The evolution of the notion of usufruct in IHL

The exploitation of natural resources during an armed conflict by an adverse party is only regulated in the law applicable to situations of belligerent occupation. In accordance with a long-standing rule of customary IHL, the Occupying Power must administer the immovable public property located in the occupied territory under the rules of usufruct.Footnote ¹⁰ While categorizing natural resources under property, whether moveable or immovable, may sound strange to twenty-first-century environmentalists,Footnote ¹¹ it seems that this was not the case in the nineteenth century. For example, Article 52 of the 1880 Oxford Manual stipulated that the occupant can only act as the provisional administrator of real property and clearly mentioned forests as an example of such real property.Footnote ¹² Due to the status of the Occupying Power as a provisional administrator, the Manual provided that the occupant “must safeguard the capital of these properties and see to their maintenance”.Footnote ¹³ This formulation was, to a large extent, a derivation from the formulation of such a right in the Lieber Code of 1863, as it permitted “sequesters for its own benefit or of that of its government all the revenues of real property belonging to the hostile government or nation” without emphasizing their perseverance.Footnote ¹⁴ More importantly, the above-mentioned provision of the Oxford Manual, which was adopted based on, among others, the Brussels Declaration of 1874,Footnote ¹⁵ did not explicitly refer to the right of the Occupying Power as usufructuary.Footnote ¹⁶

Conversely, Article 7 of the Brussels Declaration, which was exactly repeated in Article 55 of the 1899 and 1907 Hague Regulations,Footnote ¹⁷ considered the Occupying Power both as administrator and usufructuary. Article 55 of the Hague Regulations provides:

While Article 55 in its literal form seems not to make any distinction between renewable and non-renewable natural resources, the travaux préparatoires of Article 7 of the Brussels Declaration demonstrate that such a distinction was clearly what the delegates intended. The first draft of Article 7 that was put into discussion, prepared by Russia, was formulated in a negative form by limiting the rights of the Occupying Power to the rights of administration and enjoyment. This draft also prohibited any act that would not be justified by the usufruct.Footnote ¹⁹ The first suggestion was to replace the phrase “to refrain from anything that would not be justified by the usufruct” with a phrase that would recognize the Occupying Power as “usufructuary”,Footnote ²⁰ on the one hand, and “administrator”, on the other.Footnote ²¹ More importantly, during the discussions, the representative of Austria-Hungary emphasized that there should be a distinction between exploiting agricultural areas, on one side, and the exploitation of forests, on the other.Footnote ²² From his perspective, the risk to agricultural areas was limited in time, while the harm that might be caused by the exploitation of forests would last for many years and would be difficult to recover from. In this way, he suggested either prohibiting the Occupying Power from exploiting the forests or, alternatively, limiting any profit from their exploitation to the purposes that were already prescribed by the rules and regulations of occupied territories.Footnote ²³ Other delegates were in favour of the latter proposal. The German delegation proposed to add that forests should be exploited in accordance with the rule of good and reasonable administration.Footnote ²⁴ Despite these suggestions, the delegates decided not to make any distinction between the exploitation of agricultural areas and other natural resources, because they believed that the Brussels Declaration's articles should be limited to general principles. Moreover, they agreed that the record of this discussion in the proceedings would suffice to convene their intention, and in any case, the obligation of Occupying Powers to follow the rules and regulations of the occupied territory was already reflected in other articles.Footnote ²⁵ This nevertheless demonstrates that apart from the good and reasonable administration of natural resources, the distinction between renewable and non-renewable resources was from the beginning part and parcel of the principles of administration and usufruct.

These considerations around the notion of usufruct have not only been followed in modern times but have also directed authorities to impose stricter regulations. For example, in 1947, the Nuremberg Tribunal in the Flick case described usufructuary as a privilege for occupants and held that “wherever the occupying power acts or holds itself out as owner of the public property owned by the occupied country, Article 55 [of the 1907 Hague Regulations] is violated”.Footnote ²⁶ State practice, gathered by the ICRC, demonstrates that while several military manuals have repeated the provisions of the Hague Regulations, others have added more details to the general rule not only to illustrate the meaning of usufruct but also to integrate the concept of sound and reasonable administration. For example, the manuals of Australia, Canada and New Zealand state that the public immovable property of the enemy may not be confiscated.Footnote ²⁷ Canada's law of armed conflict manual indicates that “the occupant becomes the administrator of the property and is able to use the property, but must not exercise its rights in such a wasteful or negligent way as will decrease its value”.Footnote ²⁸ The UK manual provides more detailed instructions on reasonable administration:

In light of these practices, in her first report to the ILC, Marja Lehto, the Special Rapporteur of the Commission on the issue of protection of the environment in relation to armed conflicts, states that while the concept of usufruct has been traditionally regarded as applicable to the exploitation of all kinds of natural resources, including non-renewable ones,Footnote ³⁰ such a right was never unlimited.Footnote ³¹ By referring to developments in related fields that have a bearing on the interpretation and implementation of the obligations of the Occupying Power in exploiting natural resources, such as the right to self-determination and permanent sovereignty over natural resources, the Special Rapporteur relies, inter alia, on the finding of the International Court of Justice (ICJ) in the Armed Activities on the Territory of the Congo caseFootnote ³² to conclude that an important limitation under IHL is that the Occupying Power is permitted to exploit the natural resources of the occupied territory for the benefit of the local population.Footnote ³³ With respect to developments in the law of occupation, she further submits that following Article 43 of the Hague Regulations, the Occupying Power is under the obligation to take care of the welfare of the occupied population and this “should be interpreted to entail environmental protection as a widely recognized public function of the modern State”.Footnote ³⁴ Moreover, with reference to the specific obligations of the Occupying Power, she states that the right of the occupant in relation to natural resources refers to “good housekeeping”, according to which the usufructuary “must not exceed what is necessary or usual” while exploiting natural resources.Footnote ³⁵ Having this in mind, she describes the modern equivalent of usufruct as including sustainable use of natural resources as “a prolongation of the concepts of resource protection, resource preservation and resource conservation, as well as those of wise use, rational use or optimum sustainable yield”.Footnote ³⁶ On this basis, without using the term “usufruct” in her proposed draft principle, she states:

In its commentary introducing the concept of “sustainable use of the environment” as a modern replacement of usufruct, the ILC emphasizes that the concept is nothing but the reflection of developments in international law, especially in the areas of human rights and environmental law.Footnote ³⁸ On this basis, the Commission also stresses the precautionary principle in exploiting natural resources and states that the notion of sustainable use of natural resources “entails that the Occupying Power shall exercise caution in the exploitation of non-renewable resources, not exceeding preoccupation levels of production, and exploit renewable resources in a way that ensures their long-term use and capacity for regeneration”.Footnote ³⁹ In this way, the ILC revives the distinction between renewable and non-renewable natural resources that, as reflected above, was also a concern of the negotiating States when writing the international law on the exploitation of natural resources in occupied territories.

Not only did the inclusion of the notion of “sustainable use” as part of the obligations of the Occupying Power by the ILC receive no negative response, but also, States generally supported such an inclusion.Footnote ⁴⁰ For example, for the Netherlands, a modern-day interpretation of usufruct would include the “sustainable use” of resources,Footnote ⁴¹ and for Jamaica, the draft principle was an effort to “bring the rules of usufruct into line with modern realities and developments in international environmental law”.Footnote ⁴² Interestingly, the United States, while not opposing the inclusion, suggested replacing the word “shall” with “should”, as in its view, the draft principle did not reflect an existing obligation under international law.Footnote ⁴³ The Special Rapporteur rightly rejected this suggestion, arguing that “both the concept of usufruct and that of ‘sustainable use of natural resources’ are designed to prevent overexploitation”.Footnote ⁴⁴ She further added that “an evolutionary interpretation of a general term in light of subsequent legal developments does not turn an established customary rule into a recommendation”.Footnote ⁴⁵ The designation of the notion of “sustainable use” to prevent “overexploitation” of natural resources by an Occupying Power, which is one of the major threats to biodiversity,Footnote ⁴⁶ is a very important step in protecting the environment in situations of armed conflict. It also provides a more objective and contemporary understanding of the rule that exploitation of natural resources by an occupant which goes beyond the rules of usufruct – i.e., excessive consumption of resourcesFootnote ⁴⁷ – may amount to pillage.

Principle 16 of the ILC Draft Principles on the Environment restates the prohibition on the pillage of natural resources in both international armed conflicts (IACs) and non-international armed conflicts (NIACs)Footnote ⁴⁸ and emphasizes that it forms part of the broader context of illegal exploitation of natural resources that exists both during and after armed conflict.Footnote ⁴⁹ By referring to the relevant UN Security Council resolutions,Footnote ⁵⁰ the commentary adds that illegal exploitation of natural resources is a general notion that may also cover the activities of States or non-State entities.Footnote ⁵¹ But does this mean that from the ILC's perspective all exploitation of natural resources by NSAGs, apart from that which is justified by imperative military necessity,Footnote ⁵² should be considered illegal, since no corresponding provision to Article 55 of the Hague Regulations exists in the legal framework applicable to NIACs? From the ICRC's perspective, as much as the natural environment can be subjected to ownership, the prohibition on pillage applies to its appropriation or obtention when not justified by the exceptions provided in IHL.Footnote ⁵³ The ICJ, in the Armed Activities case, although addressing the issue in the context of an IAC, expresses that the unlawful exploitation of natural resources, including gold and diamonds, falls within the scope of the prohibition on pillage.Footnote ⁵⁴ But what if an NSAG does not appropriate, obtain or even benefit from the natural resources but rather uses them only for the benefit of the people living in the territories under its control? Moreover, does the nature of the natural resource in question – i.e., being renewable like plants or agricultural areas, or non-renewableFootnote ⁵⁵ like minerals and fossil fuels – make any difference to this discussion?

These questions and, in general, the exploitation of natural resources by NSAGs engaged in NIACs have not been addressed either in the ICRC Guidelines or the ILC Draft Principles. The ILC Special Rapporteur, without explicit reference to this issue, admits in her second report that “while there are certain developments clarifying the status and international obligations of organized armed groups, a number of questions remain”.Footnote ⁵⁶ The next section aims to discover how scholarly works have addressed these questions.

Do NSAGs have a right to exploit natural resources?

According to an estimation provided by the ICRC, as of July 2022, a total of at least 175 million people are likely to live in areas controlled by armed groups.Footnote ⁵⁷ In terms of territorial control, in 2022, the ICRC declared that seventy-seven armed groups fully and exclusively control territory and 262 armed groups contest and fluidly control territory. According to the ICRC data, a large number of these groups control territory for four years or more.Footnote ⁵⁸ In such a context, it is not surprising that scholars have warned that for regulating the exploitation of natural resources, focusing merely on States, when rebels and other non-State groups exercise day-to-day de facto administrative control over some territories, is “problematic and a stumbling block to meaningful regulatory initiatives”.Footnote ⁵⁹ For example, Okowa, in light of the practice of some States in recognizing the Libyan National Transitional Authority as the legitimate representative of the Libyan people with competence to exploit and enter into resource-related transactions at a time when the Gaddafi regime was still in power,Footnote ⁶⁰ argued that since “the exercise of public power by rebels has equally profound implications for the natural resources of the territory, … any regulatory regime ought to consider insurgent participation as a legitimate object for legal regulation”.Footnote ⁶¹ This is while most scholars have elaborated prohibitive legal rules applicable to the conduct of NSAGs in exploiting natural resources during armed conflict.Footnote ⁶²

These rules, however, cannot address all possible scenarios that will be raised with regard to the exploitation of natural resources by NSAGs. Most importantly, when the basic needs of civilian populations in the territory under the control of the NSAG are not met, it seems unreasonable to consider any exploitation of natural resources by the group to be illegal when such exploitation is only for the benefit of those populations. Perhaps this was the reason why the European Union, in a regulation adopted in 2013, permitted, inter alia, the sale, supply or transfer of key equipment and technology for the key sectors of oil and natural gas in territories controlled by the Syrian oppositions “[w]ith a view to helping the Syrian civilian population, in particular to meeting humanitarian concerns, restoring normal life, upholding basic services, reconstruction, and restoring normal economic activity or other civilian purposes”.Footnote ⁶³

This crucial aspect has led Dam-de Jong to reconsider the question of the exploitation of natural resources by NSAGs from another angle and to argue for a right for NSAGs to exploit natural resources. She submits that not all exploitation of natural resources by NSAGs should be considered illegal; rather, “an exception can be envisaged for small-scale natural resource exploitation that would enable armed groups to ensure the continuation of daily life in the territories that are under their control”.Footnote ⁶⁴ Her approach is based on offering the most protection possible to civilians affected by armed conflict. In this way, she argues:

Dam-de Jong defends her argument by relying on the ruling of the ICJ in the Namibia case, the so-called “Namibia principle”,Footnote ⁶⁶ stating that the welfare of the local population should be taken into consideration when deciding on questions of whether or not to recognize the effects of legal acts undertaken by an illegal regime.Footnote ⁶⁷ She acknowledges that it is not possible to infer a right to exploit natural resources by NSAGs from the general rules of permanent sovereignty over natural resources or the human right to self-determination.Footnote ⁶⁸ However, she contends that such a right may be derived from the underlying rationality of the right of peoples to freely dispose of their natural resources, which aims to ensure that peoples are the main beneficiary in the exploitation of those resources.Footnote ⁶⁹ She suggests that “the pragmatism that is inherent in international law regulating other situations in which an authority has effective control over territory without a valid legal title” would reinforce such a conclusion.Footnote ⁷⁰ In this way, she argues that the same rationality that could justify the inclusion of a regime of usufruct for the exploitation of natural resources by the Occupying Power can be extended to NSAGs since, like the case of occupation, it is “the continuation of daily life in the occupied territory” that overrides the need for a valid legal title.Footnote ⁷¹ She strengthens her argument by contending that her conclusion accords with the underpinning idea of Additional Protocol IIFootnote ⁷² and Article 3 common to the four Geneva Conventions, applicable to NIACs, which is to protect the civilian population, as well as the Martens Clause, which in her words “indicates that the well-being of the civilian population is paramount” and “should therefore always be taken into consideration in interpreting and applying the law”.Footnote ⁷³

In order to apply the concept of usufruct to NIACs, Dam-de Jong limits its application to territories falling under the effective control of an armed group. Relying on Article 43 of the 1907 Hague Regulations, she adds the criteria of being “highly organized” for NSAGs to be able to act within the territory under their control as a de facto authority.Footnote ⁷⁴ This would mean, for example, that NSAGs may be entitled to exploit not only water resources in the territories under their control but also non-renewable natural resources such as oil in order to maintain their civil administration and to meet the needs of the population under their control.

While such a conclusion has definitely been developed in response to the humanitarian needs of people living in territories under the control of NSAGs, we believe that granting a “complete” right of usufruct to NSAGs, analogous to that of the Occupying Power, in the absence of a legal provision, cannot be justified at all times even if the exploitation is for the benefit of people living under the control of an NSAG. In this regard, it should be noted, firstly, that the rights of the Occupying Power to exploit natural resources include both administration and use of those resources. While meeting the needs of civilians may justify the administration of, for example, existing water resources, this objective rarely justifies the entitlement of an NSAG to benefit from such exploitation. As discussed above, in the historical background of the adoption of Article 55 of the Hague regulations, the two notions of administration and usufruct, while interlinked, were considered as two different concepts, evidenced by the fact that the Oxford Manual contained no reference to the right of usufruct. Moreover, the inclusion of the rights of both administration and enjoyment for the NSAG may to some extent contravene the UN Security Council's statement that the warring parties to a conflict should not use natural resources to perpetuate the conflict.Footnote ⁷⁵

Secondly, the idea of analogous occupant rights for NSAGs is challengeable because this approach does not make any distinction between the exploitation of renewable and non-renewable resources. It is true that control over renewable resources, particularly when they are scarce, may not only contribute to escalations of conflictFootnote ⁷⁶ but may also lead to using such resources as a method of warfare.Footnote ⁷⁷ Despite these concerns, it is difficult and even impractical not to permit an NSAG to exploit renewable resources in order to meet the needs of people under its control, if those resources are administered in accordance with the ILC's proposal: “in a way that ensures their long-term use and capacity for regeneration”.Footnote ⁷⁸ It is difficult, however, to extend such a conclusion to the exploitation of non-renewable resources in the face of both the very nature of these kinds of resources, which exist in a fixed amount or cannot be regenerated on a scale compared to their consumption, and the pattern of abusive practices of NSAGs exploiting resources such as diamonds or oil.Footnote ⁷⁹

While we agree with Dam-de Jong that the protection of the civilian population should, from a de lege ferenda perspective, permit NSAGs to exploit natural resources, we believe that this authorization cannot be considered analogous to the privileges of the Occupying Power as being both administrator and usufructuary. In other words, we agree with the rationale and arguments of Dam-de Jong that an NSAG can exploit natural resources to meet the needs of civilians in the territory under its control, but we believe that such a permission should be minimal and strictly limited to its purpose in order to bar any possibility of abuse.Footnote ⁸⁰ Furthermore, we suggest that such a permission, contrary to the right of an Occupying Power, should be limited only to the administration of renewable resources.

This argument is a limited version of what is proposed by Dam-de Jong and consequently suffers from the same deficiencies, chief among them being the lack of a solid base or non-recognition in international law of a right for an NSAG to exploit natural resources in territories under its control. Dam-de Jong herself acknowledges that in the absence of consistent practice and opinio juris on the part of States on the subject, there appears to be no solid legal basis for a right of armed groups to exploit the natural resources under their control.Footnote ⁸¹ Nonetheless, as developed in the next section, we argue that limited exploitation of natural resources by NSAGs for the benefit of the local population can be justified as a matter of lex lata when a situation of humanitarian emergency exists.

Legality of the exploitation of natural resources in the event of disaster

In this section, we argue that in the event of a disaster, the exploitation of natural resources by NSAGs may be legally justified because the occurrence of a disaster may exclude the wrongfulness of the acts of NSAGs in international law. In this way, we contend that while, as discussed in the previous section, the legality of the exploitation of natural resources by NSAGs, outside the scope of imperative military necessity, remains controversial, the existence of a disaster and the obligation of NSAGs to provide relief may justify such exploitation subject to the conditions detailed below.

In 2016, the ILC launched its Draft Articles on the Protection of Persons in the Event of Disasters (ILC Draft Articles on Disasters).Footnote ⁸² These articles, in sum, are an attempt by the ILC to codify and develop the rules of international law in order to enhance the protection of persons suffering from disasters. Unfortunately, however, the protection discussed in the Draft Articles on Disasters does not explicitly address the situation of persons living in territories under the control of NSAGs, even though, following the adoption of the Draft Articles by the ILC, disasters such as the COVID-19 pandemic, the famine and cholera in Yemen, and recently the earthquake in Syria have had an even more severe effect on persons living under the de facto control of NSAGs.Footnote ⁸³ Perhaps this is the reason why some scholars, while referring to the various responses to COVID-19 by NSAGs, argue that these situations provide an opportunity to add an additional layer to the existing literature, “focusing on emergency governance by armed non-state actors”.Footnote ⁸⁴

Article 3(a) of the ILC Draft Articles on Disasters describes the term “disaster” as “a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society”. The commentary on this article, relying on the provisions of the Tampre Convention,Footnote ⁸⁵ emphasizes that the results mentioned in the article and the disruption of the functioning society are necessary elements in the definition of disaster, distinguishing it from other events that may affect a community.Footnote ⁸⁶

While, as pointed out by Siddiqi, “[t]here is empirical evidence of the increased frequency and intensity of disasters in the most conflict-affected states”,Footnote ⁸⁷ the ILC does not explicitly distinguish between disasters which might happen due to the occurrence of an armed conflict and other situations of disaster. However, the elements mentioned above for the characterization of disaster support the conclusion that an armed conflict, per se, cannot necessarily be considered a disaster.Footnote ⁸⁸ This conclusion may also be understood from the fact that as clearly mentioned in Article 18(2), the ILC Draft Articles on Disasters do not apply to the extent that the response to a disaster is governed by the rules of IHL. The commentary to Article 18(2) elaborates that the formulation of the article was intended, on the one hand, to emphasize the IHL rules as the lex specialis of situations of armed conflict, and, on the other, to highlight that the Draft Articles “would continue to apply ‘to the extent’ that legal issues raised by a disaster are not covered by the rules of international humanitarian law”.Footnote ⁸⁹ In this respect, it is important to note that the Draft Articles on Disasters also cover the human rights of persons affected by disasters.Footnote ⁹⁰ This would mean that in times of disaster that occur during an armed conflict, the Draft Articles are intended to be implemented as complementary to the rules of both IHL and international human rights law (IHRL).

The ILC Draft Articles on Disasters are only focused on the obligations of States and do not address NSAGs expressly, but they contain elements that may justify the application of some of their provisions to NSAGs. With general reference to the international law obligations of affected State, Article 10(1) indicates that an affected State has the duty to ensure the protection of persons and the provision of disaster relief assistance not only in its territory but also “in territory under its jurisdiction or control”. Interestingly, while the commentary on this article explicitly states that such a duty stems mainly from State's sovereignty, it immediately adds that a State does not necessarily have sovereignty “in territory under its jurisdiction or control”.Footnote ⁹¹ In the same vein, Article 3(b) defines an “affected State” as including “a State in whose territory, or in territory under whose jurisdiction or control, a disaster takes place” (emphasis added). The commentary further adds that “in exceptional cases, there may be two affected States: the State upon whose territory the disaster occurs and the State exercising jurisdiction or control over the same territory”.Footnote ⁹² The reference to “exceptional cases” indicates that the ILC did not restrict itself to a “sovereignty-based approach” and instead took an “effective approach”. In other words, the ILC, with the aim of enabling international law to enhance the level of protection of persons in the event of disasters, did not link the “duty to ensure the protection” to sovereignty; rather, it provides that in territories where the State has a kind of control, the mentioned duty to protect will be applicable.

While the notion of “sovereignty” is not discussable at all when it comes to NSAGs, the fact that they may exercise effective control over some territories is undeniable. According to a study carried out by the ICRC on the roles of NSAGs, “some non-State armed groups may develop State-like capacities and provide services for the population”.Footnote ⁹³ In such a context, if the criterion of the application of Article 10(1) is the exercise of control, it is difficult not to conclude that the general duty referred to in this draft article will also be applicable to those NSAGs which exercise de facto control over a territory.

It is beyond the scope of this paper to dig into controversies over the subject of the duty of NSAGs to protect persons living in territories under their control and who are affected by the hostilities – a duty that is widely discussed in the legal literatureFootnote ⁹⁴ – but for the sake of the present discussion it seems sufficient to remind ourselves that, in its 2011 IHL Challenges Report, the ICRC states that in cases where the NSAG by virtue of stable control over territory has the ability to act like a State, “human rights responsibilities may therefore be recognized de facto”.Footnote ⁹⁵ Needless to say, this does not exclude the general protections of IHL.Footnote ⁹⁶ In other words, like the Occupying State, in times of disaster, an NSAG is under dual obligations from both the IHL and IHRL perspectives to respond to those needs. More specifically, in times of disasters such as epidemics, pandemics or natural disasters, individuals living under the control of NSAGs are still entitled to minimum standards of treatment.

From the foregoing, one may conclude that although the rules of IHL do not encompass any clear reference to the “usufructuary function” of NSAGs with de facto control over a territory, this humanitarian consideration, which also mirrors the effective approach taken by the ILC in Draft Articles on Disasters, results in permitting NSAGs to administer and use properties including the natural resources available in the territory under their de facto control to respond to these needs in times of disaster.

Although stricter than the argument raised by Dam-de Jong, the above reasoning may face similar criticisms, as mentioned earlier – i.e., the lack of legality or non-recognition in international law of a right for an NSAG to act as usufructuary in territories under its control. In other words, this reasoning does not automatically preclude the wrongfulness of the act of exploitation of natural resources by an NSAG under the current international rules and regulations. Having this in mind, we assert that another criterion is needed to justify the legality of the exploitation of natural resources by an NSAG in response to a disaster: when the event of disaster amounts to a situation of force majeure or distress, or a state of necessity.

The ILC has codified these elements as circumstances recognized under customary international law to preclude the wrongfulness of acts or omissions by States and international organizations respectively.Footnote ⁹⁷ In its introductory commentary on Chapter V of its 2011 Draft Articles on the Responsibility of International Organizations, the ILC stipulates that there is “little reason for holding that circumstances precluding wrongfulness of the conduct of States could not be relevant also for international organizations”.Footnote ⁹⁸ The commentary on this chapter does not provide any other argument to justify this reading, but it is nonetheless clear that when international law imposes some obligations on international organizations and there is a possibility of raising their international responsibility due to non-compliance, there should also be some situations that preclude the wrongfulness of their actions. Yet, as stated by the ILC, “this does not imply that there should be a presumption that the conditions under which an organization may invoke a certain circumstance precluding wrongfulness are the same as those applicable to States”.Footnote ⁹⁹ On this basis, compared to those enshrined in its 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, the ILC drew stricter lines for international organizations to invoke these circumstances. For example, while the 2001 Draft Articles permit States to invoke a state of necessity to, inter alia, safeguard an essential interest of their own, Article 25 of the 2011 Draft Articles excludes safeguarding the essential interest of the international organization, stating that “as a matter of policy, necessity should not be invocable by international organizations as widely as by States”.Footnote ¹⁰⁰

The increasing level of violations of IHL by organized NSAGs with de facto control over territories in recent years has triggered a series of scholarly works on the concept of international responsibility of these entities.Footnote ¹⁰¹ The ILC Draft Principles on the Environment do not enter into this discussion, but Principle 9(3)(a) indicates that these draft principles are without prejudice to “the rules on the responsibility of non-state armed groups”. The commentary on this provision stipulates that this area is less settled in international law.Footnote ¹⁰² The ILC Special Rapporteur, in her second report, delved into this issue and, after reviewing the challenges in international law with regard to applying the secondary rules to NSAGs, stated that “the international responsibility of organized armed groups, while not a legally uncharted area, is a fragmented topic on which few solid conclusions can be drawn”.Footnote ¹⁰³ She referred to a 2014 International Law Association (ILA) report which concludes that “the mechanism of direct responsibility of [organized armed groups] seems to be, at the very best, a doctrine in statu nascendi”.Footnote ¹⁰⁴ A thorough discussion of the concerns raised by the ILA report and other scholars is beyond the scope of this paper, but we believe the concerns raised, such as complications in terms of the attribution of wrongful acts to NSAGs or of reparations, are without prejudice to the general principle that is reflected in all legal systems which stipulates that whenever the responsibility of an entity is raised, that entity is entitled to justify its conduct with reference to surrounding circumstances.Footnote ¹⁰⁵ This is the difference that exists between, in the words of the ILC, the “sword” and the “shield”.Footnote ¹⁰⁶ In other words, while there are still many uncertainties regarding how the rules of international responsibility apply to NSAGs as a “sword”, the idea that an NSAG, like any other entity or individual, has the right to use a “shield” to justify non-performance is not subject to controversy. As we discuss below, however, the size of the NSAG's “shield” is much smaller than the one that is designed for States in international law.

Although relying on the regime of international responsibility of States or international organizations is an appropriate technique for imagining the future law on international responsibility of NSAGs, as pointed out by Herman, “it should not be understood as a process of mechanically copying and pasting legal rules and principles”.Footnote ¹⁰⁷ This was exactly the approach of the ILC in creating the 2011 Draft Articles on the Responsibility of International Organizations. It is in line with this approach that we argue that even stricter lines should be drawn for circumstances which may preclude the wrongfulness of the conduct of NSAGs – that is, only when due to the occurrence of a disaster, the life and dignity of people living in territories under the control of an NSAG are in danger.

On this basis, we argue that in times of disaster, a very narrow reading of the above-mentioned circumstances may preclude the wrongfulness of exploitation of natural resources by NSAGs if: (1) the situation of disaster reaches the level of force majeure as indicated in Article 23 of the 2001 and 2011 Draft Articles, and this situation, either alone or in combination with other factors, is not due to the conduct of the NSAG invoking it or the NSAG has not assumed the risk of that situation occurring; or (2) the NSAG has no other reasonable way, in a situation of distress due to the occurrence of the disaster, of saving the lives of persons living or being present in the territory under its de facto control, providing that the situation of distress, either alone or in combination with other factors, is not due to the conduct of the NSAG invoking it or the exploitation is not likely to create a comparable or greater peril;Footnote ¹⁰⁸ or (3) the occurrence of the disaster reaches the level of a state of necessity as indicated in Article 25 of the 2001 and 2011 Draft Articles and the exploitation is the only means for the NSAG to safeguard against a great and imminent peril to an essential interest of the population living or being present in the territory under its de facto control, providing that the NSAG has not contributed to the situation of necessity.

Moreover, it is important to note that in accordance with Article 27(a) of the 2001 and 2011 Draft Articles, “a circumstance may preclude wrongfulness only insofar as it covers a particular situation. Beyond the reach of the circumstance, wrongfulness of the act is not affected.”Footnote ¹⁰⁹ Paddeu and Waibel have perfectly commented on this statement by adding that “determining the start and end dates of the situation of necessity can be a difficult and imprecise assessment, especially in situations of crises or emergencies. These do not need to overlap with the situation of necessity. This is a matter that requires objective determination.”Footnote ¹¹⁰ On this basis, they argue that “it is not necessary that the situation return to its pre-crisis normality before the state of necessity ends”.Footnote ¹¹¹ This generally accepted principle applies to all circumstances discussed above.Footnote ¹¹²

This leads us to conclude that the occurrence of a disaster only in very limited situations, as discussed above, may preclude the wrongfulness of exploitation of natural resources by an NSAG in a restricted time and scale. Of course, overexploitation or any violation of the provision contained in Principle 20 of the ILC Draft Principles on the Environment with respect to sustainable use may result in pillage or other wrongful acts under international law. Therefore, this criterion only works when the two other elements are also met: (1) the exploitation is solely for the purpose of meeting the needs of people living in territories under the effective control of the NSAG and who are affected by the disaster, and (2) the exploitation is not carried out in violation of the formula provided by the ILC for sustainable use of natural resources, which is that the NSAG shall exercise caution in the exploitation of non-renewable resources, not exceeding the levels of production that existed before the territory fell into the hands of the NSAG, and shall exploit renewable resources in a way that ensures their long-term use and capacity for regeneration.