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  • Manav M. Bhatt

Indo-China Border Tussle and its Impact on the Environment of the Eco-sensitive Area......

This article has been authored by Manav M. Bhatt, II-year student at Hidayatullah National Law University, Raipur.

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 Law

​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, [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,

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