AN ASSESSMENT OF THE INTERNATIONAL LAW COMMISSION’S DRAFT PRINCIPLES ON PROTECTION OF THE ENVIRONMENT IN RELATION TO ARMED CONFLICTS IN SITUATIONS OF OCCUPATION

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University of Amsterdam

Amsterdam Graduate School of Law

AN ASSESSMENT OF THE INTERNATIONAL LAW

COMMISSION’S DRAFT PRINCIPLES ON PROTECTION

OF THE ENVIRONMENT IN RELATION TO ARMED

CONFLICTS IN SITUATIONS OF OCCUPATION

Name: Charlotte Shippey

E-mail: charlotte.shippey@hotmail.com Student number: 12802948

Master track: International and European Law (Public International Law) Supervisor: Professor René Lefeber

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Abstract

By June 2021, the International Law Commission expects to receive comments from states and international organisations concerning a complete set of draft principles on protection of the environment in relation to armed conflicts. The International Law Commission’s draft principles include a chapter dedicated to protection of the environment in situations of occupation, which form the subject of this thesis. Here, I analyse the Commission’s draft principles on occupation, which set out obligations aimed to protect the environment, incumbent on Occupying Powers. The purpose is to find out how far the draft principles on occupation can protect the environment in occupied territories. In particular, I aim to answer how the International Law Commission intends its draft principles to protect the environment, and their practicability. My thesis uses the evaluative research method, supported by the classic and normative research methods. The results of my research indicate that the Commission sets out to protect the environment in occupied territories through draft principles which are created from the intersection of international humanitarian, environmental and human rights law and which reflect customary international law. The draft principles on occupation employ flexible terms, allowing them to remain relevant as our knowledge of the environment increases. However, the International Law Commission has applied international human rights law without considering whether it can be used to limit occupied populations’ environmental rights. In addition, the Commission has not engaged with the practicability of the draft principles when the occupied territory shares elements of the environment with the Occupying Power. Nevertheless, in conclusion, when compared to the rules of international humanitarian law on which the draft principles are based, the draft principles on occupation have come much further in their potential to protect the environment.

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Abbreviations

ICJ International Court of Justice

ICRC International Committee of the Red Cross

IEL International Environmental Law

IHL International Humanitarian Law

IHRL International Human Rights Law

ILC International Law Commission

ITLOS International Tribunal for Law of the Sea

OCHA United Nations Office for the Coordination of Humanitarian Affairs

OPT Occupied Palestinian Territories

PEAC Protection of the Environment in relation to Armed Conflicts

UK United Kingdom

UN United Nations

UNEP United Nations Environment Programme

UNGA General Assembly of the United Nations

UNSC United Nations Security Council

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1 Introduction

The underlying assumption of the law of occupation is that an occupied territory is temporarily placed under the authority of an Occupying Power. Yet, “even the shortest inappropriate administration of a foreign territory could result in profound and potentially irreversible damage to ecosystems”.1_{Situations of occupation, like armed conflicts more broadly, are}

primarily regulated by international humanitarian law (IHL) drafted before modern international environmental law (IEL) developed.2_{Hence, in 2013, the International Law}

Commission (ILC) began its work on protection of the environment in relation to armed conflicts (PEAC), taking a broader perspective by looking at the “the intersection between the international law relating to the environment and the law of armed conflict”.3_{In December}

2019, the ILC released its draft principles on protection of the environment in relation to armed conflicts (Draft Principles on PEAC) for comments and observations from states, international organisations and others, due June 2021.4 The ILC includes three draft principles dedicated to situations of occupation (the Draft Principles on Occupation), which form the subject of my thesis.

My research question is how far the Draft Principles on Occupation can protect the environment in occupied territories. I analyse how the ILC has intended the Draft Principles on Occupation to protect the environment and use examples, primarily from Israel’s well-known and protracted occupation of Palestine, to assess the Draft Principle on Occupation’s practicability.

In my thesis, I apply the evaluative research method, supported by the classic doctrinal research method.5_{Because the Draft Principles on PEAC “are aimed at enhancing the protection of the}

environment in relation to armed conflict”, my evaluative standard is whether the Draft Principles on Occupation are good for the protection of the environment. 6_{In comparison, my}

1_{UNGA Sixth Committee, (73rd Session) ‘Summary record of the 28th meeting’ (10 December 2018) UN Doc}

A/C.6/73/SR.28 para 88 (Portugal).

2_{ILC, ‘First report on protection of the environment in relation to armed conflicts by Marja Lehto, Special}

Rapporteur’ (30 April 2018) UN Doc A/CN.4/720 (Lehto’s First Report) 8.

3_{ILC, ‘Chapter VI: Protection of the environment in relation to armed conflicts’ in ‘Report on the work of the}

seventy-first session’ (29 April – 7 June and 8 July – 9 August 2019) UN Doc A/74/10 (ILC Draft Commentary) 215.

4_{ILC Draft Commentary 210; ILC, ‘Interactive session / ILC Special rapporteurs and the Sixth Committee:}

Remarks by Marja Lehto’ (28 October 2020)

<https://www.un.org/en/ga/sixth/75/pdfs/statements/ilc_interaction/lehto.pdf> accessed 3 December 2020.

5_{See generally, Maria Nääv and Mauro Zamboni, Juridisk metodlära (2nd edn, 2018).} 6_{Draft Principle 2.}

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use of the normative research method is limited. Bearing in mind the generally anthropogenic focus of IEL, I am more explicit than the ILC in affirming that the Draft Principles on Occupation should also benefit occupied populations as the closest dependents of an occupied territory’s environment. My thesis examines three legal regimes; IHL, IEL and international human rights law (IHRL), which makes it a complex and interesting area of study. My examination relies heavily on the Hague Regulation7 the Fourth Geneva Convention,8 as the main treaties in the law of occupation. I rely on the ILC’s work on PEAC, which includes commentaries, reports from special rapporteurs and comments from states and ILC members. I also take into account case law of international courts and tribunals, scholarly publications, reports from international organisations, as well as state practice and opinio juris.

My thesis is divided into ten chapters. Following this introduction, I set the foundations by elaborating on the concepts of occupation (chapter 2) and the environment (chapter 3) in international law. Thereafter, I introduce the ILC’s work on PEAC and the Draft Principles on Occupation (chapter 4). In chapters five to nine, I unpack and analyse each provision of the Draft Principles of Occupation, before concluding my thesis in chapter ten. The Draft Principles on Occupation are reproduced in an appendix.

2 Occupation

2.1 The Hague Regulations versus the Fourth Geneva Convention

A territory is occupied if it fulfils the factual requirements of an occupation, irrespective of

whether the Occupying Power invokes the legal regime of occupation.9_{However, the Hague}

Regulations and the Fourth Geneva Convention contain different requirements.10_{Article 42 of}

the Hague Regulations provides that a territory is occupied if it is “actually placed under the authority of the hostile army” and that the “occupation extends only to the territory where such authority has been established and can be exercised”.11 Accordingly, in Armed Activities, the International Court of Justice (ICJ) held that a hostile army must have substituted their

7_{International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on}

Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907.

8_{ICRC, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75}

UNTS 287.

9_{ibid 267; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda),} Judgment, I.C.J. Reports 2005, p. 168 para 173.

10_{ICRC, Commentary (1958) to the Geneva Convention IV (ICRC Commentary) 60.} 11_{Article 42 Hague Regulations.}

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authority for the ousted government’s, in addition to being stationed in the occupied territory.12

However, in a Separate Opinion, Judge Kooijmans argued that it is sufficient for the hostile army to be in a position to substitute their authority.13 Judge Kooijmans’ interpretation reflects that whilst Occupying Powers generally assumed authority at the time article 42 was drafted, by the end of the 20th century “occupying forces tended to elude their responsibilities as occupants”.14

In comparison, under the Fourth Geneva Convention, there “is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation”.15_{For the occupied population, the application of the Convention “does not}

depend upon the existence of a state of occupation within the meaning” of the Hague Regulations.16 Nevertheless, the Fourth Geneva Convention contains provisions that equally apply to situations governed by the Hague Regulations. Firstly, the territory occupied can form part of or all of the occupied state’s territory.17 Secondly, the hostile army need not meet armed resistance.18 Thirdly, there is no legally required end to an occupation. Article 6 of the Convention seemingly presumes that occupations last up to a year, stipulating that the Convention ceases to apply one year after the general close of military operations. Yet, as long as the Occupying Power exercises governmental functions of the occupied territory it remains bound by the Convention.19

2.2 Maritime areas and airspace

The ILC states that, depending on the territory occupied, the Occupying Power’s temporary authority may extend to the territorial sea and the airspace over the territory.20 Notably, the Occupying Power cannot occupy the territorial sea or the airspace over the territory without occupying the land area.21 The first version of draft principle 20(1) also included under the occupied territory, “any adjacent maritime areas over which the territorial State is entitled to

12_{Armed Activities para 173.}

13_{Armed Activities, Separate Opinion of Judge Kooijmans paras 45 and 49.}

14_{Eyal Benvenisti, ‘Belligerent Occupation’ (May 2009) in Rüdiger Wolfrum (ed), The Max Planck}

Encyclopedias of Public International Law (online edn) para 5.

15_{ICRC Commentary 60.} 16_ibid.

17_{Article 2 Geneva Convention IV.} 18_ibid.

19_{Article 6 Geneva Convention IV.} 20_{ILC Draft Commentary 266.}

21_{Article 88 Manual of the Laws of Naval War (Oxford 9 August 1913)}

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exercise sovereign rights”.22_{The reference to adjacent maritime areas has been moved to the}

ILC’s commentaries, where the ILC explains that it only certainly applies to territories completely occupied.23 The ILC does not define adjacent maritime areas but seemingly distinguishes it from the territorial sea which might suggest that adjacent maritime areas can include the continental shelf and the exclusive economic zone.24 However, as authority the ILC refers to the 1913 Manual of the Laws of Naval War, according to which the occupied maritime territory includes “gulfs, bays, roadsteads, ports and territorial waters”.25_{Here, ‘territorial}

waters’ has been interpreted as synonymous with the territorial sea.26_{In addition, the academics}

referred to by the ILC offer different conclusions as to whether and when the exclusive economic zone and the continental shelf can be occupied.27 The reference to adjacent maritime areas has also proved controversial amongst states and the ILC’s members.28 The ILC’s reference to ‘adjacent maritime areas over which the territorial State is entitled to exercise sovereign rights’ would, therefore, benefit from further clarification.

2.3 Examples of occupations

Having briefly laid out the theoretical framework of occupations, I turn to some examples. First, in the Turkish Republic of Northern Cyprus, Turkey relies on a “local surrogate [...] for the purposes of exercising control over the occupied area”.29_{In Loizidou v Turkey, the}

European Court of Human Rights held that where a state exercises effective control of an area outside its territory, the “obligation to secure, in such an area, the rights and freedoms set out in [the Convention for the Protection of Human Rights and Fundamental Freedoms], derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration”.30

22_{Lehto’s First Report 49.} 23_{ILC Draft Commentary 266.}

24_{ibid; UNGA Sixth Committee, (74th Session) ‘Summary record of the 30th meeting’ (9 December 2019) UN}

Doc A/C.6/74/SR.30 para 100 (Cyprus).

25_{Article 88 Manual of the Laws of Naval War.}

26_{Yoram Dinstein, The International Law of Belligerent Occupation (CUP 2009) 47.}

27_{ibid; Eyal Benvenisti, The International Law of Occupation (2nd edn, OUP 2012) 55; Marco Sassòli, ‘The}

concept and the beginning of occupation’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949

Geneva Conventions: A Commentary (OUP 2015) 1389, 1396.

28_{See for example, UNGA Sixth Committee ‘Summary record of the 28th meeting’ (10 December 2018) para}

51 (Nordics); UNGA Sixth Committee (9 December 2019) paras 96 and 100 (Cyprus); ILC, (70th Session, 2nd Part) ‘Provisional summary record of 3427th meeting’ (3 August 2018) UN Doc A/CN.4/SR.3427, 5, 6 and 12.

29_{ILC Commentary 266-7.}

30_{Loizidou v Turkey, Judgment (Merits), 18 December 1996, Reports of Judgments and Decisions 1996-VI, para}

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Second, Iraq’s occupation of Kuwait in 1990-1 was short-lived, lasting seven months.31_Iraq’s

occupation is also frequently referred to as the ‘invasion and occupation of Kuwait’,32

indicating a close relationship between occupation and active conflict.33

Third, Israel’s occupation of Palestine stands out as one of the longest contemporary occupations, since June 1967.34 Roberts terms an occupation lasting more than five years a ‘prolonged occupation’, highlighting that the temporary character of the occupation is lost.35

Roberts also suggests that prolonged occupations last into a period of approximating peacetime.36

Fourth, the United Kingdom’s (UK’s) and United States of America’s (US’) occupation of Iraq 2003-2011 set out to transform Iraq for the benefit of the occupied population.37 The Occupying Powers established the Coalition Provisional Authority “to restore and establish national and local institutions for representative governance and facilitat[e] economic recovery and sustainable reconstruction and development”.38_{Hence, ‘transformative occupations’ can}

be contrasted with traditional occupations which are for geostrategic objectives.39

The above examples of occupations illustrate the wide differences between occupations. It is the role of the law of occupation to grapple with the conflict, or interrelationship, between inhabitants, the occupying power and the ousted government.40

3 (Not) defining the environment

Viñuales and Dupuy explain that the “term ‘environment’ is as simple to understand intuitively as it is difficult to circumscribe precisely”.41_{Whilst the law of occupation contains no}

definition, in Nuclear Weapons Advisory Opinion, the ICJ recognised that “the environment is not an abstraction but represents the living space, the quality of life and the very health of

31_{Michael N Schmitt, ‘Iraq-Kuwait War (1990-91)’ (December 2009) in Rüdiger Wolfrum (ed), The Max}

Planck Encyclopedias of Public International Law (online edn) paras 1, 7 and 15.

32_{See for example, UNSC, Res 687 (1991) UN Doc S/RES/687; ILC Draft Commentary 266.} 33_{Schmitt paras 4 and 8.}

34_{Benvenisti (2012) 203.}

35_{Adam Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories since 1967’ (1990) 85 AJIL}

44, 47 and 60.

36_{ibid 47 and 61; ILC Draft Commentary 266.}

37_{Gregory Fox, ‘Transformative occupation and the unilateralist impulse’ (2012) 94 IRRC 237.} 38_{ibid 238.}

39_{ibid 243.}

40_{Benvenisti (2012) 6.}

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human beings, including generations unborn”.42_{Nonetheless, there is no internationally}

accepted definition of the environment.

The first Special Rapporteur on PEAC, Jacobsson made the suggestion to adopt the definition of the environment found in the ILC’s principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities (the ILC’s Allocation of Loss Principles).43 The environment includes “natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora, as well as the interaction between the same factors, and the characteristic aspects of the landscape”.44 The definition is based on principle 2 of the Stockholm Declaration although the ILC extends its understanding of the environment to “environmental values”, which includes “non-service values such as aesthetic aspects of the landscape”.45

Yet, the environment is not defined in the Draft Principles on PEAC.46 In fact, the second Special Rapporteur, Lehto, argues that a definition would be disadvantageous.47 Firstly, Lehto points to the absence of an agreed definition of the environment in international law.48 Secondly, the different legal understandings of the environment may “have little relevance outside the specific context of each instrument”.49_{Thirdly, and notably, the environment “is an}

elusive concept that reacts and adapts to the increased knowledge of the elements of the environment and their mutual interaction”.50_{Yet, whilst it is easily accepted that a rigid}

definition may fail to see the draft principles through developments in international law, a definition has its values. For example, Jacobsson argues that “a definition is likely to be a valuable tool in framing the scope of the conclusions reached by the Commission”.51_Sands

states that a definition of the environment “assumes significance in relation to efforts to establish rules governing liability for damage to the environment”.52

42_{Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 para 29.} 43_{ILC, ‘Preliminary report on the protection of the environment in relation to armed conflicts: Submitted by}

Marie G. Jacobsson, Special Rapporteur’ (30 May 2014) UN Doc A/CN.4/674 (Jacobsson’s First Report) 22-4.

44_{ILC, ‘draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous}

activities, with commentaries’ (2006) YILC vol. II (Part Two).

45_{ibid 69; Jacobsson’s First Report 22.} 46_{ILC Draft Commentary.}

47_{ILC, ‘Second report on protection of the environment in relation to armed conflicts by Marja Lehto, Special}

Rapporteur’ (27 March 2019) UN Doc A/CN.4/728 (Lehto’s Second Report) 84-5.

48_{ibid 82.} 49_{ibid 83.} 50_{ibid 84-5.}

51_{Jacobsson’s First Report 24.}

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International law’s understanding of the environment is shaped by its primary focus “on the interactions of humans and the natural world”.53_{In comparison, an ecocentric understanding}

of the environment would emphasise that “the environment has intrinsic value which entitles it to an existence regardless of the interests of human beings”.54 For example, whilst the World Charter for Nature proclaims that “[m]ankind is part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients”, it also declares that “[e]very form of life is unique, warranting respect regardless of its worth to man”.55

4 An introduction to the ILC’s draft principles on

protection of the environment in relation to armed

conflicts

The ILC is a subsidiary organ of the General Assembly of the United Nations (UN) mandated to promote the progressive development of international law and its codification.56 In 2013, the ILC began work on PEAC and in 2019 published a complete set of draft principles.57 It asked states and international organisations for comments and observations by June 2021.58 The topic was suggested by UN Environment Programme (UNEP) and the Environmental Law Institute, recommending the ILC to “examine the existing international law for protecting the environment during armed conflict and recommend how it can be clarified, codified and expanded”.59_{Their proposal was championed by Jacobsson, who stated that the protection of}

the environment during armed conflicts had been too narrowly viewed through the lens of IHL.60 Indeed, “the protection provided to the environment by the law of occupation is mostly

53_{Daniel Bodansky, The Art and Craft of International Environmental Law (HUP 2010) 9.}

54_{Peter Mutesasira, Environmental Procedural Rights in Africa with Specific Reference to South Africa and} Uganda (Doctoral thesis, University of Amsterdam 2020) 3.

55_{Preamble UNGA, World Charter for Nature, 28 October 1982, UN Doc A/RES/37/7.}

56_{Article 1(1) Statute of the International Law Commission, ‘Elements of an International Law Commission’}

(21 November 1947) UN Doc A/RES/174(II).

57_{ILC Draft Commentary 209.}

58_{ibid 210; ILC, ‘Interactive session...’ (2020).}

59_{UNEP, ‘Protecting the Environment During Armed Conflict – An Inventory and Analysis of International}

Law’ (2009) 53.

60_{ILC, ‘Annexes: Annex E’ in ‘Report on the work of the sixty-third session’ (26 April – 3 June and 4 July – 12}

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indirect”.61_{However, although occupation was on the ILC’s agenda, only in 2018 did it detail}

principles on the protection of the environment applicable under occupation.62

In her proposal, Jacobsson suggested that the “final outcome could be either a Draft Framework Convention or a Statement of Principles and Rules”.63_{By Jacobsson’s second report as Special}

Rapporteur, it became clear that the ILC had opted for draft principles.64 Jacobsson decided on principles because she wanted something in-between ‘guidelines’ which was too optional and ‘conclusions’ which was too definitive.65_{In addition, there was no consensus on ‘articles’.}66

Bodansky suggests that principles, like rules, “embody legal standards, but the standards they contain are more general than commitments and do not specify particular action”, unlike rules.67 Whilst the Draft Principles on PEAC contain “provisions of different normative value”,68_{Lehto declares that the Draft Principles on Occupation reflect customary international}

law.69 In particular, the Draft Principles on Occupation “are based on customary rules of international law which have been clarified in a contemporary context of environmental protection”.70 Although I evaluate the Draft Principles on Occupation within the ILC’s chosen method, Smith has criticised the ILC’s decision not to adopt a Draft Framework Convention or engage in the progressive development of international law.71

The Draft Principles on PEAC are divided into five sections: introduction, and principles- of general application, applicable during armed conflict, applicable in situations of occupation and applicable after armed conflict. The introduction stipulates that the Draft Principles on PEAC “are aimed at enhancing the protection of the environment in relation to armed conflict” through preventative and remedial measures and that they apply before, during and after armed conflict.72 Lehto highlights the interconnectedness between the temporal categories and

61_{Marie Jacobsson and Marja Lehto, ‘Protection of the Environment in Relation to Armed Conflicts – An}

Overview of the International Law Commission’s Ongoing Work’ 10(1) GoJIL 37, 38.

62_{Lehto’s First Report.}

63_{Jacobsson’s Proposal para 33.}

64_{ILC, ‘Second report on protection of the environment in relation to armed conflicts: submitted by Marie G.}

Jacobsson, Special Rapporteur’ (28 May 2015) UN Doc A/CN.4/685 (Jacobsson’s Second Report).

65_{ILC, (67th Session, 2nd Part) ’Provisional summary record of the 3264th meeting’ (6 May 2016) UN Doc}

A/CN.4/SR.3264, 5.

66_ibid.

67_{Daniel Bodansky, ‘The United Nations Framework Convention on Climate Change: A Commentary’ (1993)}

18 YJIL 451, 501.

69_{Marja Lehto ‘Armed Conflicts and the Environment: the International Law Commission’s New Draft}

Principles’ (2020) 29(1) RECIEL 68, 74.

70_ibid.

71_{Tara Smith, ‘A Framework Convention for the Protection of the Environment in Times of Armed Conflict’}

(2020) 11 JIHLS 148.

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occupation.73_{For example, when “occupation is a consequence of an armed conflict, it can be}

taken that the environment has already suffered significant harm”.74_{Such harm includes the}

institutional collapse of environmental administration which “hampers post-conflict efforts to respond to environmental problems”.75In comparison, a prolonged occupation may share similarities with a post-conflict situation.76 Hence, whilst they are not discussed in this thesis, there are draft principles applicable during and after armed conflict that also apply during occupation. Instead, my thesis focuses on the Draft Principles on Occupation; draft principles 20(1)-(3), 21 and 22, discussed in the following chapters.

Many states have welcomed the ILC’s work on the topic, emphasising its importance.77 For

example, Portugal aptly states that the “current legal framework for the protection of the environment in situations of armed conflict had been developed at a time when the knowledge of the environmental impact of armed conflict and the technology available had been very different”.78_{However, it has also been met with some reluctance. For example, the UK states}

that they are “unconvinced of the need for new treaty provisions on the topic”.79

5 Draft principle 20(1)

5.1 Article 43 of the Hague Regulations

Draft principle 20(1) stipulates that 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”. Draft principle 20(1) is derived from article 43 of the Hague Regulations, reflecting customary international law. Article 43 stipulates that the Occupying Power “shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”.80 However, ‘public order and safety’ has come to be understood as the wider ‘public order and civil life’ due to a

re-73_{Lehto’s First Report 7-8.} 74_{ibid 8.}

75_ibid. 76_ibid.

77_{Lehto’s Second Report 3-4.}

78_{UNGA Sixth Committee ‘Summary record of the 28th meeting’ (10 December 2018) para 89.}

79_{UNGA Sixth Committee, (73rd Session) ‘Summary record of 30th meeting’ (6 December 2018) UN Doc}

A/C.6/73/SR.30; see also ibid paras 14-16 (Israel).

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interpretation of “l’ordre et la vie publics” in the original French treaty text.81_{In addition,}

unlike when article 43 was drafted, environmental protection is now a public function of the state, with the ICJ referring to it as an “essential interest”.82

5.2 Respect and protect: draft principle 13

The obligation to ‘respect and protect’ in draft principle 20(1) is based on draft principle 13, applicable during armed conflict.83 The ILC employs ‘respect’ and ‘protect’ because “they have been used in several laws of armed conflict, environmental law and human rights law instruments”.84_{For example, article 48 of the First Additional Protocol to the Fourth Geneva}

Convention lays down that parties to a conflict shall ensure respect for and protection of the civilian population and civilian objects.85 Article 55 of the same Protocol obligates states to “protect the natural environment against widespread, long-term and severe damage” during warfare.86 Furthermore, under principle 23 of the Rio Declaration, the “environment and natural resources of people under oppression, domination and occupation shall be protected”. More generally, the World Charter for Nature expresses that “[n]ature shall be respected and its essential processes shall not be impaired” and that “[e]very form of life is unique, warranting respect regardless of its worth to man”.87_{However, the ILC does not define the terms and}

whilst they entail distinct obligations in IHRL,88 there are no such clear consequences of using ‘respect’ and ‘protect’ in IEL.

5.3 Environmental considerations: draft principle 15

Draft principle 20(1) stipulates that the Occupying Power shall take environmental considerations into account. ‘Environmental considerations’ is also found in draft principle 15, applicable during armed conflict. Both draft principles draw on Nuclear Weapons, where the ICJ held that “States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives”.89 The ILC states

81_{ibid 274 and fn 1290; Marco Sassòli, ‘Legislation and Maintenance of Public Order and Civil Life by}

Occupying Powers’ (2005) 16(4) EJIL 661, 664.

82_{Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7 para 53.} 83_ibid.

85_{Article 48 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection}

of Victims of International Armed Conflicts (Additional Protocol I), of 8 June 1977.

86_{Article 55 Additional Protocol I.}

87_{Article 1 and Preamble World Charter for Nature.}

88_{See generally, Daniel Moeckli et al., International Human Rights Law (3rd edn, OUP 2018).} 89_{Nuclear Weapons Advisory Opinion para 30; ILC Draft Commentary 270.}

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that ‘environmental considerations’ “is a generic notion that is widely used but rarely defined”.90_{The ILC implies that because environmental considerations are “context dependent}

and evolving” it does not need to be defined, much like the ILC’s decision not to define the environment.91

5.4 Applicable international law

In addition to IHL, IEL and IHRL apply to environmental protection in situations of occupation.92 Although most states welcome the ILC’s assessment of the applicable law,93 Israel states that the three legal regimes are “completely different from one another, each being designed for a specific purpose and involving its own considerations and including, accordingly, a unique and appropriate set of rules”.94

5.4.1 International environmental law

In Nuclear Weapons, the ICJ held that “international law relating to the protection and safeguarding of the environment [...] indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict”.95_{Similarly, in their draft articles on the effects}

of armed conflicts on treaties the ILC concluded that, presumptively, treaties relating to the international protection of the environment continue in operation during armed conflict.96 Traditionally, “treaties were suspended in times of war between belligerents while continuing to apply in the relations between belligerents and third States to the conflict”.97 However, drawing on Bannelier-Christakis’s work, the ILC argues that because obligations in multilateral environmental agreements “protect a collective interest and are owed to a wider group of States than the ones involved in the conflict or occupation” it would be peculiar if obligations could be suspended only between the parties to a conflict.98

90_{ibid 271.} 91_ibid. 92_{ibid 269.}

93_{Lehto’s Second Report 3.}

94_{UNGA Sixth Committee (6 December 2018) para 14.} 95_{Nuclear Weapons para 33.}

96_{Draft article 7 and annex ILC, ‘draft articles on the effects of armed conflicts on treaties, with commentaries’}

(2011) YILC vol. II (Part Two).

97_{Karine Bannelier-Christakis, ‘International Law Commission and protection of the environment in times of}

armed conflict: a possibility for adjudication? (2013) JICS 129, 140–141.

98_{ibid; ILC Draft Commentary 270; for a more cautious analysis, see ICRC, ‘Guidelines on the Protection of the}

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It is widely recognised that IHRL contains obligations indirectly protecting the environment.99

The ICJ confirms the application of human rights during armed conflict in two cases pertaining to Occupying Powers. In Armed Activities, the ICJ held that article 43 of the Hague Regulations comprises the duty to secure respect for the applicable rules of IHRL.100 In Construction of a

Wall, the ICJ held that “the protection offered by human rights conventions does not cease in

case of armed conflict”, although conventions’ limitation and derogation provisions may impact the application of human rights during occupation.101 Like treaties on environmental protection, the ILC’s draft articles on the effects of armed conflicts on treaties stipulate that treaties for the international protection of human rights, presumptively, continue in operation during armed conflict.102

However, Gross argues that invoking international human rights obligations during occupation “may serve to limit the rights and entitlements of people under occupation”.103_{Gross finds that}

introducing a human rights analysis in cases from the Occupied Palestinian Territories (OPT) “legitimized the violation of their rights [by] invoking the human rights of Israelis, be they settlers or Israeli citizens in general”.104_{Gross opines that the “currently prevalent human rights}

analysis justifies limiting rights in the name of security as long as the limits are proportional”.105_{Although Gross’ statement is a simplification of IHRL, his statement is}

important because the ICJ held that human rights treaties do not cease during armed conflict “save through the effect of provisions for derogation”.106_{Similarly, Benvenisti argues that,}

although applying IHRL to occupation is “beneficial to holding the occupant to account for an enlarged scope of duties toward the occupied population”, it may normalise “what is inherently a temporary, exceptional regime that should remain inherently suspect due to its foreignness”.107 Unfortunately, the ILC does not address these concerns in the Draft Principles on Occupation, nor in their earlier work on the effects of armed conflicts on treaties.

99_{See generally, Sands chapter 17.} 100_{Armed Activities para 178.}

101_{Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,} I.C.J. Reports 2004, p. 136 para 106.

102_{Draft article 7 and annex ILC’s draft articles on the effects of armed conflicts on treaties (2011).}

103_{Aeyal M. Gross, ‘Human Proportions: Are Human Rights the Emperor’s New Clothes of the International}

Law of Occupation?’ (2007) 18(1) EJIL 1, 7.

104_{ibid 28.} 105_{ibid 7.}

106_{Construction of a Wall para 106.} 107_{Benvenisti (2012) 15.}

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6 Draft principle 20(2)

Draft principle 20(2) states that 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”. Draft principle 20(2) is based on article 55 of Additional Protocol I, according to which “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage” and this “protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”. 108

6.1 Preventing significant harm to the environment

Compared to article 55, draft principle 20(2) is clearly phrased as a due diligence obligation; to prevent, rather than to take care to protect. Draft principle 20(2) also refers to “significant harm to the environment” instead of “widespread, long-term and severe damage”. Thus, this provision is similar to draft principle 22, although the obligation to prevent significant harm to the environment under draft principle 22 is dependent on the risk of causing harm to areas beyond the occupied territory rather than harm to persons within the occupied territory.109 The link to draft principle 22 is further evident from the ILC defining ‘significant harm’ by reference to its draft articles on the prevention of transboundary harm from hazardous activities.110_{The ILC defined ’significant’ as “something more than ‘detectable’ but not}

necessarily ‘serious’ or ‘substantial’”.111_{The ILC also noted that ‘significant’ “involves a value}

determination which depends on the circumstances of a particular case and the period in which such determination is made”.112_{Specific to the Draft Principles on Occupation, “harm that is}

likely to prejudice the health and well-being of the population of the occupied territory would amount to ‘significant harm’”.113 Hence, significant harm and prejudice to the health and

well-108_{ILC Draft Commentary 272.} 109_{See chapter 9.}

111_{ILC, ‘draft articles on prevention of transboundary harm from hazardous activities, with commentaries’}

(2001) YILC vol. II (Part Two) 152–153.

112_ibid.

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being are not two cumulative thresholds.114_{However, Hulme critically argues that the threshold}

should be clarified in the text of draft principle 20(2).115

6.2 Health and well-being

Draft principle 20(2) uses ‘health and well-being’ rather than article 55’s ‘health or survival’. The ILC changed it because ‘health and well-being’ is frequently used by the World Health Organisation.116 ‘Well-being’ is also found in principle 1 of the Stockholm Declaration which reaffirms the fundamental right to “adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”. It may also be that ‘well-being’ better connotes international human rights. For example, South Africa states that they welcome “the inclusion of the broader term ‘well-being’ in lieu of the enumeration of human rights relevant to environmental protection”.117

Indeed, draft principle 20(2) builds on the applicability of international human rights law to occupation, mentioning the rights to life, health and food, although it is a non-exhaustive list.118 The incorporation of these rights is important, considering reports on how the OPT is suffering,

inter alia, water scarcity and contamination, waste pollution and restrictions on agriculture and

fishing, leading to lack of access to food and detrimental consequences on the life and health of Palestinians under Israel’s occupation.119_{Noting the disapproval of some states regarding}

the applicability of IHRL, the ILC understandably relied on the well-established and fundamental rights to life, health and food.

6.3 The population of the occupied territory

The ILC resisted the possibility to qualify article 55’s ‘population’ as ‘civilian population’. According to the International Committee of the Red Cross (ICRC), ‘population’ without its usual qualifier emphasises that environmental damage “may continue for a long time and affect the whole population without any distinction”.120_{Yet, the ILC declined South Africa’s}

invitation “to consider extending the category of persons entitled to the benefit of

114_ibid.

115_{Karen Hulme, ‘Enhancing Environmental Protection during Occupation through Human Rights’ (2020) 10(1)}

GoJIL 203, 214.

117_{UNGA Sixth Committee (6 December 2018) para 4.} 118_{ILC Draft Commentary 271.}

119_{See in particular, UNGA Human Rights Council, ‘Human rights situation of the Occupied Palestinian}

Territory, including East Jerusalem, with a focus on access to water and environmental degradation’ (30 May 2019) UN Doc A/HRC/40/73.

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environmental protection from ‘the population of the occupied territory’ to explicitly include ‘future generations’”.121_{Furthermore, although ‘population of the occupied territory’ is used}

in the Fourth Geneva Convention, Al-Haq asserts that the term can be misinterpreted to include settler populations.122 Al-Haq suggests replacing it with ‘protected population’, inspired by ‘protected persons’ in article 4 of the Convention because article 4 excludes persons with the nationality of the Occupying Power.123 The ILC could, at the very least, clarify that ‘population of the occupied territory’ should be read in light of article 4, as the ILC has in the commentary to draft principle 21.124

7 Draft principle 20(3)

Draft principle 20(3) sets out that 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”. The ILC notes that environmental rights “have been recognized at national level in constitutions of more than a hundred states”.125_{Although the ILC refers to ‘environmental human rights’, it must be equally}

important that national laws address environmental protection through other legal regimes, including IEL. Hence, the ILC’s reference should be read as one example of the prevalence of states with law and institutions dedicated to environmental protection.

7.1 The conservationist principle

Like draft principle 20(1), this provision is premised on article 43 of the Hague Regulations.126 Draft principle 20(3) is also based on article 64 of the Fourth Geneva Convention which, according to the ICRC, “expresses, in a more precise and detailed form, the terms of Article 43”.127_{Article 43 and article 64 embody the ‘conservationist principle’.}128_{The conservationist}

principle emphasises the temporary nature of occupations and maintaining the status quo in the

121_{UNGA Sixth Committee (6 December 2018) para 4.}

122_{Al-Haq, ‘ILC Draft Principles on the Protection of the Environment in Relation to Armed Conflicts’ (25 July}

2019) <https://www.alhaq.org/cached_uploads/download/2019/08/05/ilc-draft-articles-memo-final-1565036745.pdf> accessed 10 December 2020 para 35; article 4 Geneva Convention IV.

123_{ibid; ICRC Commentary 46.} 124_{ILC Draft Commentary 276-7.} 125_{ILC Draft Commentary fn 1317.} 126_{ibid 274.}

127_{ICRC Commentary 335.} 128_{ILC Draft Commentary 274.}

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occupied territory.129_{The law of occupation does not transfer sovereignty to the Occupying}

Power “but simply the authority to exercise some of the rights of sovereignty”. 130_{Hence, the}

Occupying Power’s legislative authority is limited, although not non-existent.

Article 64 stipulates that the penal laws of the occupied territory shall remain in force unless they constitute a threat to the Occupying Power’s security or an obstacle to the Convention. Despite the reference to penal law, the ICRC clarifies that article 64 applies to all law in the occupied territory.131 The ICRC’s clarification is important because administrative law is often used to protect the environment. The ICRC also states that the Occupying Power can only abrogate or suspend laws pursuant to the two aforementioned exceptions.132 Article 64 continues to state that the Occupying Power may subject the occupied population to provisions “which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power”.

7.2 Stretching the conservationist principle

The first draft of the provision was textually closer to article 43 of the Hague Regulations. It stated that an “occupying State shall, unless absolutely prevented, respect the legislation of the occupied territory pertaining to the protection of the environment”.133 The current draft is more elaborate, reflecting the Fourth Geneva Convention, and it is further broadened in the ILC’s commentary to it. Israel argues that the current draft is progressive development and that the first draft is more reflective of international law as it stands.134 The Netherlands agrees that the provision is a progressive interpretation of article 43, but welcomes it.135 This section addresses to what extent draft principle 20(3) goes beyond clarifying customary rules of international law in a contemporary context of environmental protection and whether it is necessary.

7.2.1 Law and institutions

Draft principle 20(3)’s reference to institutions is based on article 47 of the Fourth Geneva Convention, according to which the occupied population “shall not be deprived [...] of the

129_ibid. 130_{Fox 238.}

131_{ICRC Commentary 335.} 132_{ibid 336.}

133_{Lehto’s First Report 49.}

134_{UNGA Sixth Committee (6 December 2018) para 16.}

135_{UNGA Sixth Committee, (73rd Session) ‘Summary record of the 29th meeting’ (10 December 2018) UN}

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benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory”. The ICRC states that article 47 “does not expressly prohibit the Occupying Power from modifying the institutions or government of the occupied territory”.136 In addition, the Convention’s “object is to safeguard human beings and not to protect the political institutions and government of the State” and that “changes might conceivably be necessary and even an improvement”.137_{Arai-Takahashi}

describes that “under the Fourth Geneva Convention the primary beneficiaries [...] are switched from the political and military elites of the ousted sovereign state, who were anxious to see their laws and institutions preserved upon their return, to the occupied population with whom sovereignty is endowed”.138_{This shift helps to explain the weakening of the conservationist}

principle that is reflected in draft principle 20(3).

7.2.2 Within the limits of the law of armed conflict

This section analyses the limits provided by the law of armed conflict without reference to article 64’s security exception. Although security measures can harm the environment, I am interested in the extent to which an Occupying Power may change the law and institutions in the occupied territory to protect the environment.

7.2.2.1 Evolving concepts

An important piece in identifying the limits set by the law of armed conflict is the ILC’s assertion that article 43’s ‘civil life’ and article 64’s ‘orderly government’ are, by definition,

“evolving concepts”.139_{The ILC compares them to ‘well-being and development’ which were}

held to be, by definition, evolutionary in the Namibia Advisory Opinion.140_{The ILC also refers}

to Aegean Continental Shelf where the Court held that where a generic term is used, “the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time”.141_{Indeed, the ILC previously concluded that “cases that support an evolutive}

interpretation seem to relate to more general terms”.142 However, the ILC did not go as far as

136_{ICRC Commentary 273.} 137_ibid.

138_{Yutaka Arai-Takahashi, ‘Preoccupied with Occupation: Critical Examinations of the Historical Development}

of the Law of Occupation’ (2012) 94(885) IRRC 51,68.

140_{Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)} notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 para. 53. 141_{Aegan Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 3. para 77.}

142_{ILC, ‘draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of}

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the Arbitral Tribunal in the Iron Rhine which held that there is “general support among the leading writers today for evolutive interpretation of treaties” and applied the evolutive interpretation not to a generic term but to “new technological developments relating to the operation and capacity of the railway”.143

The ILC does not state what ‘civil life’ and ‘orderly government’ have evolved to. However, their content affects whether measures protecting the environment should be re-established and ensured, and whether the Occupying Power may introduce provisions that protect the environment. Yet, it may be presumed that the terms include environmental protection as it has been established that protecting the environment is a public function of the modern state.144

7.2.2.2 A new exception

Because IHRL binds Occupying Powers, articles 43 and 64 have been interpreted to also allow the Occupying Power to “change legislation that is contrary to established human rights standards”.145_{Sassòli argues that because IHRL just came into being when the Convention was}

drafted, it was not included as an exception to the obligation to maintain law and institutions.146 This extension is also compatible with the essence of the Convention, which has been seen as a ‘bill of rights’ for local populations of armed conflict.147_{Yet, the ILC’s only other}

non-academic reference is to the UK’s Manual of the Law of Armed Conflict which refers to the “welfare of the population” and not to human rights specifically.148_{Hence, the commentary}

arguably reflects progressive development of international law.

7.2.2.3 Prolonged Occupations

Prolonged occupations challenge the underlying assumption in the law of occupation that occupations are temporary, thereby also challenging the conservationist principle. The ILC states that prolonged occupations require more proactive action, further narrowing the limits provided by the laws of armed conflict.149 Similarly, Sassòli argues that “a prolonged military occupation faces the need to adopt legislative measures in order to let the occupied country evolve”.150_{Indeed, in 1967 when Palestine was occupied, the Stockholm Declaration of 1972}

143_{Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of}

Belgium and the Kingdom of the Netherlands, 24 May 2005, Reports of International Arbitral Awards (UNRIAA), vol. XXVII, pp. 35–131 paras 81-82.

145_{ILC Draft Commentary 274; Sassòli (2005) 676.} 146_{Sassòli (2005) 676.}

147_{Arai-Takahashi 68.}

148_{UK, Ministry of Defence, The Manual of the Law of Armed Conflict (OUP 2004) 283-4.} 149_{ILC Draft Commentary 274-5, 268.}

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had not yet been drafted. In fact, “the current form and structure of the subject emerged in the mid 1980s”.151_{Hence, “[a]s the legislative function is a continuous, necessary function of every}

state on which the evolution of civil life depends”, the law and institutions of the occupied territory rights should not be frozen at the time the territory was occupied.152 Although the Hague Regulations and the Fourth Geneva Convention do not distinguish between occupations, the ILC’s conclusion conforms with the shift that took place, making the occupied population the primary beneficiaries.

7.3 Has the conservationist principle been stretched too far?

Draft principle 20(3) introduces the question of whether the occupied territory’s environment is better protected by maintaining law and institutions or by increasing the Occupying Power’s legislative powers. For the aforementioned reasons, the ILC is seemingly in favour of the latter. However, the question should also be considered in light of ‘transformative occupations’, such as the UK’s and US’ occupation of Iraq. Simplified, a transformative occupation sets out to permanently enhance rights and local political culture through a transformation of law and political institutions in the occupied territory.153_{Respecting existing law in the occupied}

territory may make sense “when the alternative is repression or even plunder by an occupier” but “when the alternative is greater protection of human rights and the introduction of democratic politics, the [conservationist] principle appears regressive”.154_{Yet, Fox concludes}

that international law does not support a substantial retreat from the conservationist principle.155 Moreover, whilst “it is one thing to say that occupiers should refrain from neglecting or mistreating inhabitants [...] [i]t is another to grant them licence to become agents of constitutional revolutions”.156

Furthermore, whilst the occupation of Palestine is not transformative, it provides an example of how stretching the conservationist principle for the protection of the environment may have a negative impact on the occupied population. Israel has designated approximately ten percent of the land in the West Bank as nature reserves.157 Accordingly, Israel has introduced laws prohibiting activities causing harm to the reserve, which have been interpreted as prohibiting

151_{Sands 21.} 152_{Sassòli (2005) 679; Benvenisti (2012) 246.} 153_{Fox 243-4.} 154_{ibid 242.} 155_{ibid 244.} 156_{ibid 241.}

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residence, agriculture and grazing in the area.158_{However, in relation to one nature reserve, the}

UN Office for the Coordination of Humanitarian Affairs reports that Palestinian farmers located within and adjacent to the reserve have had their olive trees uprooted and seized, and other communities who have lived in the area since the 1940s are displaced or risking displacement because they cannot sustain their herding livelihoods. Regardless of Israel’s environmental objectives, which have been questioned,159 their changes to law and institutions to protect the environment did not benefit the occupied population.

Lehto argues that there is always a tension between the conservationist principle and “forward-looking action that may be required of the occupying State so as to avoid stagnation”.160 In finding a balance, it is crucial that Occupying Powers cannot change legislation compatible with international law for it to “accord with their own legal conceptions”.161 Furthermore, the ILC suggests that, in relation to prolonged occupations, “it would be appropriate [...] to engage the population of the occupied territory in decision-making”.162 The ILC refers, inter alia, to principle 10 of the Rio Declaration which, in addition to public participation, emphasises access to justice and environmental information.163 However, the ILC could have done more to encourage public participation, access to justice and access to information, also outside the context of prolonged occupations, as it progressively empowered Occupying Powers to change law and institutions. Engaging the occupied population in environmental matters, subject to the Occupying Power’s safety concerns, is more likely to ensure that changes accord with the occupied population’s legal conceptions. The ILC might consider Benvenisti’s argument that one aim of the law of occupation should be to encourage the participation of the occupied population.164

158_{See OCHA, ‘Settlement expansion around an Israeli-declared “nature reserve”’ in ‘Humanitarian Bulletin:}

Monthly Report’ (October 2014)

<https://www.ochaopt.org/sites/default/files/ocha_opt_the_humanitarian_monitor_2014_11_26_english.pdf> accessed 14 December 2020, 14-16.

159_ibid.

160_{Lehto’s First Report 25.} 161_{ICRC Commentary 336.} 162_{ILC Draft Commentary 275.}

163_{ibid fn 1325; see also UNEP, ‘Guidelines for the Development of National Legislation on Information,}

Public Participation and Access to Justice in Environmental Matters’ (26 February 2010) SS.XI/5.

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8 Draft principle 21

Draft principle 21 stipulates that “to the extent that an Occupying Power is permitted to administer and use the natural resources in an occupied territory, for the benefit of the population of the occupied territory and other lawful purposes under the law of armed conflict, it shall do so in a way that ensures their sustainable use and minimizes environmental harm”. Draft principle 21 is primarily based on article 55 of the Hague Regulations, according to which the “occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct”.165

8.1 Safeguarding the capital of natural resources

8.1.1 Sustainable development

The rules of usufruct were traditionally interpreted to forbid “wasteful or negligent destruction of the capital value, whether by excessive cutting or mining or other abusive exploitation, contrary to the rules of good husbandry”.166_{Oppenheim’s statement that the Occupying Power}

is “prohibited from exercising his right in a wasteful or negligent way that would decrease the value of the stock and plant” clarifies that to ‘safeguard the capital’ meant safeguarding the natural resources’ financial value rather than also their social and environmental value.167

Draft principle 21 reflects that with the development of public international law, sustainability has become an integral element of the duty to safeguard the capital of natural resources.168_To

support its new interpretation, the ILC refers to Gabčíkovo-Nagymaros where the ICJ held that the bilateral treaty between Hungary and Slovakia was “open to adapt to emerging norms of international law”, in particular recent environmental norms.169_{The Court elaborated:}

“Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of

166_{Julius Stone, Legal Controls of International Conflict: a Treatise on the Dynamics of Disputes and War-Law}

(Stevens and Sons Limited 1954) 714.

167_{Lassa Oppenheim, International Law: A Treatise vol. II, War and Neutrality (2nd ed. Longmans, Green and}

Co. 1912), 175.

168_{ILC Draft Commentary 278.} 169_{Gabčíkovo-Nagymaros para 112.}

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the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations

- of pursuit of such interventions at an unconsidered and unabated pace, new

norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development”.170

In addition, sustainable exploitation of natural resources is a component of sustainable development.171 Hence, draft principle 21 was generally welcomed by states.172 For example, the Netherlands “agreed with the Special Rapporteur that, in relation to the environment, a modern-day interpretation of ‘usufruct’, as referred to in article 55 of the Hague Regulations, would include the ‘sustainable use’ of resources”.173

8.1.2 Minimising environmental harm

The Occupying Power shall use and administrate natural resources in a way that minimises environmental harm. Minimising environmental harm is not found in article 55, but the ILC states that it corresponds with the purpose of PEAC, which includes enhancing environmental protection through preventive measures for minimising damage to the environment.174

However, according to Austria, “the exercise of the right to administer and use natural resources in an occupied territory should aim not only to minimize, but also to prevent, environmental harm”.175_{Indeed, the ILC uses the obligation to prevent in draft principles 20(2)}

and 22, albeit in relation to significant environmental harm. 8.1.3 Natural resources

The sustainable use of natural resources in occupied territories applies to living as well as non-living natural resources, renewable as well as non-renewable natural resources. Yet, the only reference to a natural resource in article 55 is ‘forests’, which is a renewable resource. Schrijver posits that the application of the right of usufruct to non-renewable resources is controversial

170_{ibid 140.}

171_{Sands 219 and 222-225.} 172_{Lehto’s Second Report 6.}

173_{UNGA Sixth Committee ‘Summary record of the 29th meeting’ (10 December 2018) para 46.} 174_{Draft principle 2.}

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because it can be argued that any use of non-renewables depletes their capital.176_However,

during the occupation of Iraq, the UK and US informed the Security Council that they would administer Iraq’s oil for the benefit of the occupied population, leading Benvenisti to conclude that the controversy is of the past.177 Nevertheless, in the commentaries to the ILC’s draft articles on the law of transboundary aquifers, the ILC distinguished the sustainable use of renewable resources from the sustainable use of non-renewable resources. The ILC stated that the doctrine of sustainable utilisation fully applies to renewable resources and “requires measures to keep resources in perpetuity”.178 In comparison, because non-renewable resources cannot be meaningfully utilised and also kept in perpetuity, the aim is to “maximize the long-term benefits” from using the resource.179

However, the ILC does not address cases where the Occupying Power in its ‘home state’ shares natural resources with the occupied territory. This circumstance may arise when natural resources cross national territories or where a state is partially occupied.180 The ILC’s omission is surprising considering that Israel, as a long-standing Occupying Power, shares the Mountain Aquifer and the Jordan River with the OPT. As Benvenisti states, “the concentration of representation of both Israeli and West Bank interests in one authority is an unsatisfactory solution”.181

8.2 The purpose of using natural resources

The purpose of using natural resources and the ownership of the resources restrict Occupying Powers’ use of natural resources.182 In terms of the ownership of natural resources, the Hague Regulations generally prohibit the confiscation of private property.183 In comparison, the purpose of use requires elaboration.

176_{Nico J Schrijver, ‘Natural Resources, Permanent Sovereignty Over’ (June 2008) in Rüdiger Wolfrum (ed),}

The Max Planck Encyclopedias of Public International Law (online edn) para 20.

177_{Benvenisti (2012) 82.}

178_{ILC, ‘draft articles on the law of transboundary aquifers, with commentaries’ (2008) YILC vol. II (Part Two)}

28.

179_ibid.

180_{Eyal Benvenisti, ‘Water Conflicts during the Occupation of Iraq’ (2003) 97(4) AJIL 860, 871.} 181_{ibid 871.}

182_{Benvenisti (2012) 81.}

AN ASSESSMENT OF THE INTERNATIONAL LAW COMMISSION’S DRAFT PRINCIPLES ON PROTECTION OF THE ENVIRONMENT IN RELATION TO ARMED CONFLICTS IN SITUATIONS OF OCCUPATION

University of Amsterdam

Amsterdam Graduate School of Law