Armed conflicts and the environment: The International Law Commission’s new draft principles

• DOI: http://doi.org/10.1111/reel.12324
• Published date: 01 April 2020
• Author: Marja Lehto
• Date: 01 April 2020

RECIEL. 2020;29:67–75.  

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  67wileyonlinelibrary.com/journal/reel

1 | INTRODUCTION

In 2013, the Internat ional Law Commission (I LC) of the United

Nations (UN) incl uded a topic entitled ‘P rotection of the envi-

ronment in relati on to armed conflicts’ in its age nda.1 The work

on the topic, und er two successive Special Ra pporteurs,2 ha s by

now produced fi ve reports and altog ether 28 draft princi ples

with commenta ries that the Commission a dopted in first readi ng

in its 2019 session. 3 This is an appropriate moment to l ook back

and try to give an ove rview of what the Commission h as accom-

plished so far, the cho ices it has made and some of t he chal-

lenges that have been encountered. Rather than presenting the

draft princi ples in a systematic manner – a n exercise that would

be tantamou nt to writing a new set of commentar ies – this arti-

cle discusses fo ur general aspect s that characterize t he topic.

These defining features are the temporal approach, the interplay

of several areas of int ernational law, the relian ce on the en-

hanced unders tanding of the enviro nmental impact s of armed

conflicts an d, finally, the normative n ature of the draft

principles.

2 | TEMPORAL APPROACH

According to its St atute, the ILC shall consider p roposals submitted

to it by the UN General Assembly,4 other principal organs of the

UN, specialize d agencies or official bodie s established by intergov-

ernmental agreement.5 While these st atutory provisions may have

had less impor tance in practice tha n originally expecte d, it is worth

mentioning that the few times the UN General Assembly has asked

the Commission to p roduce a particula r outcome, its reque st has

been honoure d with quick action.6 It is i n this regard of importa nce

that the presen t topic was proposed to the I LC by the UN

Environment Prog ramme (UNEP), in a repor t of the Nairobi

 1ILC ‘Yearbook of t he Internatio nal Law Commiss ion, Vol II, Part Two’ UN D oc A/CN.4/

SER.A/2 013/Add.1 (Part 2) (2013) p aras 130–144.

 2Ms Marie G. Jac obsson from 2013 to 2 016, and Ms Marja Le hto from 2017.

 3ILC ‘Report o f the Internatio nal Law Commis sion, Seventy-f irst Session’ U N Doc

A/74/10 (2019) (ILC 71st Sess ion Report) 20 8–296.

 4Statute of the I nternational L aw Commission , adopted by UNG A ‘Elements of a n

Internatio nal Law Commiss ion’ UN Doc A/RE S/174(II) (21 November 1947), am ended in

1955 and 1981 (ILC Statute) ar t 16.

 5ibid art 17. Before th e present topic , the only such re ferrals were by th e UN Economic

and Social Co uncil (ECOSOC) in t he 1950s; see ECOSOC Re solution 30 4D (XI) (17 July

1950) and 319B III (XI) (11 Aug ust 1950).

 6The first ex ample is the 1973 Conve ntion on the Preve ntion and Punis hment of Crimes

against Inte rnationally P rotected Per sons, includi ng Diplomatic A gents, whic h is one of

the very fir st UN Counter-terr orist Conventi ons. The Gene ral Assembly a sked the ILC to

look at the issu e in 1971 (UNGA ‘Repor t of the Internat ional Law Comm ission’ UN Doc

A/RES/2780 (XXVI) (3 D ecember 1971)), and the C onvention was ad opted alread y two

years later, bas ed on the Draft A rticles the I LC had prepared . Another per tinent exampl e

is the draft t he ILC prepared fo r the Statute of an I nternational C riminal Cour t. The

General A ssembly reque st came in 1989. Five year s later, the ILC prese nted its final d raft

statute to th e General Ass embly and reco mmended that a co nference of

plenipoten tiaries be conve ned to negotiate a t reaty and enac t the Statute.

Received: 13 Novem ber 2019 

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  Revised: 14 Januar y 2020 

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  Accepted: 10 Februa ry 2020

DOI: 10 .1111/reel .12324

SPECIAL ISSUE ARTICLE

Armed conflicts and the environment: The International Law

Commission’s new draft principles

Marja Lehto

© 2020 John Wile y & Sons Ltd, 9600 Gars ington Road, Oxf ord OX4 2DQ, UK and 350 Main St reet, Malden, M A 02148, USA.

Correspondence

Email: marja.lehto@formin.fi The International L aw Commission’s work on the protection of t he environment in re-

lation to armed conflic ts has produced 28 draft princip les with commentaries, which

the Commission adop ted in first reading in 2019. The article gives a n overview of

what the Commission has a ccomplished so far, the choices it has mad e and some of

the challenges that have b een encountered. The ar ticle discusses four gener al aspects

that characteri ze the topic: the temporal app roach, the interplay of several are as of

international law, the relian ce on the enhanced understanding of th e environmental

impacts of arme d conflicts and the normative natu re of the draft principles.