Canada's "Greening Defence" Initiative and the UN Principles on Protecting the Environment During Armed Conflict
Allard LLM CL 2023
Jul 12, 2023
This was the opening statement of United Nations (UN) Secretary-General António Guterres at Columbia University in December 2020. It painted a grim picture of how human activities harm the planet. One such destructive activity is war, where the environment is a silent witness to atrocities and a silent victim as well.
In 2011, in recognition that the environmental effects of war may be long-term and irreparable, an International Law Commission (ILC) Working Group recommended the development of a draft framework convention or statement of principles on the protection of the environment in times of armed conflict. This work item was then included in the ILC program in 2013. In early 2022, ILC released the “Draft principles on protection of the environment in relation to armed conflict” (PERAC). The timing was sadly opportune, as environmental damage in the war in Ukraine was already estimated at US $35 billion.
In December 2022, the UN General Assembly formally adopted PERAC, which contains 27 principles divided into five Parts: Parts One and Two cover scope and principles of general application (Principles 1-11); Part Three states principles applicable during armed conflict (Principles 12-18); Part Four deals with principles applicable in situations of occupation (Principles 19-21); and Part Five declares principles applicable after armed conflict (Principles 22-27).
PERAC and Canada
In the 2021 Comments and Observations on the draft principles adopted at the ILC’s Seventy-Third Session, Canada submitted that PERAC created ambiguity and recommended that each Principle should indicate whether it is “an obligation or a recommendation for the progressive development of law.” Such clarifications would have a serious effect on state obligations, given that the Supreme Court of Canada in Nevsun Resources Ltd v. Araya held that customary international law is automatically incorporated into domestic Canadian law as part of the common law.
This concern, though, may have been addressed in the recent adoption of PERAC, which states that “to the extent that they do not reflect customary or treaty-based obligations of States," the principles provide "recommendations for the progressive development of international law through examples of effective voluntary measures to enhance the protection of the environment in relation to armed conflicts.”
While Canada has not been an “occupying power” within the meaning of international law, its military forces have participated in international operations on counterinsurgency and peace support. Thus, Canada’s domestic laws and policies may contribute to the development and execution of PERAC's general principles and those applicable after armed conflict, such as Principles 7 (peace operations) and 22 (peace processes), which provide:
Principle 7 (Peace operations):
States and international organizations involved in peace operations established in relation to armed conflicts 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 resulting from those operations.
Principle 22 (Peace processes):
1. Parties to an armed conflict should, as part of the peace process, including where appropriate in peace agreements, address matters relating to the restoration and protection of the environment damaged as a result of the conflict.
2. Relevant international organizations should, where appropriate, play a facilitating role in this regard.
Canada's attempts at greening defence
In 2017, the Department of National Defence (DND) published its Strong, Secure, Engaged Defence Policy and adopted a number of initiatives aimed at "greening defence" and improving the sustainability of its operations. Among the initiatives is the Strategic Environmental Assessment (SEA) process, which ensures consideration of the environment as well as the Federal Sustainable Development Strategy (FSDS) in policies and programs. DND and the Canadian Armed Forces also developed the Defence Energy and Environment Strategy (DEES) to minimize their environmental footprint and reduce climate change risks, among other things, in its operations.
In light of the recent adoption of PERAC, these initiatives may pave the way for Canada to be a leader in environmental law and protection in the context of military operations. In its 2020-2023 strategy, DND committed to 16 targets grouped into four themes: (1) energy efficiency; (2) climate change; (3) sustainable real property; and (4) green procurement.
DND is the largest greenhouse gas (GHG) emitter in the federal government. The DEES 2020-2021 Results Report showed that the DND had a target to reduce GHG emissions from facilities and fleets by 40% from 2005 levels by 2030, and that so far GHG emissions were reduced by 38%. Low-carbon investments were prioritized in new buildings and retrofits. Another target was to divert 75% (by weight) of non-hazardous operational waste, including plastic waste, from landfills by 2030. A waste reduction and diversion plan outline was completed, and waste audits have been conducted. This progress feeds into the FSDS goals related to clean energy, innovation and green infrastructure, reduction of waste, and climate action, and to the federal government’s transition to “low-carbon, climate resilient and greening operations.”
DND is also committed to managing contaminated sites. In the DEES 2021-2022 Results Report, DND aimed to reduce contaminated sites liability, the expected cost of cleaning a contaminated site, by an average of 10% per year by 2023; and the report showed a 12.6% reduction. DND also “completed a PFAS Firefighting Class B foam and equipment inventory” to develop a plan for alternative products. The management of contaminated sites and harmful substances is aimed at reducing the risks to human health and environment consistent with FSDS, following the Federal Contaminated Site Action Plan, and in view of the policy framework of managing federal property in a sustainable and financially responsible manner.
Further, legal protection to wildlife species has been established by the Species at Risk Act and a Species at Risk Geographical Information System standard (GIS standard) was implemented to support species at risk and their habitat. DND signed a Memorandum of Agreement with the Department of Environment and Parks Canada Agency “to guide the use of available resources to address protection and management of Species at Risk, their individuals, residences and critical habitats efficiently and effectively on Defence Establishments.”
Generally, Canada seems to be on track in achieving its DEES targets.
Translating greening defence internationally
As Canada is not traditionally an “occupying power,” its contributions to PERAC may be in peace operations as reflected in Principles 7 and 22. PERAC Commentaries acknowledge that while “peace operations” is not defined in international law, it applies to operations established in relation to armed conflict where various state and non-state actors may be present. This includes “peacekeeping” and “peacebuilding” operations. As the Commentaries note, Principles 7 and 22 aim to minimize the environmental impact of these operations and to encourage the inclusion of environmental provisions in peace agreements.
Canada’s initiatives aimed at greening defence domestically may provide a template for how PERAC principles, especially those relating to peace operations, may be achieved. By implementing SEA processes and publicly sharing progress, as done in the DEES Results Reports, DND is able to ensure that plans and programs are publicly transparent and in line with FSDS. While their strategy relies on FSDS, which is aligned with the UN 2030 Agenda for Sustainable Development, as its main framework given its applicability across the federal government, their strategy is also consistent with PERAC’s main purpose of protecting the environment through the prevention, mitigation, and remediation of environmental harm.
The big picture
By laying down a main framework, establishing concrete and strategic plans to meet DEES targets, and monitoring and reporting on performance indicators, Canada has shown itself to have both the technical and administrative experience to put PERAC principles into action. Measurement and monitoring of GHG emissions, managing contaminated sites, and identifying and mapping species at risk and their habitats are only some of the work done by DND to meet its DEES targets. These endeavours are also relevant to peace operations, as protection and rehabilitation of the environment can play a vital role in rebuilding communities affected by armed conflict. While PERAC may have not provided for an implementation vehicle, it nonetheless offers an opportunity for Canada to step up and demonstrate how its greening defence strategies may be translated internationally to promote and achieve sustainable peace operations.
- Centre for Law and the Environment