CYIL vol. 10 (2019)

PAVEL ŠTURMA CYIL 10 ȍ2019Ȏ status in the annex. 35 All in all, draft conclusions, while they are a result of a compromise reached in the Commission, present 50 years after the adoption of the Vienna Convention another important step to confirmation of the concept of jus cogens and clarification of its The Commission had before it the second report of the Special Rapporteur Ms. Marja Lehto. 36 As reported in the past volume of this journal, she continued in the work of the first Special Rapporteur Ms. Marie Jacobsson and brought the topic to the first reading.The present report addressed questions related to the protection of the environment in non-international armed conflicts, and matters related to responsibility and liability for environmental damage. Following its consideration of the topic in 2019, the Commission adopted, on its first reading, 28 draft principles together with commentaries thereto. It also decided to transmit the draft principles to Governments, international organizations, the International Committee of the Red Cross, and the Environmental Law Institute, for comments and observations. The text of the draft principles consists of five parts. The introductory Part One includes draft principles 1 and 2 on scope and purpose. The latter sets forth that the present draft articles aim at “enhancing the protection of the environment in relation to armed conflict, including through preventive measures for minimizing damage to the environment during armed conflict and through remedial measures”. 37 Part Two deals with principles of general application (draft principles 3 to 11), meaning that those principles apply in all phases, prior, during, and after armed conflict. They include principles concerning measures to enhance the protection of the environment, designation of protected zones (areas of major environmental and cultural importance), protection of the environment of indigenous peoples, agreements concerning the presence of military forces in relation to armed conflict, peace operations, and human displacement. They also address the issues largely debated this year, namely State responsibility, corporate due diligence, and corporate liability. Part Three includes principles 12 to 19, applicable during armed conflict, such as the Martens Clause with respect to the protection of the environment, which is an innovative modification of the well-known clause for the protection of the environment. This part also includes a general protection of and the application of the law of armed conflict to the natural environment, environmental considerations, prohibition of reprisals against the natural environment, protected zones, prohibition of pillage of natural resources, and the prohibition of environmental modification techniques. Part Four (draft principles 20 to 22) addresses principles applicable to situations of occupation, such as the general obligation of an Occupying Power to respect and protect the environment of the occupied territory, sustainable use of natural resources, and exercise of due diligence. Part Five (draft principles 23 to 28) focuses on principles applicable after 35 Ibid., pp. 23-27: “Annex: (a) The prohibition of aggression; (b) The prohibition of genocide; (c) The prohibition of crimes against humanity; (d) The basic rules of international humanitarian law; (e) The prohibition of racial discrimination and apartheid; (f) The prohibition of slavery; (g) The prohibition of torture; (h) The right to self- determination.” 36 See doc. A/CN.4/728 (2019). 37 See doc. A/CN.4/L.930 and Add.1, pp. 7-8. meaning and legal consequences in contemporary international law. 2.3 Protection of the environment in relation to armed conflicts

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