The Nordic statement to the sixth committee on Agenda Item 78: Report of the International Law Commission on the work of its sixty-sixth session on 3 November 2014, was delivered by Mr. Øyvind Hernes, Deputy Director at the Norwegian Ministry of Foreign Affairs
I have the honour to make this statement on behalf of the five Nordic countries: Denmark, Finland, Iceland, Sweden and Norway. In this Part 3 of the Committee’s consideration of the ILC report, I will address these three topics:
– Identification of customary international law (Chapter X)
– Protection of the environment in relation to armed conflicts (Chapter XI)
– Provisional application of treaties (Chapter XII)
I will now turn to Chapter XI of the ILC report, which focuses on the environmental rules and principles applicable to the protection of the environment in peacetime.
We would like to start by thanking Special Rapporteur Dr Marie Jacobsson for her preliminary report to the ILC on the protection of the environment in relation to armed conflicts. This is a comprehensive and useful report on Phase I of the topic.
It is well known that modern warfare causes serious damage to the natural environment, and that armed conflict has severe and long-lasting consequences both for nature itself and for civilian populations who depend on natural resources for their survival. Open warfare may result in physical destruction of the natural environment; in addition, related military activities, including large-scale transport and other operations, may pollute soils, destroy plant life and disrupt water flow, disturbing the balance of ecosystems.
The Nordic countries consider it vital to enhance protection of the environment before, during and after armed conflict. Clarification of existing international law may help us to achieve this aim. The Nordic countries therefore welcomed the decision by the Commission to include this topic in its programme of work, and we have been encouraged by the leadership and dedication demonstrated by Dr Jacobsson.
In her report, the Special Rapporteur notes that the protection of the environment in armed conflicts has to this point been viewed primarily through the lens of the law of armed conflict. We agree with the Special Rapporteur that this perspective is clearly too narrow, as modern international law recognises that the international law applicable during an armed conflict may be wider than the law of armed conflict. The International Law Commission states clearly in a recent work on the effects of armed conflicts on treaties that that the existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties. Indeed, in its draft articles, the Commission includes an indicative list of treaties whose subject matter implies that they continue in operation during armed conflict.
Against this background, we also agree with the three-phased approach adopted by the Special Rapporteur. We believe the present report on the environmental rules and principles applicable to the protection of the environment in peacetime will provide the necessary basis for continued work and discussions on phases II and III, which will deal with measures to be taken during an armed conflict and in the post-conflict phase respectively.
We also agree with the Special Rapporteur that one should not attempt to draw a strict line between the three phases. In this context we would like to stress that identifying and clarifying the obligations that apply during armed conflict would be an important step towards reducing the environmental damage in such situations.
Furthermore, we agree that the scope of this topic must be restricted in some way, for practical, procedural and substantive reasons, and that it is necessary to exclude certain issues. We generally agree with the limitations proposed in the report. All in all, we consider that this first report on the protection of the environment in relation to armed conflicts provides a very good basis for continued work on the topic.
Let me take this opportunity to briefly mention that the Governments of Denmark, Finland, Sweden and Norway, together with our National Red Cross Societies, are continuing our own work on this issue. This is a follow-up of our joint pledge during the 31st International Conference of the Red Cross and Red Crescent in 2011.
Our work plan falls in two parts. The first part involves an empirical study of the effects of armed conflicts on the environment, based on reviewing a cluster of representative contemporary armed conflicts. This study is well under way. Secondly, we will organise an international expert meeting to discuss the existing legal framework for the protection of the environment in relation to armed conflict, and to identify any gaps in this framework, based on the empirical data collected in the report. The conclusions of the expert meeting will be reported to the 32nd International Conference of the Red Cross and Red Crescent, which will take place in 2015.