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1. Protecting Protected Areas in Bello: Learning From Institutional Design and Conflict Resilience in the Greater Virunga and Kidepo Landscapes

Author:
Elaine (Lan Yin) Hsiao
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
It has often been cited that major armed conflicts (>1,000 casualties) afflicted two-thirds (23) of the world’s recognized biodiversity hotspots between 1950 and 2000.1 In 2011, the International Law Commission (ILC) included in its long-term work program Protection of the Environment in Relation to Armed Conflict.2 This led to the adoption of twenty-eight Draft Principles, including designation of protected zones where attacks against the environment are prohibited during armed conflict.3 Protected zone designations apply to places of major environmental and cultural importance, requiring that they “[...] shall be protected against any attack, as long as it does not contain a military objective.”4 Most research on armed conflict and protected areas has focused on impacts to wildlife and less on how to protect these natural habitats from the ravages of armed conflict.5 This article highlights some of the gaps in the ILC Draft Principles towards protecting protected zones in bello. It uses transboundary protected areas (TBPAs) formalized through multilateral agreements to illustrate challenges on the ground. TBPAs are internationally designated “[...] protected areas that are ecologically connected across one or more international boundaries [...]” and sometimes even established for their promotion of peace (i.e., Parks for Peace).6 There is little legal research on how to design TBPA agreements for conflict resilience, conflict sensitivity, and ultimately positive peace.7 The research draws from two case studies in Africa’s Great Rift Valley: the Greater Virunga Landscape (GVL) between the Democratic Republic of the Congo (DRC), Rwanda, and Uganda, and the Kidepo Landscape, which forms part of the broader Landscapes for Peace initiative between South Sudan and Uganda. Both suffer from armed conflicts of various types and present two of the only TBPAs in the world that have incorporated environmental peacebuilding into their transboundary agreements.8 The case studies illustrate different approaches to TBPA design and the pros and cons of each modality in the context of conflict resilience and conflict sensitivity. This guides us on how to better protect protected areas in bello, ensuring that protected zones endure on the ground and not just in principle.
Topic:
Environment, Culture, and Conflict
Political Geography:
Africa, Democratic Republic of the Congo, and Rwanda

2. Through the Looking Glass: Corporate Actors and Environmental Harm Beyond the ILC

Author:
Daniella Dam-de Jong and Saskia Wolters
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Corporate activities take place in a variety of social contexts, including in countries affected by armed conflict. Whether corporations are physically present in these regions or merely do business with partners from conflict zones, there is an increased risk that their activities contribute to egregious human rights abuses or serious environmental harm. This is especially so for corporations active in or relying on the extractives sector. It is against this background that the ILC included two principles addressing corporate responsibility for environmental harm in its Draft Principles on the protection of the environment in relation to armed conflict. Both principles explicitly call on the home States of these corporations to give effect to their complementary role in regulating and enforcing corporate social responsibility. Draft Principle 10 addresses the responsibility of home States to regulate multinational corporations under the heading of “corporate due diligence”, while Draft Principle 11 addresses the responsibility of home States to hold multinational corporations liable for environmental damage caused in conflict zones. The current contribution engages with the potential normative foundations underpinning extraterritorial responsibilities for the home States of multinational corporations with respect to the prevention and remediation of environmental harm in conflict zones, focusing on international humanitarian law and international human rights law. It concludes that the Draft Principles are certainly indicative of the direction in which the law is evolving, but that no firm obligations beyond treaty law can be discerned as of yet. It was therefore a wise decision to phrase the respective Draft Principles as recommendations instead of obligations. At the same time, there are sufficient indications to conclude that it seems a matter of time before it is accepted that States have distinct obligations under customary international law for which their responsibility may be engaged. It is argued that the ILC Draft Principles provide an important impetus to these developments, not in the least because they provide a reference to States regarding the state-of-the-art and guidance for future action.
Topic:
International Law, Conflict, and Multinational Corporations
Political Geography:
Global Focus

3. Business, Armed Conflict, and Protection of the Environment: What Avenues for Corporate Accountability?

Author:
Marie Davoise
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In July 2019, the International Law Commission (ILC) provisionally adopted, on first reading, a series of draft principles on the protection of the environment in relation to armed conflict (the Draft Principles). The role of businesses in armed conflict is addressed in Draft Principle 10 and Draft Principle 11. The latter, in particular, requires States to implement appropriate measures to ensure that corporations operating in or from their territories can be held accountable for environmental harm in the context of armed conflict. The inclusion of those two Draft Principles reflects increasingly vocal calls for corporate accountability, which has been the focus of the growing field of Business and Human Rights (BHR), an umbrella term encompassing a variety of legal regimes from tort law to criminal law. This contribution will look at the link between businesses, the environment, and armed conflict. Using the newly adopted Draft Principle 11 as a starting point, it explores three major liability regimes through which businesses could be held accountable for damage to the environment in armed conflict: State responsibility, international criminal law, and transnational tort litigation. Using case studies, the article discusses some of the challenges associated with each of those regimes, before concluding that the cross-fertilization phenomenon observed in this article (between public/private law, domestic/international level, and across various jurisdictions) is making BHR an increasingly salient discipline and useful tool in the fight against impunity for corporate environmental harm in armed conflict.
Topic:
Human Rights, International Law, Business, and Conflict
Political Geography:
Global Focus

4. Enhancing Environmental Protection During Occupation Through Human Rights

Author:
Karen Hulme
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Environmental protection is not specifically included in treaty law relating to State obligations during situations of occupation. While clearly not of the same scale as damage caused to the environment during armed conflict, damage caused during occupation is often similar in nature – largely due to those who seek to exploit any governance vacuum and a failure to restore damaged environments. What can human rights offer in helping to protect the environment during occupations? What protection can be offered by an analysis of environmental human rights law?
Topic:
Environment, Human Rights, Governance, and Conflict
Political Geography:
Global Focus

5. The Martens Clause and Environmental Protection in Relation to Armed Conflicts

Author:
Dieter Fleck
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The existing treaty law on the protection of the natural environment during armed conflicts is less than adequate. Treaty provisions relating to international armed conflicts are limited to the prohibition of damage of an extreme kind and scale that has not occurred so far and may hardly be expected from the conduct of hostilities unless nuclear weapons would be used. Even in such a scenario, States possessing nuclear weapons have explicitly objected to the applicability of that treaty law. For internal wars, no pertinent treaty provisions exist in the law of armed conflict. Yet multilateral environmental agreements concluded in peacetime stand as an alternative approach to enhance environmental protection during war. As a civilian object, the environment may not be targeted nor attacked in an armed conflict, but this does not exclude collateral damage, nor does this principle as such offer specific standards for proportionality in attacks. In an effort to close these apparent gaps of treaty law, the present contribution looks into other sources of international law that could be used. In this context, the author revisits the role of the famous Martens Clause in the interplay of international humanitarian law, international environmental law, and human rights law. The role of the Clause in closing gaps caused by the indeterminacy of treaty law is reviewed and customary rules, general principles, and best practices are considered to this effect. For the protection of the natural environment during armed conflicts, the Martens Clause may, indeed, be used as a door opener to facilitate the creation and application of uncodified principles and rules. Particular standards for proportionality in attacks can be derived from the Martens Clause. Pertinent soft law instruments need to be developed in international practical cooperation and by academia. Yet it deserves further study to explore whether, and to what extent, the Martens Clause, which was adopted in the law of armed conflict, may also apply in post-conflict peacebuilding as a case of interaction between the jus in bello and the jus post bellum, at least as far as the protection of the natural environment is concerned.
Topic:
International Law, Treaties and Agreements, Humanitarian Intervention, and Conflict
Political Geography:
Global Focus

6. Precaution in International Environmental Law and Precautions in the Law of Armed Conflict

Author:
Michael Bothe
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The protection of the environment in relation to armed conflict, in particular during armed conflict is a complex problem as it involves at least two different fields of international law, the law of armed conflict (international humanitarian law) and international environmental law. Their mutual relationship is a delicate issue. International humanitarian law is not necessarily lex specialis. Three principles deserve particular attention in this connection: as to general international environmental law, the principle of prevention and the precautionary principle, as to international humanitarian law the duty to take precautions. The terms prevention and precaution are used in different contexts in environmental law (both national and international) and in the law of armed conflict. The duty, imposed by international humanitarian law, to take precautions has much in common with, but must be distinguished from, the precautionary approach of general environmental law. This paper shows what these principles mean and how they relate to each other. It answers the question to what extent the rules based on these concepts are effective in restraining environmental damage being caused by military activities. The application of these principles in peace and war serves intergenerational equity and is thus an important element of sustainable development.
Topic:
Environment, International Law, Humanitarian Intervention, and Conflict
Political Geography:
Global Focus

7. Advancing the Rule of Law Through Executive Measures: The Case of MINUSCA

Author:
Edith Vanspranghe
Publication Date:
08-2019
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) has been mandated to implement “urgent temporary measures” in the form of arrests and detentions of individuals. This rather innovative mandate brings about several legal and conceptual consequences that the article addresses, focusing on the compatibility of these measures with UN peacekeeping norms and principles and with past UN practice. In addition, the measures are said to contribute to law and order, public safety, the fight against impunity, and to the rule of law. This sheds light on the UN’s interesting conception of the rule of law in the Central African Republic and in conflict and post-conflict settings in general.
Topic:
International Law, United Nations, Conflict, and Rule of Law
Political Geography:
Africa and Central African Republic

8. Reconciling the Irreconcilable? – The Extraterritorial Application of the ECHR and its Interaction With IHL

Author:
Severin Meier
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines the extraterritorial application of the European Convention on Human Rights (ECHR) during international armed conflict. After a brief discussion of the different historic origins of international human rights law and international humanitarian law (IHL), the article examines the test for establishing jurisdiction under Article 1 of the ECHR. A critical analysis of some contentious legal issues regarding derogations completes the picture of when jurisdiction is established. Subsequently, the article considers the interaction between the ECHR and IHL in international armed conflicts and concludes by arguing that a balance must be found between protecting human rights in international armed conflicts while not interfering unduly with IHL.
Topic:
Human Rights, International Law, and Conflict
Political Geography:
Europe