After five months of negotiations, a resolution from Ukraine on the protection of the environment in areas affected by armed conflict has been approved by consensus at the second meeting of the UN Environment Assembly (UNEA-2) in Nairobi. The resolution, which was co-sponsored by Jordan, the DRC, Iraq, South Sudan, Norway and Lebanon, is the most significant UN resolution of its kind since 1992. As the text was submitted to the plenary for final approval, Canada, and the EU and its Member States unexpectedly joined Ukraine as co-sponsors.
Back in 1992, concern over the environmental damage wrought by the 1991 Gulf War had fuelled international concern over the environmental legacy of conflict in a way not seen since the Vietnam War. This new resolution reflects not only a deeper understanding of the environmental implications of armed conflict throughout the conflict cycle but also growing international interest in finally tackling the weak state of legal protection for the environment and the inadequate systems of environmental response and recovery.
The resolution’s path to UNEA-2 – the new universal membership governing body of the UN Environment Programme – was strewn with objections and political manoeuvring. A minority objected to efforts to secure UNEP’s mandate to work on conflicts, while others opposed references on compliance for what is already a weak system of legal protection. There was also conflict over the framing of the environmental impact from human displacement. At the last minute, a deal was reached over UNEP’s mandate and reservations on numerous paragraphs were removed, with consensus soon found on language around the impacts of human displacement.
What does the resolution call for?
The law features prominently throughout the resolution, the official version of which will be made available shortly. States are urged to comply with the environmental provisions of international humanitarian law and to consider reflecting the ICRC’s 1996 guidelines on environmental conduct in war in their military manuals. The guidelines are modest in their scope and should be viewed as a baseline for military conduct on environmental protection in times of war. There is a call for legal capacity-building for States and they are also encouraged to implement all international law relevant to the protection of the environment in times of armed conflicts into national legislation. This last point is important as scholars increasingly argue that greater protection could be achieved through looking beyond international humanitarian law alone.
The resolution stresses the need to protect the environment in conflict and for its restoration following conflicts. It also emphasises the need to raise awareness of wartime environmental damage – to challenge the notion of the environment as the silent victim of conflict. States are also urged to cooperate closely on minimising and mitigating environmental harm.
UNEP is encouraged to work with a range of stakeholders, including civil society, to continue providing enhanced assistance to countries affected by conflict, and in the post-conflict phase, through post-crisis assessment and recovery. Meanwhile, Member States are called upon to support the development and implementation of programmes and policies aimed at preventing or reducing harm. A particular mention is made of the need to provide assistance to countries hosting UNESCO natural World Heritage Sites, such as the DRC. To ensure follow-up on the resolution, UNEP’s Executive Director is requested to report back on progress made to UNEA-3 – which will be in 2017 – or no later than UNEA-4 in 2019.
How the preamble frames the topic and UNEP’s mandate
The resolution’s preamble covers a great deal of ground. In places, seemingly contradictory language seeks to define UNEP’s mandate on conflicts. A number of States were concerned over any expansion of its mandate into conflict identification or prevention, while others argued that the UN General Assembly has requested that all organs of the UN fit conflict prevention into their work, in accordance with their respective mandates. Confused? You’re not alone: the product of a messy compromise during negotiations.
Since January, we have urged States to ensure that the humanitarian consequences of environmental degradation are reflected in the text. Colombia, Jordan and Lebanon were keen to ensure mention of the impacts of displacement, while we also sought to ensure that reference was made to human rights, the protection of vulnerable groups and gender. The language on environmental human rights was weaker than hoped and comprises a preambular paragraph in a March 2016 resolution from the UNHRC. The language on vulnerable groups is strong but, while gender survived the negotiations, it could have benefited from clarification of what gendered approaches mean in the context of conflict and the environment.
Why the resolution is important
The resolution serves a number of purposes. The breadth of legal frameworks it covers reflects the prevailing discourse on strengthening the protection of the environment in relation to armed conflicts reasonably well. The inclusion of key themes such as gender and displacement not only frames wartime environmental damage as a humanitarian issue but will also serve to encourage greater consideration of how these dimensions should be integrated into policy-making and programmes.
The focus on compliance and implementation serves as a reminder that not only is the existing law protecting the environment weak but that it is often poorly implemented and suffers from a lack of case law and precedent. UNEP should be encouraged by the consensus reached on the resolution, as it helps reinforce a mandate that, by its nature, can be politically problematic for what is a relatively small and arms-length UN body.
But the single most important thing, and certainly an observation from the preparatory negotiations and UNEA-2 itself, is that it has provided, and will continue to provide, a vehicle for States, international organisations and civil society to discuss, debate and engage on conflict and the environment. We have argued that the delivery of the Sustainable Development Goals will require a step change in how the international community deals with the environmental dimensions of armed conflict. This resolution is the start of a long overdue conversation, and its greatest legacy could be that it marks the moment where the protection of the environment in relation to armed conflicts stepped out of the legal seminars and into a political arena.
The Gaza resolution
When Morocco and the Arab Group announced the submission of a UNEA-2 resolution calling for an updated UNEP assessment of environmental conditions in the Gaza Strip back in February, history suggested it would prove controversial for some States. Just how controversial it would become surprised many and led to UNEA-2 ending in a dispute that threatened to overshadow the 25 resolutions it had successfully passed by consensus. Not only did it relate to the Israeli-Palestinian conflict but it would also be the only country or conflict-specific resolution tabled, neither of which are approaches that delegations wish to encourage.
Morocco’s text had been objected to by the US, Canada and Israel, with the EU proposing a series of deletions that would have dramatically shortened it. During UNEA-2, it was clear that no consensus was likely and Morocco withdrew its text. It was quickly replaced by a five paragraph technical resolution sponsored by the G77+China. In heated negotiations and a string of informal consultations during UNEA-2, it became apparent that Israel’s objections could not be overcome and that the US would rather it be quietly buried. It was clear that it would come to a vote and in doing so it would break with the highly valued consensus model established at UNEA-1.
That it was Israel that demanded a vote late on the final day of UNEA-2 surprised many who had assumed that the G77+China would trigger it. In their intervention, Israel placed the blame for the vote on everyone but themselves and that those supporting the resolution would: “…share the shame of turning this important week into a Gaza summit,” and that: “…they will be marked in the history of UNEA as the ones who brought a resolution to a vote, turning environmental issues into political issues.”
Talks on Gaza collapse
In the extraordinary scenes that followed late into the night on Friday, the plenary descended into confusion, dispute and occasional farce. Votes were repeatedly called for on procedural matters (votes to decide whether to take a vote) and on substantive matters (the content of the G77+China’s Gaza resolution). A procedural vote was eventually taken on whether or not to vote, only for it to emerge that the delegations remaining in the plenary were not quorate under UNEA-2’s Rules of Procedure. The hours dragged on, with the beleaguered secretariat clearly under pressure as interventions from States became increasingly heated.
A final roll call of those present at 3am confirmed that there were enough delegations in the room to legally meet and debate but not enough to vote or take decisions. As a roll call had not been taken at the beginning of the plenary, Pakistan, Egypt and Syria angrily questioned the legitimacy and legality of the resolutions passed earlier in the night – including the resolution on conflicts – and strongly criticised the secretariat. Interventions from China, the EU and many others demonstrated that the majority of States viewed the resolutions as legal.
With 4am approaching, and after numerous delays and consultations, outgoing UNEP Executive Director Achim Steiner made an emotional intervention, promising that the actions of the secretariat would be reviewed but urging States to keep faith with UNEA. He also expressed his frustration at member states that seek to block the legitimate work of UN agencies in relieving human suffering.
It was a depressing end to an otherwise successful week and, as Pakistan pointed out as the session was finally called to a halt, the people of Gaza continue to suffer from the health risks caused by the environmental legacy of its recurrent conflicts. The resolution has been buried for now but the need to relieve that suffering continues unabated. Few of those involved in the disputed session came out of it well and UNEP has lessons to learn if UNEA is to continue to develop into the global environmental forum the world urgently needs. As for the much needed UNEP assessment in Gaza, that will require the consent of both the Israeli and Palestinian authorities, as well as financial support from the international community – something that seems unlikely to materialise any time soon.
It just remains to thank Ukraine for its initiative and hard work on the resolution and to all the delegations that have supported them during the last five months and contributed constructive language. We also wish to thank all those who contributed their insights to our briefings and publications prior to UNEA-2, and our event panel in Nairobi, with particular thanks to Amb. Tsymbaliuk of Ukraine and his team and Amb. Pataki of Romania. Thanks also to Norwegian People’s Aid for their financial support for our advocacy work.
Doug Weir manages the Toxic Remnants of War Project and, together with Jessica Dorsey of PAX, represented the TRW Network at UNEA-2.