ENVIRONMENTAL PROTECTION AND TRANSITIONS FROM CONFLICT TO PEACE Environmental Protection and Transitions from Conflict to Peace Edited by CARSTEN STAHN JENS IVERSON and JENNIFER S. EASTERDAY 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2017 The moral rights of the authors have been asserted First Edition published in 2017 Impression: 1 Some rights reserved. 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Preface For many years, the Jus Post Bellum Project has updated and further enlightened prac- titioners and researchers on the theoretical framework and practical consequences of jus post bellum and its link to sustainable peace. Within the context of this discourse, the environment and the exploitation of natural resources have not been the centre of attention. In this volume, Carsten Stahn, Jens Iverson and Jennifer S. Easterday have chosen to focus on environmental protection as a more visible part of jus post bellum. This is an important and welcome choice. Not only is post bellum environmental protection a conditio sine qua non for the rebuilding of a war-torn society, it is still an overlooked matter, only occasionally dealt with by the international community on a case- by- case basis. UN Environment (formerly UNEP) is doing crucial work through its Disasters and Conflicts programme, but as a UN program, it needs a mandate from States when choosing which steps to take — and those steps need to be financed. That said, we see a light on the horizon. In the recently proposed Global Pact for the Environment, the proposed Article 19 provides that “States shall take pursuant to their obligations under international law all feasible measures to protect the environment in relation to armed conflicts.”1 In an attempt to corroborate that post- war environmental protection is not solely a policy matter but also a legal matter, a seminar was arranged by the Jus Post Bellum Project in the Hague in 2014. I was privileged to attend that seminar and listen to the interesting and pioneering research presented. This volume is in part a further elabora- tion of some of the research presented there. But it also contains more recent research that assists us to deepen our understanding of this complex issue. The result is a comprehensive and impressive volume that presents up-to- date research and comments on environmental protection of jus post bellum. It is fair to say that this volume is the first of its kind. It is needed and welcome. Following an excellent and helpful introduction, the volume is divided into four parts: Foundations, Legal Norms and Frameworks, Tension and Dilemmas and Remedying and Preventive Damage and Harm. It contains valuable tables of legal cases, treaties and other documents as well as a list of abbreviations. It is a proper piece of aca- demic work. But it is more than that. It fills a gap. When the United Nations International Law Commission (ILC) decided to place the topic Protection of the Environment in Relation to Armed Conflicts on its agenda, it did so as a result of a growing environmental apprehension among States, interna- tional organizations, such as the ICRC and civil society, the latter represented for exam- ple by the Environmental Law Institute. It was out of concern “that the environment 1 Presented by Laurent Fabius, President of the Conseil constitutionnel, Former President of the COP21, and President of the Pact Experts Group, to President Macron in Paris 24 June 2017. Available at http:// pactenvironment.org, last accessed 31 July 2017. viii Preface continues to be the silent victim of modern warfare” that UNEP and the Environmental Law Institute “undertook a joint assessment of the state of the existing legal framework protecting natural resources and the environment during armed conflict” in 2009. The result was the UNEP’s report, Protecting the Environment During Armed Conflict – An Inventory and Analysis of International Law (2009). The report suggested that the ILC “examine the existing international law for protecting the environment during armed conflict and recommend how it can be clarified, codified and expanded”.2 Although the title of the UNEP Report indicates that the focus of the report is envi- ronmental protection “during” armed conflict, the innovative approach of the report was to look at other areas than international humanitarian law, namely environmental law, human rights and international criminal law. While the report does not refer to jus post bellum, the references to the post- war consequences for the environment and natu- ral resources were plentiful. The jus post bellum was ever- present. When the ILC takes up a new topic, it does so on the basis of its mandate. The focus must be on progressive development of international law or its codification. At the same time the Commission should not restrict itself to traditional topics, but should also consider those that reflect new developments in international law and pressing con- cerns of the international community as a whole. It was on this basis the Commission took up the topic of Protection of the environment in relation to armed conflict. When I was appointed Special Rapporteur for the topic I suggested that the work should focus on three temporal phases: before, during and after armed conflict. It seemed to be the only practical way to move the topic forward. At the same time it was evident that the temporal phases could not be entirely separated from each other. The pre- conflict phase and the post- conflict phase had much in common if viewed through a legal lens. The “during armed conflict phase” was already regulated through the law of armed conflict. Even if the existing environmental protection was not strong enough, there was little prospect of modifying that particular body of law. Concurrently the Commission had recognised that [t] he existence of an armed con- flict does notipso facto terminate or suspend the operation of treaties as between States parties to the conflict or as between a State party to the conflict and a State that is not.3 The Commission had presented an indicative list of treaties that involves an implica- tion that they continue in operation, in whole or in part, during armed conflict.4 This list included treaties for the international protection of human rights, international protection of the environment, international watercourses and related installations and facilities, and treaties relating to aquifers and related installations and facilities among others. It was clear that the law applicable during armed conflict was wider than merely the lex specialis on the law of armed conflict. Legal principles and rules are often inter- linked throughout all phases of a conflict. 2 UNEP, Protecting the Environment During Armed Conflict – An Inventory and Analysis of International Law (2009), Recommendation 3, p. 53. 3 ILC, Draft articles on the effect of armed conflict on treaties, Article 3. Available http://at legal.un.org/ docs/ ?path=../ ilc/ texts/ instruments/ english/ draft_ articles/ 1_ 10_ 2011.pdf&lang=EF, last accessed 31 July 2017. 4 Article 7 (Continued operation of treaties resulting from their subject-matter). Preface ix From a more practical perspective every topic the ILC places on its agenda needs to be confined. It cannot cover all angles or all aspects. The ILC decided not to address root causes of armed conflict, natural resources, protection of cultural property per se, or peacebuilding, to give but a few examples. Many of these issues are dealt with by other UN bodies, such as the Security Council and the Peacebuilding Commission. It is still an open question whether the Commission will proceed to define “environment” or to address in more detail issues of liability and responsibility. In addressing environmental protection in relation to armed conflicts, the pre- and post- armed conflict phases are of crucial importance. A post-war situation is legally complex: matters such as establishing the critical time and dates of conduct, clarifying applicable legal subjects, liability, responsibility, compensation, remediation, statutes of limitation — these are but a few matters that need to be addressed.