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Archbishop Auza: Commentary on Protection of Environment During War

Report of the International Law Commission

On November 5, Archbishop Bernardito Auza, Permanent Observer of the Holy See to the United Nations, gave a statement before the Sixth Committee of the 73rd Session of the U.N. General Assembly on Agenda item 79, dedicated to those sections of the Report of the International Law Commission that focused on environmental protection in relation to armed conflicts, the immunity of State officials from foreign criminal jurisdiction and Sea-level rise in relation to international law.

Archbishop Auza expressed appreciation for the International Law Commission’s adoption of draft principles on the protection of the environment in relation to armed conflicts, noting that at least 40 percent of all conflicts between States are associated with natural resources. Archbishop Auza said that the immunity of State officials from foreign jurisdiction must be respected, but some egregious criminal acts should be excluded from immunity. He encouraged a focus on procedural issues such as timing, invocation, and waivers, as these contribute to even-handed and transparent handling of immunity issues while protecting just sovereignty concerns. He said that sea-level rise demands more than laws, but, consistent with Pope Francis’ call for “ integral ecology,” an integrated, ethical approach that highlights the consequences of rising sea-levels on armed conflicts.

Following is the Archbishop’s Full Intervention

Mr. Chair,

The Holy See notes with appreciation that the International Law Commission (ILC) has adopted a number of draft principles on the protection of the environment in relation to armed conflicts. The ILC has also transmitted the draft principles to Governments, international organizations, and others for comments and observations. This work is timely and required. As Pope Francis has expressed: “War always causes serious damage to the environment.”[1]

A report published by the United Nations Environment Programme (UNEP) noted that “since 1990, at least eighteen violent conflicts have been fuelled by the exploitation of natural resources. Looking back over the past sixty years, at least forty percent of all intrastate conflicts can be associated with natural resources.”[2] Not only that exploitation of high-value resources — like timber and precious minerals, or scarce ones like fertile land and water — provoke conflicts; conflicts, in turn, put immense pressure on those treasured natural resources, as they are exploited as means in waging conflicts. In other words, we fight over the ever-more scarce resources of our planet and exploit the same resources to continue our fights.

Mr. Chair,

My delegation notes that the ILC continues its efforts to explore the role of a State official’s immunity from foreign criminal jurisdictions.

The immunity of State officials from a foreign jurisdiction is a crucial, long-standing principle of State sovereignty and international diplomacy that must be respected. However, there are some egregious criminal acts of international concern that never fall within the legitimate activities of a public official and, therefore, should be excluded from any immunity. Furthermore, the absence of a clear distinction between immunity for state officials in carrying out their duties and legitimate legal concerns in the face of suspected criminal activity could confuse immunity with impunity.

As this Committee and the International Law Commission has long been aware, the challenge is to come to an understanding that takes into account all these important aspects, striking a balance between the privileges that State official should enjoy in carrying out their official duties and the accountability and propriety that should be the marks of all public servants. Such challenges are augmented by diverging sovereignty concerns, as well as the competing desires to avoid not only impunity but also politically motivated prosecutions.

My Delegation continues to hold that a viable way forward in the discussions on this topic is to focus on the procedural issues that arise with immunity, inter alia timing, invocation, and waiver, all of which are important for even-handed and transparent handling of immunity issues while protecting just sovereignty concerns. Indeed, proper consideration of this topic requires deliberation and careful treatment of, and attention to, State practice concerning the claims of immunity, as well as the mechanisms for communication, consultation, cooperation, and international judicial assistance in situations where immunity arises.

Mr. Chair,

The Holy See also welcomes that at its 70th session (2018), the International Law Commission included the topic “Sea-level rise in relation to international law” and that the United Nations General Assembly followed this up by calling upon the Commission to take into consideration the comments, concerns, and observations expressed by Governments during the debate in the Sixth Committee (UNGA resolution 73/265 of 22 December 2018).

As is also the case for the Commission’s and this Committee’s consideration of protecting the environment in relation to armed conflict, the topic of sea-level rise demands more than a mere legal approach. My Delegation believes an integrated ethical approach will not only highlight the real-life consequences of rising sea levels as well as of the armed conflicts – natural resources nexus but also provide the international community with guidance on how to develop an appropriate legal response.

In the case of sea-level rise, it is clear that discussions on marine and coastal ecosystems must take into account the men and women who rely on them since the human and the natural environment flourish or deteriorate together. For example, the depletion of fishing reserves due to changes in sea level have a detrimental economic and social impact on small fishing communities.

This underscores the call of Pope Francis for an “integral ecology”, one which clearly respects the human and social dimensions of nature. An ethical approach to the challenges posed by sea-level rise and the armed conflicts – natural resources nexus must also respect the rights and needs not only of the present generation but also of future generations, requiring nothing less than intergenerational solidarity.

Thank you, Mr. Chair.
1. Pope Francis, Encyclical Letter Laudato si’, 57.

2. United Nations Environment Programme, From Conflict to Peacebuilding: The Role of Natural Resources and the Environment, p. 8.

Copyright © 2019 Permanent Observer Mission of the Holy See to the United Nations, All rights reserved.

 

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