CYIL vol. 13 (2022)

PAVEL ŠTURMA CYIL 13 ȍ2022Ȏ Part Two comprises principles of general application. Those principles apply before an armed conflict but also in other temporal phases. Principle 3 recognizes that States shall, pursuant to their obligations under international law, take “effective legislative, administrative, judicial and other measures to enhance the protection of the environment in relation to armed conflicts”. Paragraph 2 encourages States to voluntarily adopt further effective measures. 29 Principle 4 provides that States should designate, by agreement or otherwise, areas of environmental importance as protected zones in the event of an armed conflict, including where those areas are of cultural importance. 30 Principle 5 concerns the protection of the environment of indigenous peoples in the event of an armed conflict. 31 Principle 6 addresses agreements concluded between States or between States and international organizations concerning the presence of military forces. It recommends that States should, as appropriate, include in such agreements, provisions on environmental protection in relation to armed conflicts. 32 Principle 7 relates to peace operations in relation to armed conflicts. States shall consider the impact of such operations on the environment and take, as appropriate, measures to prevent, mitigate, and remediate the harm to the environment. 33 Principle 8 addresses the environmental effects of conflict-related human displacement. 34 Principle 9 that focuses on State responsibility is a complex provision. Paragraph 1 is based on the general rule. Accordingly, an internationally wrongful act, in relation to an armed conflict, that causes damage to the environment entails the international responsibility of that State, which is under an obligation to make full reparation for such damage. Paragraph 2 states that the draft principles are without prejudice to the rules on responsibility of States. The second without prejudice clause (para. 3) then refers to the rules on the responsibility of non-State armed groups and the rules on individual criminal responsibility. 35 Principle 10 recommends that States take appropriate measures to ensure that business enterprises operating in or from their territories, or territories under their jurisdiction, exercise due diligence with respect to the protection of the environment, including in relation to human health, in areas affected by an armed conflict. 36 Principle 11 is closely related to principle 10 and addresses the liability of business enterprises for damage to the environment in areas affected by an armed conflict. 37 PartThree includes principles applicable during armed conflict, irrespective of classification as international or non-international. The draft principles use the “environment” rather than the term “natural environment”. However, according to the commentary, “this change should not be understood as altering the scope of the existing conventional or customary law of armed conflict”. 38

29 Ibid., p. 101. 30 Ibid., p. 105. 31 Ibid., p. 108. 32 Ibid., p. 112. 33 Ibid., p. 114. 34 Ibid., p. 116. 35 Ibid., p. 120. 36 Ibid., p. 125. 37 Ibid., p. 131. 38 Ibid., p. 136.

378