This article is authored by Priyal Agarwal and Payal Nayak, fifth year students pursuing B.A., LL.B. (Hons.) at Amity Law School Delhi, GGSIPU.
INTRODUCTION On May 4th 2020, Defence Minister of Taiwan, Yen Te-fa confirmed to the world that China is gearing up to establish an Air Defence Identification Zone (ADIZ) in the debated region of the South China Sea (SCS). SCS has been a bone of contention for several decades amongst Brunei, China, Vietnam, Taiwan, Indonesia, Malaysia and the Philippines. Strategically it is of paramount significance to the surrounding countries, as it accounts for about $5.3 trillion in international trade and commerce. Moreover, as reported by the U.S. Energy Information Agency, it holds about 190 trillion cubic feet of natural gas and 11 billion barrels of oil reserves along the margins of the sea. China keeping its pace with time has already set up its first ADIZ on the East China Sea in November 2013. Inadvertently or not, the area overlaps with Japanese, South Korean and Taiwanese ADIZ while adding to the rising tensions over the disputed Senkaku Island. Recently, Beijing’s Defence representative expressed that the nation is planning to set up another ADIZ over SCS, affirming that it is each sovereign state’s right and does not call for other nation’s interference. TRACING ADIZ IN PUBLIC INTERNATIONAL LAW The US was the first country ever to implement ADIZ jointly with Canada in 1950 amidst the cold-war with the Soviet Union. After which several Asian countries like Japan, South Korea, India, Taiwan, Philippines, etc followed its lead and maintained exclusive air sovereignty adjacent to their territories. The 1994 Chicago Convention on Civil Aviation broadly defines ADIZ as a specially designated airspace beyond the country’s sovereign territory with special identification and reporting procedure in the interest of national security. This exclusive sovereignty of a state extends up to the territorial sea limits of 12 nautical miles measured from the baseline of the coastal state. As part of the high seas freedom as enshrined in Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS) the foreign aircrafts have the right to conduct overflight and navigation operations but they are required to identify themselves before entering the zone to avoid any interception or interrogation. Apart from the definition, international law does not provide any guidelines for its implementation or operations. Although, countries have been using it as a mechanism of self-defence deriving its source from Article 51 of the UN Charter. China’s enforcement of ADIZ over ECS requiring aircrafts solely passing through the zone to identify themselves irrespective of its intentions to enter the national airspace shows that it views ADIZ as an extension of territorial sovereignty. Within the SCS, Philippines Flight Information Regions (FIR) controls a large network of air traffic services, providing for flight information and alerting services internationally. FIR is responsible to ensure seamless flow of air traffic whereas the scope of ADIZ is wider and can even restrict the entry of aircrafts in the interest of national security. An FIR can even extend to high seas but must comply with the International Civil Aviation Organization guidelines. The forceful attempt by Beijing to establish an ADIZ will unequivocally converge with the neighbouring states FIR resulting in miscommunications and tragedies overseas. For instance, in 2001 an aggressive act of force was seen between US intelligence aircraft and a Chinese fighter plane over the Hainan Island of SCS resulting in the death of a Chinese pilot. HAGUE ARBITRATION IN LIGHT OF CHINA’S RECLAMATION ACTIVITIES China has claimed that its reclamation activity falls within its nine-dash line policy covering over 90% of the SCS. Satellite images released by IHS Jane’s Defence Weekly evidences that it has completed constructing runaways on Woody Island in the Paracel archipelago and Fiery Cross Reef in the Spratly Islands. Currently, China is in the process of building airstrips in the Subi Reef and Mischief Reef, forming part of the Spratly Island. These runaways are reportedly long enough to host fighter aircraft and could potentially increase its surveillance over the area while denying access to the others. The Hague Ruling of 2016 however, debunks China’s historical claim by holding that its land reclamation activity encroaches upon the Exclusive Economic Zone (EEZ) of the Philippines. EEZ is an area beyond and adjacent to territorial sea extending to 200 nautical miles measured from the baseline. The court ruled that the Mischief Reef and Subi Reef were not naturally formed island as they were areas of land below water at high tide and according were not entitled to the territorial sea, EEZ or continental shelf. In reference to Fiery Cross Reef, the court declared it as a “rock” which cannot sustain human habitation or economic life of their own having no EEZ or continental shelf, pursuant to Article 121(3) of UNCLOS. China has adopted a dismissive attitude towards the arbitration order but from an international standpoint, its constructions do not hold any legal grounding. FREEDOM OF NAVIGATION AND OVERFLIGHT OPERATIONS Under the aegis of Article 87 of UNCLOS, US has been actively conducting freedom of navigation and overflight operations over SCS. In 2019 alone, 9 such operations were reported by the US Pacific Fleet. China has blasted US patrols viewing it as an offense to its sovereignty and a threat to international peace and order. The US defending its action stated that, “it upholds freedom of navigation as a principle” and bespeak of its “commitment to uphold the rights, freedoms, and lawful uses of the sea and airspace guaranteed to all nations”. These operations conducted by the US to challenge the unlawful and excessive claims to maritime jurisdictions of China would be hindered by the alleged establishment of ADIZ posing a serious threat to the law of the sea. China’s actions do not match its commitments undertaken in the bilateral agreement with the US government. In late September 2015, The US Department of Defence and Ministry of National Defence of China concluded Annex III to the Memorandum of Understanding On the Rules of Behavior for the Safety of Air and Maritime Encounters (MOU). The rules categorically provide that all military aircraft encounters should ensure navigation safety through active communication to prevent any mishaps. But the enforcement of ADIZ recognizing use of force as a mechanism of self-defence, might weaken the significance of MOU, since it is not a legally binding instrument. In this year’s virtual ASEAN summit, pioneers from Southeast Asian nations through a strong-worded statement cautioned China over its ambitious ADIZ plan, underlining on “the importance of freedom of overflight and navigation”. WHAT THE FUTURE HOLDS US Secretary of State, Mike Pompeo declared China’s claims on SCS as “completely unlawful” and further stated that "The world will not allow Beijing to treat the South China Sea as its maritime empire". Presently, when the whole world is combating with the deadly Covid-19 pandemic, China has been ruthlessly expanding its horizon over the SCS. By establishing the illegal ADIZ it is indirectly challenging the authority of the UNCLOS itself. China’s zero-sum game policy over SCS is adversely affecting the south-east Asian countries embroiled in this conflict. Its action is fuelled by personal greed to obtain power and supremacy over the military surveillance. China’s official announcement on ADIZ over the disputed territory in the immediate future will ruffle some feathers among its neighbouring states and hamper regional peace. The means to unravel the dispute is through the peaceful settlement mechanism as listed under Article 33 of the UN Charter or by means of conciliation procedure as mandated under Annexure 5 of UNCLOS. The informal nature of conciliation might open doors for an objective appraisal of issues involved. Moreover, a need for harmony to reconcile the freedom of overflight requirement under Article 87 of UNCLOS and the right to establish ADIZ over high seas is required under the Chicago Convention as well as in the Customary International Law. As a last resort, a collective call of action to halt China’s reclamation activities by the UN might calm the turbulent waters.
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This article is authored by Abhijeet Shrivastava, a third-year student pursuing B.A., LL.B. (Hons.) at Jindal Global Law School.
Hans Kelsen was a famous Austrian positivist legal theorist who espoused an influential “pure theory” of law, to explain what is authorized as law and how. Kelsen envisaged the law as an objective scheme of interpretation with a hierarchy of norms. He argued that a law/norm ABC is authoritative since it derives its authority from a higher norm PQR. As to why norm PQR is authoritative, he would respond that there is another even higher norm XYZ from which PQR derives authority. This would continue ad infinitum until one reaches the highest norm or the most basic norm, which he called the “Grundnorm”. The “basic” norm, in his view, is one that does not require vindication from another ‘source’ as it is the very foundation of a legal system. In what follows, it will become clear this idea is palatable for municipal legal systems. However, Kelsen had gone on further to attempt to adapt his idea of a Grundnorm to international law. Exploring the different forms of sources of international law and explaining the reasons for their authority, this post argues that Kelsen’s idea of a Grundnorm strongly fails to account for the peculiarities of international law. The Grundnorm Explained To illustrate, a statute enacted by the Pennsylvania State General Assembly would carry legal authority since this legislature is authorized by the Pennsylvania Constitution to make such laws. One step further, the Pennsylvania Constitution would carry such authority given that it derives its own legal force from the US Constitution. One might then think that the US Constitution is the Grundnorm since it is treated as an inviolable and supreme document in the US legal system. This view, however, would be incorrect. Instead, the treatment of the Constitution as inviolable and supreme, i.e., presupposition of the validity of the Constitution and its authority is the Grundnorm, as Kelsen would posit. Thus, the Grundnorm is not strictly speaking a legal norm, but rather, a “meta-legal” norm that validates the legal system. Without the above presupposition, anything that ultimately derives force from the US Constitution has no legal authority at all. In the US this presupposition exists since the Constitution symbolizes the birth of the US as an independent sovereign State. However, such reasons may vary in different legal systems depending on their historical contexts. In a way, the Grundnorm is the norm that authorizes the historically first legislator. Shortcomings When Transposed to International Law While considering the international legal system, the issue that emerges is the lack of an identifiable predominant legislator in international law. Hence, the imagination of a historically first legislator would be misguided here. Contrarily, states can enter into agreements, treaties, conventions, their protocols, and so forth, and thereafter become governed by the rights and obligations contained within such instruments. This system of treaty-based relations is stable owing to the general principle of international law called pacta sunt servanda (now codified under Article 26 of the Vienna Convention on Law of Treaties, (1969). In essence, pacta sunt servanda means that all treaties in force that a State “consented” to must be complied with in good faith. Accordingly, pacta sunt servanda is the presupposition that treaties entered into shall have authoritative force. Given that all treaties have authoritative value owing to this presupposition, Kelsen argued that pacta sunt servanda is the Grundnorm of international law as a legal system, since it validates all treaties. Therefore, to Kelsen, pacta sunt servanda is the most basic norm of international law. To some extent, this contention is acceptable. However, if pacta sunt servanda is indeed the Grundnorm of international law, then it must validate international law in all its forms and sources. We know that customary international law is also a valid source of law. A norm of customary character is formed when there is “consistent” state practice and opinio juris. This means that when enough states behave in a certain way with the belief or recognition that a legal obligation is involved in that very behavior, a norm of customary character can potentially crystallize. Once crystallized, this norm would make all states in the international order bound to act or not to act in a certain way. Thus, a norm of customary character, in order to have legal authority, would not require states to actively consent to be governed by it for it to be binding on them. For instance, it is immaterial if a state has not ratified international treaties prohibiting the deployment of chemical weapons in warfare, because this prohibition can concurrently be located in customary international law. Evidently, it is not pacta sunt servanda that gives authority to norms of a customary character. Rather, it is the practice of states (under certain conditions) that can ipso facto lead to the creation of rights and obligations. Since customary international law cannot be traced back to pacta sunt servanda as its final source of authority, the latter cannot be the Grundnorm of international law. Kelsen’s proponents may defend him by suggesting that the “persistent objector” rule preserves his emphasis on state consent. We see this in the Fisheries case (1951), where the World Court noted that Norway had persistently objected to an alleged customary “ten-mile” rule in demarcating fishing zones. Holding that such a rule did not exist, the court additionally held that even if it existed, it would not apply to the Norwegian coast. As such, if a state does not object during a customary norm’s formation, its consent is tacitly assumed, making the state bound to it by its own silence (acquiescence). While one could argue that such tacit consent is distinct from a positive (explicit) agreement and that pacta sunt servanda covers only the latter, let us consider the opposite arguendo. There are at least two problems with this defense. First, even if a state objects to a norm persistently during its formation, it will be bound to respect it if it gains recognition as a jus cogens or “peremptory” norm (from which no derogation is allowed). Thus, a state cannot evade the customary norm on the prohibition of torture, even if it had persistently objected to it during its formation. Nor should it be allowed to make this evasion, since states would otherwise have legal impunity against a human rights violation so alarming that it concerns the international community as a whole. Second, if new states are formed after such a customary norm crystallizes, their consent to be bound or not to such a norm would be immaterial, as only old states would have had the occasion to object to such a norm during its formation. For instance, since Slovakia became an independent sovereign state in 1993, its objection to be bound by any customary norm that had crystallized before 1993 will be inconsequential. In both the first and the second situation, a state is bound by a customary norm despite lacking consent to that effect. Consequently, these legal obligations (and rights) would not be authorized by pacta sunt servanda. Concluding Thoughts Some authors maintain that Kelsen eventually rejected the proposition that pacta sunt servanda is the “only” basic norm of international law, and instead relegated it to the “most important” norm. However, the moment he makes this concession, he makes an irreversible departure from his Grundnorm postulate, since there is no longer a “highest” norm that validates all laws. Seemingly, he later revised his view to believing that the Grundnorm in international law is that states must behave as they customarily have behaved. As the most basic norm, this too is flawed insofar as it fails to account for potential changes in customary international law norms from position X to contrary position Y on the same subject-matter. If states behaved only as they customarily behaved in the past, the formation of contrary authoritative customary norms would be impossible. However, the World Court has acknowledged this possibility of change in its Nuclear Advisory opinion (1996), where it couldn’t identify a universal norm prohibiting the possession of nuclear weapons owing to inconsistencies between the past and the emerging state practice. Thus, as Kelsen envisioned it, his Grundnorm postulate fails to explain why the sources of international law are authoritative. This is very likely since the Grundnorm in its inception was meant to be a conceptualization of municipal legal systems. The uniqueness of the forms of the sources of international law necessitates a conceptualization specifically tailored to them. Regrettably, there is little scholarly dialogue, let alone agreement on this to date. In this vein, Jean d'Aspremont explains that once international law began to be recognized as equal to other legal disciplines in the 20th century, legal scholars did not deem it necessary to unravel its theoretical foundations. Arguably, their unfortunate omission to build such firm theoretical foundations is part of why many scholars today argue that international law is not law at all. As students, scholars, and practitioners, the onus now falls on us to remedy this lacuna. And we must remain thankful to Kelsen for contributing to this vital conversation that we must continue. This article has been authored by Siddharth Jasrotia, III-year student at the Maharashtra National Law University, Mumbai, pursuing the B.A., LL.B. (Hons.) course.
Introduction Even with the increased engagement of the United Nations High Commissioner for Refugees in the implementation process of the United Nations Framework Convention on Climate Change, the present international legal framework is of no avail to the persons who are rendered stateless as a result of climate induced displacements. By contrasting the legal obligations imposed on States regarding alien nonhuman animals (“animals”) with that of foreign human animals (“humans”), this Articles argues why the safeguards necessary for the protection of climate migrants should come from the international environmental law as opposed to the international refugee law. Evolving Contours of Animal Rights Jurisprudence regarding the legal rights of animals have seen a drastic change over the past few years. The earlier Roman Law doctrine, which regarded animals as ferae naturae, justifying their capturing in the international arena on the premise that they are creatures of the wild and whomsoever possess them shall acquire a title to them, was gradually replaced with the doctrine of ‘common heritage’, which purports that animals are a heritage that humans hold as a trust for the future generations. This understanding has paved the way for the concept of animal rights, under which animals are perceived as sentient beings. Even though the legal status of animals remains a grey zone between either legal properties or legal personhood, a global trend tilting towards granting legal personhood to animals can be visualised. International instruments such as the Convention on the Conservation of European Wildlife and Natural Habitats, the Convention on Biological Diversity and the Convention on the Conservation of Migratory Species of Wild Animals obligate States to protect and enhance the capacity of animals to resist, recover from and adapt to climate change. Being cautious of the fact that climate change has led to trans-border migration of animals, the international community has now adopted additional safeguards for the protection of such animals. States are obligated to protect not only their ‘native species’ but also those ‘alien species’ which have now entered their territory as a result of climate-induced displacement or climate-induced range shifts. Where on the one hand, developments in national and international legal framework can be seen in regard to this changing trend of perceiving ‘what is alien?’ and ‘what is native?’ so as to ensure survival and protection of these animal species, an exact opposite trend can be viewed in the context of humans being displaced as a result of climate change. Statelessness vis-a-vis Climate Induced Displacement Under the current international legal framework, displaced persons do not constitute a juridical category, and hence, the terms such as ‘climate refugees’ or ‘climate migrants’ are merely descriptive terms and are not a status that confers an obligation on States. The 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees only recognize those persons as refugees who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” It can be analyzed from a bare perusal of this definition that persons displaced as a result of environmental factors do not fall within this definition of refugee, and hence, cannot claim protection guaranteed under the international refugee law. Human rights activists who argue for providing protection to such people under international law generally adopt El-Hinnawi’s definition of environmental refugees. He defined environmental refugees as, “those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life.” An attempt was made by Finland and Sweden to provide legal protection to environmentally displaced persons, but the same was withdrawn in response to a refugee crisis. Similarly, the Nansen Initiative by Switzerland and Norway, and the Kampala Convention adopted by Africa have shown certain strides in the direction of providing protection to environmentally displaced persons. However these instruments have adopted a very narrow interpretation of climate displacement by not taking associated results of climate change like a rise in seawater et al. into consideration. Even though the term ‘climate displacement’ has caught global attention, currently, there is no legal framework in place which addresses this issue. The 2020 issue of Forced Migration Review provides a detailed and comprehensive analysis of how climate-induced migration has rendered thousands of people stateless in Mauritia, Western Sahara, Kenya, Ethiopia, Sundarbans Delta, Mongolia, Somalia et al. Statelessness or Worldlessness, as Hannah Arendt calls it, is a staunch critique of the universal nature of Human Rights as envisaged under the international law. Stateless persons are deprived of the ‘right to have rights’. Where in theory, human rights activists argue that an individual possesses rights by virtue of her being a member of the human community, this practical problem of statelessness shows how the absence of State protection leads to the waiver of these rights. In the context of trans-border environmental displacement where the native State of displaced persons is unable to provide them protection and the current State is unwilling to provide them protection, the gravity of the problem is much higher as these persons cannot claim refugee in any country owing to the voids in the present international legal framework. Natural / human triggered environmental disruptions that happened in the year 2020 itself, such as Covid-19, cyclones in the US, Caribbean and Fiji, flash floods in Afghanistan, Thailand, UK, Yemen and India, earthquakes in Papa New Guinea, Indonesia and Philippines et al. vividly exposed the dysfunctionality of political structures created by humans. It is in the face of events like these that the bare animal existence of humans holds high value, where irrespective of one’s race, religion or political opinion, everybody is affected alike. Hence, it is argued that where international law provides ‘unconditional’ protection to animals affected from climate change (probably because they do not identify with a particular race, religion, nationality, membership of a particular social group or political opinion), the inherent animalism of human beings must be recognized and respected in light of these changing climatic conditions, and similar protection must be advanced to humans. Therefore, in order to tackle the issue of statelessness in the context of climate change, an anthropocentric approach to environmental displacement is the need of the hour. Conclusion Instead of advancing the protection under the international refugee law from political refugees to climate migrants, it would be more beneficial if this protection is sourced under the international environmental law instruments such as the United Nations Framework Convention on Climate Change because of it being specific to changing climatic conditions, and under the human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights because the rights protected under these instruments are of universal nature, and will attract less repulsion from States. 10/2/2020 Indo-China Border Tussle and its Impact on the Environment of the Eco-sensitive Area: China's Recent Actions and its other Prospectives under the Purview of International LawRead NowThis article has been authored by Manav M. Bhatt, II-year student at Hidayatullah National Law University, Raipur. Introduction Apart from the deadly clash that erupted between the Indian and Chinese personals on 15th June in the Galwan and China’s consequent claims of sovereignty over the entire valley, satellite images of the region had shown the increased presence of PLA’s troops, which numbered in hundreds, along with heavy construction equipment and tents for soldiers. Images show that the flow of the Galwan river was being blocked. The presence of dozers and JCBs concretize the argument that they are being used to channelize it, thus, altering the river’s ecosystem. In the absence of any statement regarding the same and the refusal of the Chinese foreign ministry to speak on it, this article analyses China’s actions of damaging the environment under the ambit of International law, based on various arguments that have been evidenced by visible facts. Classification as International Armed Conflict and applicability of International Humanitarian Law: An international armed conflict does not cease to exist[i] with a ceasefire, a peace treaty or armistice; rather, these are proof of the ongoing hostilities. Thus, having considered the history of the Indo-China border dispute and hostilities and the recent Galwan clash, the objective and factual criteria (hostile military actions by one state against the other) for the application of International Humanitarian Law (IHL) stands established. [also see Common Article 2, Geneva Convention; Additional Protocol 1] Damage caused to the environment of Galwan river valley: The river Galwan, an upstream tributary of Indus, originates from the disputed area of Aksai Chin, which currently falls under the Chinese control, and flows into the Indian side of the LAC to meet the river Shyok. A viable argument is that the course of the Galwan river was being changed as well as the width was being reduced, to accommodate larger Chinese troops, thus, laying claim over the territory to the sides of the river. Further, the soil for the purpose was being dug out from the mountainsides, and waterlogging had been observed in the images of the areas claimed. These actions may fall under the ambit of ‘transboundary impact’ defined by the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1992 as “any significant adverse effect on the environment(including the effect on soil, water, landscape, etc.) resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another Party.” However, such an impact is to be prevented, controlled and reduced by parties who also need to employ appropriate measures for the same. China is not a party to the above convention, however, this principle to prevent transboundary harm has also been embedded in Article 16 of the Berlin rules on water resources, which enshrines the principle of “sic utere tuo ut alienum non laedas” (Do not use your property so as to injure the property of another) which forms a part of Customary International Law. Apart from these, other provisions of International Environmental Law continue to apply even during armed conflicts, if the provisions of the same are not inconsistent with the laws of war. [see Guidelines on the Protection of the Environment in Times of Armed Conflict, see advisory opinion in the Nuclear Weapons case, Principle 24 of the Rio Declaration.]. While employing means of warfare, due regard is to be given to the protection and preservation of the natural environment, and thus, incidental damage to the environment in the case of military operations needs to be avoided [ see Principles 5 and 20, World Charter for Nature; Customary International Law, ICRC]. At the 26th International Conference of the Red Cross and Red Crescent (1995), parties to the conflicts were also requested to “take all feasible precautions to avoid, in their military operations, all acts liable to destroy or damage water sources”. [see pg 150.] Further, the principle, laid down in the Trail Smelter case (United States Vs. Canada), although not laid in a belligerent set up, was also reiterated in the Stockholm Declaration of 1972 (Principle 21), Rio Declaration of 1992 (Principle 2), the advisory opinion of the ICJ in Legality of the Threat or Use of Nuclear Weapons first (Para 27) and the Case concerning Pulp Mills on the River Uruguay (Para 193). It states that States have the responsibility to ensure that activities carried out within their control don’t cause damage (to the environment) to the areas beyond their jurisdiction or to the territories of other states. The same principle with regards to damage to the environment has also been incorporated in Principle 3 of the Convention on Biodiversity, 1992. Thus, this makes China accountable for the damage caused by the People’s Liberation Army in the Galwan river valley, which forms a part of the disputed territory between both the nations. Was the damage justified? Further, Rule 43 of Customary International law, according to ICRC, UNGA Resolutions 47/37 Protection of the environment in times of armed conflict (1993) and the Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict all lay down that, unless required by imperative military necessity, destruction of the natural environment is prohibited. In an armed conflict, the military necessity exists only when the measures aim to weaken the military capacity of the opposition. However, any part of the environment may be attacked only if it has a military objective i.e., an object whose destruction or capture at a certain time grants military advantage. Thus, the principle of proportionality as applicable to the China’s act in the Galwan valley, broadly states that the damage to the natural environment must not be excessive than the military advantage anticipated from the same. Military advantage can be construed in a narrower sense i.e., the specific tactical objective of a particular action or in a cumulative one, i.e., how the action may affect the overall strategic goals of the party taking action.[ii] The recent Chinese developments in the valley if as assumed to be a step to claim the entire Galwan territory as well as stop infrastructure construction by India towards the LAC, the same can be said to be the overall strategic goal, while the anticipated tactical advantage perceived by the act was the availability of the larger landmass to employ more troops. However, these acts towards the perceived military advantage were against the 1993 and 1996 Border Agreements(Article III), which states that both sides shall limit their respective military forces near the LAC to minimum levels. Apart from the various violations of International law and bilateral treaties, the object of destroying the environment, i.e., to employ larger troops, itself violates the said provisions of the bilateral agreement, and no military advantage from such violation could have been justified; thus, not passing the test of proportionality. Could a dam or barrier have been built on the river and the water be used as a weapon? What is evident from the satellite images is the presence of a blocking structure built 650 m into their side of the LAC. However, its nature was not clear owing to the fact that it blocked only one-third of the valley, and no signs of divert or a reservoir were evident on the face of it. The act had initially resulted in the Indian side of the river experiencing dryness, which after the demolition of the illegal structure, was restored back to its original torrential flow. As argued, the barrier built on the river, once complete, would have allowed the PLA to hold and release water at will, which could have been potential threats to the bridges on the Darbuk-Shyok-Daulat Beg Oldie road. This attempt by the Chinese to block the river flow could be inferred as a step towards building a dam and using the water as a weapon. Such weaponization would have qualified as an environmental modification technique, i.e., a technique that changes the dynamics, structure and composition of the earth (inclusive of all its components-biosphere, lithosphere, hydrosphere and atmosphere, or of outer space), by deliberately manipulating natural processes. Further, use of such technique for the purpose of destructing, damaging or injuring other State party, which may result in widespread, long-lasting or severe effects, has been explicitly prohibited by the UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques (ENMOD), 1976. [see article 1 and 2, ENMOD] The Convention further defines the parameters of ‘widespread’ as spreading over an area of many hundred square kilometres, ‘long-lasting’ as extending for a period of months, as long as a season, and ‘severe’ as covering harms to human life and also natural and economic resources or other assets. Thus, in the present case, having considered that the barrier had been built 650m into the land occupied by the Chinese army and that the river further flowed into the Indian side, finally merging into the river Shyok which itself flows further, the damage predicted by a potential flash flood could have been said to fall under the ambit of ‘widespread’ effects. Also, the infrastructure built as well as various other resources on the Indian side could have been harmed, thus, falling under ‘severe’ damage. Finally, such actions could also have a long-term effect on the ecology of the eco-sensitive area, owing to its glaciers. Considering Prospective Damages to the Environment: While the threshold of damage under the ENMOD is quite low i.e., damage resulting in any one of the parameters is considered a violation, the triple cumulative standard (widespread, long-lasting and severe effects) of damage to the natural environment caused by employing methods and techniques of warfare has been prohibited by the preamble of the CCW (Convention on Certain Conventional Weapons and the Inhumane Weapons Convention), Article 35(3) and Article 55(1) of the Additional Protocol I to the 1949 Geneva Conventions. Also, such acts may constitute a war crime if the damage done is excessive than the direct military advantage anticipated from the same. [see Article 8(2)(b)(iv), Rome Statute] Other than the Galwan, a number of rivers flow from China into India, including the Brahmaputra in the North-east and potentials violations and weaponization of water may also cause these triple cumulative standards of damage. Apart from damming and weaponizing of water, China can even pollute these rivers, rendering them unfit for use (e.g., Blackening of the Siang river in 2017). It also has the advantage of access to hydrological data that is needed by India to control the floods and fluctuations in the flow of the rivers in its territories. Despite the two pacts having been signed on the sharing of hydrological data of the Sutlej and Brahmaputra, the same was withheld by China during the 73-day Doklam stand-off resulting in Assam and Uttar Pradesh being flooded. Thus, these actions remain to be violative of the provisions of International law, as explained. There is no mutually-agreed dispute settlement mechanism on water-sharing between the two nations. Further, China’s defiance to concur with International dispute settlements leaves India with only few diplomatic solutions, such as the recent trade sanctions. Conclusion While half the world’s population and 20% of its economy depend on the Himalayan rivers, access to their headwaters being a common bone of contention between the two nations, these rivers have already been threatened with climate change. Besides, the ecological problems haven’t been paid heed to, and the Indo-china border dispute has resulted in grave environmental damage over the years. While the massive military presence of all the three countries (India, Pakistan and China) in the eco-sensitive Himalayan region is itself said to have many environmental problems. China’s aggressive strategy and defiance to the provisions of International law need to be condemned, and the protection of the environment amidst the tussle needs to be ensured. Endnotes: [i] Pg 58, Nils Melzer, INTERNATIONAL HUMANITARIAN LAW A COMPREHENSIVE INTRODUCTION, ICRC, https://shop.icrc.org/international-humanitarian-law-a-comprehensive-introduction-2891.html?___store=default&_ga=2.42635109.1923899765.1592826791-981944441.1591081829 [ii] Pg 141, Bernard L. Brown ,The Proportionality Principle in the Humanitarian Law of Warfare: Recent Efforts at Codification, Cornell International Journal , Volume 10, Issue 1, December, 1976,https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1027&context=cilj |
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