Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 5, Issue 2, November 2017
Articles

Hindu Kush Himalayan Ecosystem as a Common Concern of Humankind: Imperative for Better Regional Jurisprudence

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  • Debasis Poddar
Debasis Poddar
National University of Study and Research in Law, Ranchi, Jharkhand
Bio

Published 2017-11-30

How to Cite

Poddar, D. (2017). Hindu Kush Himalayan Ecosystem as a Common Concern of Humankind: Imperative for Better Regional Jurisprudence. Kathmandu School of Law Review, 5(2), 42–52. Retrieved from https://kslreview.org/index.php/kslr/article/view/976

Abstract

Hindu Kush Himalayan region (hereafter the HKH) - with 3500 odd kilometres stretched in eight countries- is default resource generation hub for about one-fifth population of the world. The ecosystem-growing delicate these days- seems to play a critical role for the survival of flora and fauna along with the maintenance of all its life-sustaining mountain glaciers. Ten major rivers to carry forward hitherto sustainable development of these peoples fall into question now. Further, in the wake of global climate change today, the delicate HKH ecosystem becomes increasingly fragile to unfold manifold consequences and thereby take its toll on the population. And the same might turn apocalyptic in its magnanimity of irreversibledamage. Like time-bomb, thus, climate ticks to get blown off. As it is getting already too delayed for timely resort to safeguards, if still not taken care of in time, lawmakers ought to find the aftermath too late to lament for. Besides being conscious for climate discipline across the world, collective efforts on the part of all regional states together are imperative to minimize the damage. Therefore, each one has put hands together to be saved from the doomsday that appears to stand ahead to accelerate a catastrophicend, in the given speed of global climate change. As the largest Himalayan state and its central positioning at the top of the HKH, Nepal has had potential to play a criticalrole to engage regional climate change regime and thereby spearhead climate diplomacy worldwide to play regional capital of the HKH ecosystem. As regional superpower, India has had potential to usurp leadership avatar to this end. With reasoningof his own, the author pleads for better jurisprudence to attain regional environmental integrity inter se- rather than regional environmental integration alone- to defendthe vulnerable HKH ecosystem since the same constitutes common concern of humankind and much more so for themselves. Hence, to quote from Shakespeare, “To be or not to be, that is the question” is reasonable here. While states are engaged in the spree to cause mutually agreed destruction, global climate change- with deadly aftermath- poses the last and final unifier for them to turn United Nations in rhetoric sense o f the term.

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References

  1. International Centre for Integrated Mountain Development (ICIMOD) available at http://www.icimod.org/?q=1137, accessed on 25 February 2017.
  2. Ibid.
  3. Appendices to Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 available at https://cites.org/sites/default/files/notif/E-Notif-2016068-A.pdf, accessed on 26 February 2017.
  4. United Nations General Assembly (UNGA) Resolution No A/Res/43/53, adopted on 6th December 1988, para.1 available at http://www.un.org/documents/ga/res/43/a43r053.htm, accessed on 26 February 2017.
  5. UN Framework Convention on Climate Change, A/RES/48/189, adopted on 20 January 1994, preamble.
  6. Admittedly, the common concern approach imposes significant restrictions on the sovereign rights of states. However, it is evident that treaty regimes for the protection of the global commons will not entail any success unless almost all states and regions of the world participate and accept their common but differentiated obligations. Following the common concern declaration by the United Nations General Assembly, aimed at the protection of an essential condition which sustains life on earth, particular interest based on sovereignty should be of only secondary importance. See for details, Biermann Frank, 'Common Concern of Humankind: The Emergence of a New Concept of International Environmental Law', 34 Bd. No. 4, Archiv des Volkerrechts, p. 481 available at https://www.jstor.org/stable/ pdf/40798942.pdf, accessed on 26 February 2017.
  7. ‘Database on Bhutan and China in 'Carbon Footprints of Nations’ available at http://carbonfootprintofnations.com/content/carbon_footprint_worldwide_1990_2010_/, accessed on 4 March 2017.
  8. Ibid.
  9. International Law Commission, ‘Draft Article on Prevention of Transboundary Harm from Hazardous Activities’, 2001 available at http://legal.un.org/ilc/texts/ instruments/english /commentaries/9_7_2001.pdf, accessed on 4 March 2017.
  10. International Law Commission, ‘Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities’, 2006, available at http://legal.un.org/ilc/texts/instruments/english/commentaries/9_10 _2006.pdf, accessed on 4 March 2017.
  11. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ, 20 April 2010, para 204 available at http://www.icj-cij.org/docket/files/135/15877.pdf, accessed on 5 March 2017.
  12. Cases concerning Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v.
  13. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), ICJ, 16 December 2015, para 217 available at http://www.icj-cij.org/docket/files/ 152/18848.pdf, accessed on 5 March 2017.
  14. UNGA might pass a resolution requesting an advisory opinion about states’ obligations to prevent damage from climate change under international law. If it did, the ICJ would accept jurisdiction over the question, and it would look to customary international law, treaties, general principles of law, past cases, and scholarly writings to determine states’ duties.
  15. The ICJ opinion should find a customary international law duty to prevent transboundary harm, and should apply it to GHG emissions. If the ICJ announces this customary norm, and states do not follow it, they would do so knowing that they are violating the customary law. The Court may risk some legitimacy if its Advisory Opinion is openly not followed.
  16. However, I believe it risks more of its legitimacy if it says states can knowingly destroy other states without violating international law. At least, an opinion that states do have duties to prevent transboundary harm in the climate change context might create political and grassroots pressures to mitigate GHG emissions. Glickenhaus, Jesse Cameron, 'Potential ICJ Advisory Opinion: Duties to Prevent Transboundary Harm from GHG Emissions', vol. 22, New York University Environmental Law Journal, 2015, pp. 153-154 available at: http://www.nyuelj.org/wp-content/uploads/2015/02/Glickenhaus_READY-FORWEBSITE.
  17. pdf, accessed on 5 March 2017.
  18. At the end of the process, the EIA (Environmental Impact Assessment) agreements still leave the decision on whether to cause transboundary harm to the discretion of the state of origin. And, like domestic EIA, transboundary EIA seems unlikely to end all transboundary harm or even stop many harmful projects. The agreements will increase the number of factors to be considered in the EIA process, but the process will remain political rather than legal, with the likely result that projects will go forward with modifications that that reduce, but do not prevent, their transboundary effect. Knox H. John, 'The Myth and Reality of Transboundary Environmental Impact Assessment', vol. 96, no. 2, The American Journal of International Law, April 2002), p. 319 available at: https://www.jstor.org/stable/pdf/ 2693925.pdf, accessed on 5 March 2017.
  19. National Action Plan on Climate Change, 2008, India available at http://www.cseindia.org/ userfiles/National%20Action%20Plan%20on%20Climate%20Change.pdf, accessed on 11 March 2017.
  20. National Mission for Sustaining the Himalayan Ecosystem under the National Action Plan on Climate Change, 2010, India. Mission 5 got initiated under the aegis of NAPCC, 2008, available at: http://dst.gov.in/sites/default/files/NMSHE_June_2010.pdf, accessed on 11 March 2017.
  21. Ibid, p.2
  22. Broad Thematic Group 1: Sustainable management of land and water resources Broad Thematic Group 2: Environmental assessment and management
  23. Broad Thematic Group 3: Conservation and sustainable use of biodiversity Broad Thematic Group 4: Sustainable infrastructure and energy security Broad Thematic Group 5: Supplementary livelihood options
  24. Broad Thematic Group 6: Awareness and capacity building
  25. National Mission on Himalayan Studies (NMHS) available at http://nmhs.org.in/, accessed on 12 March 2017.
  26. See Government of India, ‘Press Release of the Ministry of Science and Technology’, 28 February 2014 available at: http://pib.nic.in/newsite/PrintRelease.aspx?relid=104353, accessed on 12 March 2017.
  27. Implementation status; key achievements till date:
  28. • Established 6 new centres relevant to climate change in existing institutions in Himalayan states.
  29. • Created an observational network to monitor the health of the Himalayan ecosystem • Several capacity building and training programmes underway
  30. See 'India’s Progress in Combating Climate Change: Briefing Paper', December 2014, p.9 available at: http://envfor.nic.in/sites/default/files/pressreleases/Indian_ Country_Paper_ Low_Res.pdf, accessed on 12 March 2017.
  31. Salus populi suprema lex i.e. the welfare of the people is the paramount law. See for details, Emanuel Lazar, Latin for Lawyers: The Language of the Law, Emanuel Publishing Corporation, New York, 1999, p. 363 available at http://www.politicalavenue.com/10862/The%20 Ultimate%20Latin%20Language%20Learning%20Pack/26%20Latin%20for%20Lawyers.pdf accessed on 13 March 2017.
  32. Paris Agreement 2015, adopted in the UNFCCC report of the Conference of Parties on its Twenty-first Session, arts 3,4,6,7 and 13, available at http://unfccc.int/files/home/ application/pdf/paris_agreement.pdf, accessed on 14 March 2017.