CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE WORK OF THE INTERNATIONAL LAW COMMISSION AT THE FINAL YEAR… Principle 12 is inspired by the Martens Clause, which originally appeared in the preamble of the 1899 Hague Convention with Respect to the Laws and Customs of War on Land, 39 but amended for the purpose of the protection of the environment. 40 Principle 13 includes three paragraphs that provide for the general protection of the environment during armed conflict. The proposal for this principle provoked a great debate within the Commission, which was resolved by the insertion of a reference to the applicable international law. 41 Principle 14 provides that “the law of armed conflict, including the principles and rules on distinction, proportionality and precautions, shall be applied to the environment, with a view to its protection”. 42 Principle 15 concerns the prohibition of reprisals against the environment. 43 Principle 16 sets forth that “pillage of natural resources is prohibited”. 44 Principle 17 (Environmental modification techniques) has been modelled on Article 1(1) of the 1976 Convention on the Prohibition of Military and Any Other Hostile Use of Environmental Modification Techniques. States, in accordance with their international obligations, shall not engage in use of such techniques. 45 Principle 18 (Protected zones) provides that an area of environmental importance designated by agreement as a protected zone shall be protected against any attack, except insofar as it contains a military objective. 46 Part Four comprises three draft principles applicable in situations of occupation. Principle 19 sets the general obligation of an Occupying Power to respect and protect the environment of the occupied territory and take environmental considerations into account in the administration of such territory. 47 Principle 20 provides for the obligations of an Occupying Power with respect to the sustainable use of natural resources. 48 Principle 21 contains the established principle that each State has an obligation not to allow significant harm to be caused from its territory or jurisdiction to the environment of other States or to areas beyond national jurisdiction. Here, it is applied to an Occupying Power in the specific situation of occupation. 49 Part Five includes principles applicable after armed conflict. Principle 22 suggests that parties to an armed conflict should, as a part of the peace process address matters relating to restoration and protection of the environment damaged as a result of the conflict. 50 According to principle 23, to facilitate measures to remediate harm to the environment, States and relevant international organizations shall share and grant access to relevant information in accordance with their obligations under applicable international law. 51 39 Convention (II) with Respect to the Laws and Customs of War on Land (The Hague, 29 July 1899). 40 “In cases not covered by international agreements, the environment remains under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.” See Report of the International Law Commission, 2022, ibid., p. 136.

41 Ibid., p. 140. 42 Ibid., p. 143. 43 Ibid., p. 146. 44 Ibid., p. 148. 45 Ibid., p. 152. 46 Ibid., pp. 153–154. 47 Ibid., p. 158. 48 Ibid., p. 166. 49 Ibid., pp. 169–170.

50 Ibid., p. 171. 51 Ibid., p. 175.

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