recommended that its implementation should be dependent on the level of economic development that each state enjoys, the diversity of conditions and the specific needs of developing countries. This echoed the IEL principle of common but differentiated responsibilities. Consequently, it is little wonder that Malaysia referred explicitly to this IEL principle and additionally called on the ILC ‘to establish a more concrete 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.’ The last statement foregrounds the importance of victim assistance in the context of PERAC, something that should not be neglected prior to the adoption of the DPs on second reading in 2021.

DP27 deals with remnants of war and DP28 with remnants of war at sea. Slovenia underlined the importance of removing remnants of war, citing examples of its own practice. Germany supported both DPs, proposing to reword DP28 so that the obligation to act outside territorial waters arises only ‘after an environmental impact assessment has concluded that action is viable, necessary and appropriate in order to minimize environmental harm.’ Greece supported the explicit inclusion of a reference to the United Nations Convention on the Law of the Sea in the text of DP28, as part of the applicable legal framework. Sudan underscored the importance of coastal states’ cooperation in removing remnants of war at sea. On a final note, the US noted that DP27 expands the obligations under Protocol V of the Convention on Certain Conventional Weapons and once again challenged the term ‘toxic remnants of war’, as found in DP27’s commentary, arguing that it ‘does not have a definition under international law’.

Lebanon argued that the draft principle on relief and assistance should be strengthened, suggesting a more prescriptive wording.

7. Conclusion and the Way Forward

One of the issues touched upon by several states in their statements was the role of non-state actors, and especially their environmental obligations and the responsibility of non-state armed groups that cause environmental damage. Mexico the Nordic countries, Portugal, and Germany expressed their appreciation for the analysis the SR had undertaken on the role of non-state actors. Egypt also referred to the responsibility of non-state actors for environmental damage in relation to armed conflict. The Republic of Korea invited the ILC ‘to deal with the international obligations of organized armed groups to hold them accountable for their conducts under international law for the progressive development of international law.’

In the same vein, it is noteworthy that Ukraine voiced its support for ‘a draft principle on the criminal responsibility of members of non-state armed groups for environmental damage in relation to armed conflicts’. Meanwhile Iran suggested ‘that the acts of non-state actors/insurgents in a non-international armed conflict that causes damage to the environment entails the individual criminal responsibility of that non-state actor/insurgent under the national legal system.’

Acknowledging the complexities of the issue, Romania called for the development of ‘systematic rules’ to this end. Finally, Belarus stated that the state’s lack of capacity to ensure compliance on the part of the territory under the effective control of a non-state armed group may be a reason to relieve the state of responsibility in the context of a non-international armed conflict.

Evidently, many states appear preoccupied with the responsibility of non-state actors, in particular of non-state armed groups, for causing environmental damage during armed conflict. The matter was also raised by several ILC members during its plenary last summer. Accordingly, it seems appropriate that the ILC should respond and address the topic in more detail, perhaps by adopting a new DP that deals exclusively with the role and responsibility of non-state actors and/or non-state armed groups in PERAC.

On another note, three states brought the environmental impact of weapons to the table. Cuba urged the ILC ‘to address the impact of all types of weapons on the environment’, with emphasis placed on nuclear weapons, at the same time inviting the international community to work towards the general recognition of nuclear weapons’ incompatibility with IHL through the lens of environmental protection. Lebanon meanwhile asked for a separate DP modelled after article 36 of Additional Protocol I, which provides for the review of weapons. And Colombia seconded this call, proposing that the DPs include a request for states and non-state armed actors to review the environmental impact of the weapons to determine whether their employment will be prohibited by any international law norm.

States, international organisations and others have been invited by the ILC to submit their written comments on the entire set of DPs by the 1st of December 2020, and many states have already committed to do so. It is hoped that even more states will offer their insights, as this will be the last chance to have their comments integrated and reflected in the final text of the PERAC DPs and their commentaries. Understandably, only a few changes in the commentaries, and even fewer in the wording of the DPs, are expected. Having said that, there is still room for improvement and, with the PERAC topic gaining momentum in the agenda of the international community, now is the right time to act. The legal processes relating to PERAC are ongoing and all interested actors, including civil society, should grasp this opportunity and contribute their expertise and experience, thus enhancing the protection of the environment in relation to armed conflicts, in line with the purpose of the PERAC study.

Stavros Pantazopoulos is CEOBS’ Legal and Policy Analyst.

The Conflict and Environment Observatory, CEOBS, The Chapel, Scout Road, Mytholmroyd, Hebden Bridge, West Yorks HX75HZ, United Kingdom.

Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.