Chapter VI Protection of the environment in relation to ...

Chapter VI Protection of the environment in relation to armed conflicts

A. Introduction

58. At its sixty-fifth session (2013), the Commission decided to include the topic "Protection of the environment in relation to armed conflicts" in its programme of work, and appointed Ms. Marie G. Jacobsson as Special Rapporteur.945

59. The Commission received and considered three reports from its sixty-sixth session (2014) to its sixty-eighth session (2016). 946 At its sixty-sixth session (2014), the Commission considered the preliminary report of the Special Rapporteur.947 At its sixtyseventh session (2015), the Commission considered the second report of the Special Rapporteur 948 and took note of the draft introductory provisions and draft principles, provisionally adopted by the Drafting Committee, which were subsequently renumbered and revised for technical reasons by the Drafting Committee at the sixty-eighth session.949 Accordingly, the Commission provisionally adopted draft principles 1, 2, 5, 9, 10, 11, 12 and 13, and commentaries thereto, at that session.950 At the same session, the Commission also considered the third report of the Special Rapporteur, 951 and took note of draft principles 4, 6 to 8, and 14 to 18 provisionally adopted by the Drafting Committee,952 without provisionally adopting any commentaries.

60. At its sixty-ninth session (2017), the Commission established a Working Group to consider the way forward in relation to the topic, as Ms. Jacobsson was no longer a member of the Commission.953 The Working Group, chaired by Mr. V?zquez-Berm?dez, had before it the draft commentaries prepared by the Special Rapporteur, even though she was no longer a member of the Commission, on draft principles 4, 6 to 8, and 14 to 18 provisionally adopted by the Drafting Committee at the sixty-eighth session, and taken note of by the Commission at the same session. The Working Group recommended to the Commission the appointment of a new Special Rapporteur to assist with the successful completion of its work on the topic.954 Following an oral report by the Chair of the Working Group, the Commission decided to appoint Ms. Marja Lehto as Special Rapporteur.955

61. At its seventieth session (2018), the Commission established a Working Group, chaired by Mr. V?zquez-Berm?dez, to assist the Special Rapporteur in the preparation of the draft commentaries to draft principles 4, 6 to 8, and 14 to 18, provisionally adopted by the Drafting Committee at the sixty-ninth session, and taken note of by the Commission at the same session.956 The Commission provisionally adopted draft principles 4, 6 to 8, and 14 to 18, and commentaries thereto, at that session.957 Also at the seventieth session, the

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945 The decision was made at the 3171st meeting of the Commission, on 28 May 2013 (see Yearbook ...

2013, vol. II (Part Two), p. 78, para. 167). For the syllabus of the topic, see Yearbook ... 2011, vol. II (Part Two), annex V. 946 Documents A/CN.4/674 and Corr.1 (preliminary report), A/CN.4/685 (second report) and

A/CN.4/700 (third report). 947 Official Records of the General Assembly, Sixty-ninth Session, Supplement No. 10 (A/69/10), chap.

XI. 948 Ibid., Seventieth Session, Supplement No. 10 (A/70/10), chap. IX. 949 Documents A/CN.4/L.870 and A/CN.4/L.870/Rev.1. 950 Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10), para.

188. 951 Ibid., chap. X. 952 Document A/CN.4/L.876. 953 Official Records of the General Assembly, Seventy-second Session, Supplement No. 10 (A/72/10),

para. 255. 954 Ibid., para. 260. 955 Ibid., para. 262. 956 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10), chap.

IX. 957 Ibid., para. 218.

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Commission considered the first report of the Special Rapporteur958 and took note of draft principles 19, 20 and 21, which had been provisionally adopted by the Drafting Committee.959

B. Consideration of the topic at the present session

62. At the present session, at its 3455th meeting on 1 May 2019, the Commission provisionally adopted draft principles 19, 20 and 21, which had been provisionally adopted by the Drafting Committee at the seventieth session.

63. At its 3464th to 3471st meetings, from 15 May to 27 May 2019, the Commission considered the second report of the Special Rapporteur (A/CN.4/728).

64. In her second report, the Special Rapporteur addressed certain questions related to the protection of the environment in non-international armed conflicts, with a focus on how the international rules and practices concerning natural resources may enhance the protection of the environment during and after such conflicts. The second report also addressed certain questions related to the responsibility and liability of States and non-State actors. The Special Rapporteur thus proposed seven draft principles.960

65. At is 3471st meeting, on 27 May 2019, the Commission referred draft principles 6 bis, 8 bis, 13 bis, 13 ter, 13 quater, 13 quinquies, and 14 bis, as contained in the second report of the Special Rapporteur, to the Drafting Committee, taking into account the plenary debate in the Commission.

66. At its 3475th meeting, on 8 July 2019, the Chair of the Drafting Committee presented961 the report of the Drafting Committee on "Protection of the environment in relation to armed conflicts" (A/CN.4/L.937). At the same meeting, the Commission provisionally adopted the entire set of the draft principles on protection of the environment in relation to armed conflicts on first reading (see section C.1 below).

67. At its 3504th to 3506th meetings, on 7 and 8 August 2019, the Commission adopted the commentaries to the draft principles on protection of the environment in relation to armed conflicts (see section C.2 below).

68. At its 3506th meeting, on 8 August 2019, the Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the draft principles on protection of the environment in relation to armed conflicts (see sect. C below), through the SecretaryGeneral, to Governments, international organizations, including from the United Nations and its Environment Programme, and others, including the International Committee of the Red Cross and the Environmental Law Institute, for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 December 2020.

69. At its 3506th meeting, on 8 August 2019, the Commission expressed its deep appreciation for the outstanding contribution of the Special Rapporteur, Ms. Marja Lehto, which had enabled the Commission to bring to a successful conclusion its first reading of the draft principles on protection of the environment in relation to armed conflicts. The Commission also reiterated its deep appreciation for the valuable contribution of the previous Special Rapporteur, Ms. Marie G. Jacobsson, to the work on the topic.

958 Document A/CN.4/720. 959 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10), para.

172. 960 See second report of the Special Rapporteur (A/CN.4/728): draft principle 6 bis (Corporate due

diligence), draft principle 8 bis (Martens Clause), draft principle 13 bis (Environmental modification techniques), draft principle 13 ter (Pillage), draft principle 13 quater (Responsibility and liability), draft principle 13 quinquies (Corporate responsibility), and draft principle 14 bis (Human displacement). 961 The statement of the Chair of the Drafting Committee is available from the website of the Commission ().

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C. Text of the draft principles on protection of the environment in relation to armed conflicts, adopted by the Commission on first reading

1. Text of the draft principles

70. The text of the draft principles adopted by the Commission on first reading is reproduced below.

Protection of the environment in relation to armed conflicts

Part One Introduction

Principle 1 Scope

The present draft principles apply to the protection of the environment before, during or after an armed conflict.

Principle 2 Purpose

The present draft principles are aimed at enhancing the protection of the environment in relation to armed conflict, including through preventive measures for minimizing damage to the environment during armed conflict and through remedial measures.

Part Two [One] Principles of general application

Principle 3 [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.

Principle 4 [I-(x), 5] Designation of protected zones

States should designate, by agreement or otherwise, areas of major environmental and cultural importance as protected zones.

Principle 5 [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.

Principle 6 [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.

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Principle 7 [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.

Principle 8 Human displacement

States, international organizations and other relevant actors should take appropriate measures to prevent and mitigate environmental degradation in areas where persons displaced by armed conflict are located, while providing relief and assistance for such persons and local communities.

Principle 9 State responsibility

1. An internationally wrongful act of a State, in relation to an armed conflict, that causes damage to the environment entails the international responsibility of that State, which is under an obligation to make full reparation for such damage, including damage to the environment in and of itself.

2. The present draft principles are without prejudice to the rules on the responsibility of States for internationally wrongful acts.

Principle 10 Corporate due diligence

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.

Principle 11 Corporate liability

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.

Part Three [Two] Principles applicable during armed conflict

Principle 12 Martens Clause with respect to the protection of the environment in relation to armed conflict

In cases not covered by international agreements, the environment remains under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

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Principle 13 [II-1, 9] General protection of the natural environment during armed conflict

1. The natural environment shall be respected and protected in accordance with applicable international law and, in particular, the law of armed conflict.

2. Care shall be taken to protect the natural environment against widespread, long-term and severe damage.

3. No part of the natural environment may be attacked, unless it has become a military objective.

Principle 14 [II-2, 10] Application of the law of armed conflict to the natural environment

The law of armed conflict, including the principles and rules on distinction, proportionality, military necessity and precautions in attack, shall be applied to the natural environment, with a view to its protection.

Principle 15 [II-3, 11] Environmental considerations

Environmental considerations shall be taken into account when applying the principle of proportionality and the rules on military necessity.

Principle 16 [II-4, 12] Prohibition of reprisals

Attacks against the natural environment by way of reprisals are prohibited.

Principle 17 [II-5, 13] Protected zones

An area of major environmental and cultural importance designated by agreement as a protected zone shall be protected against any attack, as long as it does not contain a military objective.

Principle 18 Prohibition of pillage

Pillage of natural resources is prohibited.

Principle 19 Environmental modification techniques

In accordance with their international obligations, States shall not engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State.

Part Four Principles applicable in situations of occupation

Principle 20 [19] General obligations of an Occupying Power

1. An Occupying Power shall respect and protect the environment of the occupied territory in accordance with applicable international law and take environmental considerations into account in the administration of such territory.

2. An Occupying Power shall take appropriate measures to prevent significant harm to the environment of the occupied territory that is likely to prejudice the health and well-being of the population of the occupied territory.

3. An Occupying Power shall respect the law and institutions of the occupied territory concerning the protection of the environment and may only introduce changes within the limits provided by the law of armed conflict.

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