top of page
  • Abhijeet Shrivastava

Indo-China Border Clash And International Environmental Law - A Response

This article is authored by Abhijeet Shrivastava, a third-year student pursuing B.A., LL.B. (Hons.) at Jindal Global Law School.


Background


In a recent blog-post on this forum, Manav M. Bhatt had made several compelling arguments concerning potential violations of international environmental law (“IEL”) and international humanitarian law (“IHL”) by China during the June 2020 Galwan Valley stand-off. The People’s Liberation Army (“PLA”) had made artificial alterations to the landscape of the valley (visible from satellite images) by widening tracks, moving earth, and making river crossings - possibly also impacting the course of the valley river in an attempt of damming (see here and here). The object of these activities was to create greater space to amass the PLA’s troops. Manav argues that the PLA’s activities indicate not only IHL violations, but also IEL treaty violations - as IEL continued to apply during the international armed conflict (“IAC”) that arose between India and China during this episode.


While I agree with most of Manav’s contentions, I opine that the co-applicability of IEL norms with IHL obligations during armed conflicts cannot be taken for granted. In fact, it continues to be a debate without clear answers. Thus, this piece seeks to revisit some of Manav’s claims concerning potential IEL norm breaches, specifically to highlight the nebulous position of international law in this regard.


The Question Of Continued Applicability


Manav argues that the World Court’s remarks in its Nuclear Advisory Opinion (1996) support the proposition that IEL continues to apply during IACs (except if there are inconsistencies, in which case, IHL would prevail as the lex specialis). This premise must be tread with caution as it is mostly speculative, given the judgment’s equivocality.


In terms of jus ad bellum, the court held that Multilateral Environmental Agreements (“MEA”) do not ipso facto cause a “total restraint” over states’ inherent right to self-defence. Nonetheless, it observed that “environmental considerations” must be accounted for in determining if measures of self-defence are “necessary” and “proportionate” in responding to an armed attack (¶30). In essence, while IEL cannot directly restrain a state from using force in self-defence, the existing limits on this right must be assessed keeping IEL in mind.


It reasoned identically for when an IAC arises, commenting that “important environmental factors” must be accounted for in implementing the “law applicable in armed conflict” (¶33) [emphasis added]. In reaching this conclusion, the court recognised the irreconcilably divergent views of states on whether MEAs apply outside peace-time (¶¶27-28). Consequently, these somewhat elusive remarks can be taken to mean that environmental factors are relevant in applying IHL, and not necessarily that IEL applies concurrently with IHL. This approach to IEL principles as an interpretative aid (wherever appropriate) in applying treaties unrelated to environmental protection has been confirmed by other tribunals (¶452).


Interestingly, the International Law Commission’s (“ILC”) Draft Articles on the effects of

armed conflicts on treaties (2011) suggests that no MEA can be suspended during armed conflicts [Annex(g.) to Draft Article 7]. However, the ILC too, in its commentary to this provision, caveats that there is presently no agreement between states on this question (¶55). Given this, the International Committee of the Red Cross’ view cited by Manav that MEAs “may” continue to apply during IACs must be understood as a possibility and not a guarantee.


Explicitly versus Silence


The reason that the question of continued applicability of MEAs arises is that states can generally invoke the ground of a “fundamental change of circumstances” from when the treaties were concluded (i.e., rebus sic stantibus) to suspend their operation during IACs. Similarly, “necessity” as a ground to preclude the wrongfulness of their actions can potentially be claimed during IACs. Thus, the only situation where it is clear and uncontroversial that MEAs continue to apply during IACs is when the MEAs themselves provide for their application during armed conflicts, as pacta sunt servanda would restrain states from claiming these defences against wrongfulness. This applies vice versa where MEAs provide for their non-application during IACs.


The general presumption, as noted by the ILC, is that if state parties had foreseen such fundamental changes in circumstances, they would have provided for it “in a different manner”. For instance, Article 9 of the Convention on Third Party Liability in the Field of Nuclear Energy (1960) states that operators shall not be liable for damage caused by a nuclear incident directly resultant from armed conflicts.


Regrettably, almost all other MEAs are silent on their continued applicability during IACs, thus leading to this debate. This is the case with several of the MEAs cited by Manav to establish an IEL breach in terms of ‘trans-boundary harm’, i.e., the Convention on Biological Diversity (1992), the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992), and the Stockholm Declaration (1972). Given this silence, how can one assess their potential continuity during the IAC between China and India?


Theories Of Continued Applicability And Galwan Valley


i. Classification Theory


The United Nations Environment Programme in a report published in 2009 (“UNEP report”) recognised at least four distinct theories of continued applicability. The first is what’s called the “Classification” theory, an extensive account of which was produced by the learned Silja Vöneky. This theory classifies eight groups of treaties which are not suspended during IACs, one of which refers to “human rights treaties”. Vöneky argued that the Convention of Biological Diversity (and by implication, similar MEAs) was “sufficiently analogous” to a human rights treaty because of its detailed schemes for environmental protection. This is since these MEAs primarily aim to protect global environmental resources, which are a “common good” (UNEP report, p. 44). That the other aforementioned MEAs also seek to protect such “common” interests is unquestionable, as this very language can be located in their preambles. Thus, adopting the Classification theory ensures that the protection offered by all the key MEAs highlighted by Manav continues, despite IACs arising.


ii. Combining Classification With Intent


The Classification theory has been criticised for being too simplistic by not accounting for the original intent of MEAs on whether they are to apply only during peace-time. This shortcoming was considered by Boelart-Suominen’s combination of the Classification theory with the traditional “intention” theory. Suominen acknowledged that in several cases, MEAs would not clearly fit any of the categories envisioned in the Classification theory. In such cases, she argued that recourse must be had to the intent of the MEAs, assuming that a “clear and consistent” intent could be located (UNEP report, pp. 44-45). Thus, this approach strikes a balance between ensuring continuity of treaties, while admitting that in some cases continuing the effectiveness of these treaties could be incompatible with an IAC.


With respect to the MEAs cited by Manav, it is difficult to argue that such an intent is “clear and consistent”, owing to their silence on this question, and as there are strong disagreements as regards the continuity of these MEAs between states [Nuclear Advisory Opinion (supra)]. In short, continued applicability of these MEAs may be unlikely under the classification-cum-intent theory.


iii. The Sliding Scale Theory


The third theory is that of the “sliding scale”. This theory admits that IEL norms continue to apply during IACs, but posits that their applicability has an inverse relationship with “military necessity”, meaning that the effect of IEL decreases with increasing military necessity (UNEP report, p. 45). Military necessity means that armed forces can do whatever is “necessary” to achieve their legitimate military purposes. The only such purpose in IHL is weakening the military capacity of the enemy state, provided that this is not otherwise unlawful under IHL.


Manav argues that the PLA’s activities violate Article III of both the 1993 agreement and the 1996 agreement between India and China to further peace at the LAC, which provide that both sides shall limit their troops at the LAC. Thus, he contends that these activities are not exempted as militarily necessary. This is debatable since, as mentioned, such acts are not permitted as militarily necessary specifically if they violate any IHL provisions; whereas the bilateral obligation to limit their troops is not a jus in bello obligation, and instead concerns jus ad bellum. This is because, first, it applies equally outside IACs (before they arise), i.e., during peace-time. In fact, some obligations in these agreements, such as informing the other side before conducting military operations near the LAC, seem specifically tailored to peace-time. Second, the preambles of both the agreements refer to the “use of force”, whereas any references to duties governing IACs is absent.


Thus, the PLA’s activities may be unlawful under these agreements, but whether this unlawfulness amounts to unlawfulness under IHL seems unclear. Consequently, damaging the environment to amass the PLA’s troops could be militarily necessary as it seeks to weaken India’s military capacities, which under this theory would lead to non-continuity of the MEAs.


iv. The Theory Of Differentiation


The last major theory, and the one I find the most compelling, is the theory of differentiation expounded by Michael Schmitt (UNEP report, p. 45). Schmitt argues that the “survivability” of IEL treaties must be tested against five contextual standards, of which one metric is the most relevant here. States can claim “fundamental change of circumstances” to suspend MEAs during IACs, only if the application of the MEAs during peace-time had been the “essential basis of agreement”, as per Article 62(1)(a) of the Vienna Convention on the Law of Treaties [(1969) “VCLT”]. Schmitt interprets this to be the case, only if compliance with the MEAs would hamper effective combat operations. Seen as thus, the MEAs’ breaches claimed by Manav against China may not be valid, as the application of these agreements would hinder China’s military operations.


However, and importantly, Schmitt qualifies this by adding that the change of circumstances must not be the result of that very party’s breach of any of its international obligations, as per Article 62(2)(b) of the VCLT. As I have established elsewhere, it was China’s incursions into what was understood to be Indian territory beyond the LAC that gave rise to an IAC in the Galwan Valley stand-off. China’s intrusions into Indian soil violated the prohibition on the use of force under Article 2(4) of the United Nations Charter. Thus, since the IAC, i.e., the fundamental change in circumstances was caused owing to China’s breach of Article 2(4), it cannot claim rebus sic stantibus, and the MEAs discussed earlier would indeed continue for China.


This contextual factor of Schmitt’s theory reflects the existing position of law since it is based on well-recognised principles codified in the VCLT. Given this, I conclude that the MEAs cited by Manav continued to bind China during this IAC, and the breaches Manav claims are thus valid.


Concluding Thoughts


There are immense differences in perspectives of continued applicability of MEAs highlighted in this post, and strong disagreements between states on this front. There is even less clarity over a question unexplored in this post, i.e., the potential continued applicability of customary IEL norms during IACs. These regrettable uncertainties cement the idea that IHL has thus far been inherently anthropocentric (centred around humans), offering little heed or protection to the environment or ecology.


It is encouraging to note that, in the past decade, the ILC and the United Nations General Assembly have grown more attentive to filling these lacunae and have advocated for the continued application of robust IEL frameworks during IACs (see here and here). Whether these efforts will fruition depends entirely on states’ commitment to realise the urgency of mitigating the horrors of armed conflicts against the environment, which is already suffering from worsening climate change. More urgently, I reaffirm the growing sentiment that peace must be restored to the Galwan Valley at the earliest, and pray that India and China are able to amicably resolve this stand-off soon, lest it escalates beyond recovery.

1 view0 comments

Comments


bottom of page