Published: 04 March 2021 Author: Stefan Talmon
On 8 July 2019, the International Law Commission (ILC) adopted a set of 28 draft Principles on “Protection of the environment in relation to armed conflicts” on first reading. The ILC subsequently also adopted commentaries on the draft principles and transmitted the texts to governments for comments and observations. During the consideration of the Report of the ILC in the Sixth Committee of the UN General Assembly on 5 November 2019, Germany offered some initial comments on the draft Principles.
Germany was generally in favour of promoting development in international law on the protection of the environment in relation to armed conflicts “in order to prevent environmental disasters resulting from armed conflicts in the future.” However, it noted that the “draft principles adopted by the Commission on first reading were, to a large extent, not a codification of existing law, but aimed at the progressive development of the law.” It therefore called upon the Commission to clearly distinguish in the draft principles between those principles that reflected established international law and those that represented lex ferenda.
In draft Principle 12, the ILC laid down a so-called “Martens Clause” with respect to the protection of the environment in relation to armed conflict which provided that “[i]n 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.” Germany agreed that:
“it was necessary to confirm the existence of rules on the protection of the environment in times of armed conflict that transcended explicit treaty provisions. However, the inclusion of the term ‘principles of humanity’ blurred the line between the concepts of humanity and nature. It should therefore be clarified […] that the inclusion of the principle of humanity would not lead to a humanization of the concept of ‘nature’, but could cover cases where the destruction of the environment endangered vital human needs.”
According to Germany “the natural environment had an intrinsic value in and of itself.” Germany saw this view “implied” in draft Principles 13 and 16. These draft principles expressly provided that care should be taken to protect the natural environment against widespread, long-term and severe damage, that attacks against the natural environment were prohibited unless it had become a military objective, and that attacks against the natural environment by way of reprisals were prohibited. Germany parted ways with the Commission on the question of the legal basis for these findings, stating:
“However, article 55, paragraph 2, of Additional Protocol I to the Geneva Conventions of 12 August 1949 could not serve as the basis for that prohibition, because it provided for the protection of the environment in order to protect the health and survival of the civilian population. Nonetheless, article 35, paragraph 3, of the Additional Protocol did support the view that environmental protection in international humanitarian law had an intrinsic value. The intrinsic value of the natural environment or nature was also recognized in legal regimes other than international humanitarian law.”
Germany welcomed the ILC’s call to establish areas of major environmental and cultural importance as protected zones. It agreed with the Commission that “a multilateral treaty on the designation of such areas would need to be concluded for there to be a binding effect on all parties under international law” and suggested that such “a treaty should be modelled on the Convention for the Protection of Cultural Property in the Event of Armed Conflict.”
While Germany was generally in favour of a provision on remnants of war, it expressed some reservations with regard to draft Principle 17 (1), which provided that “[a]fter an armed conflict, parties to the conflict shall seek to remove or render harmless toxic and hazardous remnants of war under their jurisdiction or control that are causing or risk causing damage to the environment.” Germany pointed out that this provision:
“could be read as entailing an obligation to act wherever remnants of war were identified, including in the territorial sea and even outside territorial waters, which would place an inappropriate burden on many States. The draft principle should therefore be reworded to make it clear that an obligation to act only arose after an environmental impact assessment had concluded that action was viable, necessary and appropriate in order to minimize environmental harm.”
Germany’s limited and selective comments on the draft Principles were rather disappointing. They could, at best, be seen as a first preliminary engagement with the highly practical topic of the protection of the environment in relation to armed conflicts. For example, if the natural environment does indeed have “an intrinsic value in and of itself” this must have certain consequences on the question of the lawfulness of collateral environmental damage as well as the application of the principle of proportionality and the rules on military necessity. Thus, more detailed and substantive comments are called for on these and other questions, especially as the ILC is to a large extent engaging in international law-making.