Law Protecting Environment from War to Get Huge Boost this Year

Doug Weir, Conflict and Environment Observatory

In 2013, the United Nations’ International Law Commission (ILC) began work on the progressive development and codification of legal principles aimed at strengthening the protection of the environment in relation to armed conflicts, or PERAC. In June, the Commission provisionally adopted 28 draft principles. These principles will now head to the UN General Assembly for comment by governments before their expected adoption in 2021. As human health and livelihoods are wholly dependent on the environment, the PERAC principles are as much a humanitarian initiative as they are an environmental one.

It has been a marathon exercise to reach this stage. It has involved two Special Rapporteurs, five 100-page reports, and lengthy debates within the ILC and in the General Assembly’s Sixth Committee, which addresses legal questions. Along the way it has benefitted from the input of a huge number of experts. The Conflict and Environment Observatory (CEOBS) and its predecessor organisation have followed and contributed to the process from its inception. It’s fair to say that the PERAC initiative is the most significant development in how international law addresses the environmental dimensions of armed conflict since the 1970s.

In the wake of the Vietnam War, and its orgy of environmental destruction wrought by defoliants, napalm, weather modification, carpet bombing, and the mechanical clearance of forests, international humanitarian law (IHL) made its first real effort to tackle the environmental impact of conflicts. Through Additional Protocol I to the Geneva Conventions and the Environmental Modification Convention (ENMOD) states agreed to place limits on harm and to restrict using the environment as a weapon. As it was, IHL’s thresholds for what would constitute unacceptable damage were set too high, and ENMOD’s dystopian Cold War fantasies about weaponizing the environment didn’t come to pass.

Over the next three decades, conflicts tested the limits of the weak protection afforded to the environment during conflicts: the burning oil wells of Kuwait; the deliberate bombing of oil and industrial facilities in Serbia and Lebanon; the occupation in Palestine; and the growth in the exploitation of natural resources in Africa’s civil wars. Precedents were set, like that of the UN Compensation Commission, and practice developed, such as the emergence of UN-led post-conflict environmental assessments and the increasing use of the environmental cooperation and capacity-building as part of peace processes.

An oil storage facility near Ras Lanuf, Libya, burns after being damaged in fighting between armed groups.
Credit: NASA, 2016.

In 2009, UN Environment published a report on the state of legal protection for the environment. It found a fragmented landscape, where key standards were undefined and where a lack of case law had limited implementation and compliance. The report recommended that the ILC take up the topic, to try and make sense of the law and to draw out key principles and norms. The ILC adopted the topic in 2011, and from the outset its first Special Rapporteur decided on taking a temporal approach to the law, dealing with the different phases of armed conflict separately. IHL provides limited protection during conflicts, but what happens before and after is also of critical importance for environmental protection. This approach also gave the ILC greater latitude to utilize international environmental and human rights law principles—something that remains a point of tension with a few states.

While the draft principles that apply during conflict broadly reflect existing IHL norms, one of the most intriguing aspects of the ILC’s work on PERAC is that many of the general principles and those applicable before or after conflict are informed by state practice, and by the practice of international organizations. While the ILC’s handling of IHL’s provisions during conflict has been relatively conservative, in other areas the draft principles are quietly radical. For example, three principles on environmental protection in situations of occupation that were provisionally adopted last year represent one of the most interesting developments in occupation law since the early 20th century.

Points of contention with states remain. For example, the US has objected to PERAC’s remnants of war framing which covers obligations to address the “toxic and hazardous” remnants of war. The US claims that this framing, which merges toxic and explosive remnants, does not reflect the obligations under Convention on Conventional Weapons Protocol V on explosive remnants of war, which is true. However, it does reflect the recent practice of the US in financing work to address dioxin contamination from the use of Agent Orange in Vietnam. Moreover, it also echoes the holistic approach taken to “material remnants of war” in the 1970s before civil society activism pushed explosive remnants of war to the fore.

Given the massive scope of the environment, and even with 28 draft principles, gaps remain. The handling of the role of non-state armed groups in damaging the environment is underdeveloped—although this is as much a reflection of the current state of the law as anything else. The related issues of compensation and liability for environmental damage—something that could have a valuable deterrent effect, and which are core norms in international environmental law—are vague. And, from the outset, the PERAC initiative has never addressed the environmental impact of weapons—you can thank sensitivities over nuclear weapons for that.

Nevertheless, if they’re adopted by states, the draft principles will be a huge step forward. Indeed, this will be a big year for PERAC. Not only are the draft principles receiving their first reading as a whole in the ILC and the Sixth Committee, but in December, the International Committee of the Red Cross (ICRC) will launch updated environmental guidelines for militaries. Their original guidelines were published in 1992 in the wake of the Gulf War and received a frosty reception from states. The updating process has mirrored that of the ILC’s PERAC work, and the new guidelines are expected to be a much more substantial document than the earlier version. The primary focus will be on IHL during conflicts.

So, what comes next? After the UN General Assembly Sixth Committee debate finishes in November, states and others will have a year to comment on the ILC’s principles. Tweaks are likely to the principles and to the accompanying commentaries. They will then go through a second reading in the ILC and Sixth Committee before hopefully being adopted by the General Assembly in 2021. It’s worth noting that the ILC can propose new conventions, or articles, both of which have more legal force than principles. But because of the nature of the topic, neither of the two Special Rapporteurs supported either of those outcomes, while some states, such as the UK, urged the ILC to opt for non-binding guidelines instead.

The lack of enthusiasm demonstrated by a minority of influential states suggests that the implementation of the PERAC principles will be an uphill battle. History, and the current state of IHL compliance, suggests that the ICRC guidelines will likely face similar problems. Nevertheless, the two documents will provide standards against which to benchmark the conduct of states. They will provide much-needed visibility for the environment as a victim of conflicts and creative a normative foundation upon which the international community can build. Critically, PERAC has also shown how IHL, and the protection of people and the environment, can be enhanced with the addition of norms from environmental and human rights law—something that is also highly relevant to humanitarian disarmament more generally.