ROLE OF LAWS AND POLICIES FOR ADDRESSING THE UNIQUE HUMAN AND BIO-GEOGRAPHICAL CHARACTERISTICS OF MOUNTAIN AREAS

Law has an important, but by no means exclusive, role to play in promoting and securing the civil, political, economic, cultural and environmental rights of affected groups, and in ensuring that the benefits and burdens of development are equitably distributed. The absence of specific laws and policies for addressing the unique human and bio-geographical characteristics of mountain areas occurs in the context of the broader failure of nation states to develop appropriate domestic and international legal frameworks for human rights and community-based management of renewable natural resources. Indeed, the conservation, sustainable development and environmental protection of forests and other natural resources has for too long been characterized by the failure of governments to foster appropriate and equitable local incentives, legal and otherwise, for sustainable development.

Rights of association, access to justice, access to information and freedom of expression, are considered particularly critical for the success of national human rights and environmental movements.

Simply stated, law and policy can either undermine or promote conservation and sustainable development. A study by the research institute of innovative mechanisms for financing conservation and sustainable development in mountainous regions around the world, found that legal, regulatory and enforcement structures are important contributing factors. Indeed, no other contributing factors were as consistently identified. In one example, Nepal’s Community Forest Directives 2052 (1995) shifted legal authority from the central government to local communities as part of a strategy for promoting the sustainable management of mountain woodlands that were previously suffering from accelerated depletion and degradation. In the past survey, it was observed that sixty-seven per cent of nearly 1,000 respondents to non-governmental organizations (NGOs) working on mountain issues felt that “political decisions and legal prescriptions (or their absence or inability to enforce) are principally responsible for environmental degradation in mountain regions.” The next most important causes cited were developers/road construction and tourists.

The importance of legal strategies for promoting the well-being of mountain peoples and ecosystems points to the need for a new paradigm in natural resource management that is premised on a principle of subsidiarity. Innovative and integrated legal and policy agendas must reflect a “mountain perspective” that brings together government, businesses, local communities, and mainstream societies in a comprehensive, democratic and equity-driven process. At a minimum, this approach should enable communities to participate in official decision-making processes concerning the use of natural resources they directly depend on for their lives and their livelihoods. The goal in many instances should be to foster state/local community partnerships that may also involve other actors such as NGOs and commercial enterprises.

A horizontal and vertical matrix of mutually supportive law and policy relationships extending from the local to national, regional and international spheres is needed to promote the well-being of mountain peoples and ecosystems. International and national initiatives can learn much from local efforts that are already underway, and local initiatives can draw support from positive developments underway on the international and national scenes. Some international instruments, such as the 1992 United Nations Conference on Environment and Development (UNCED) Forest Principles or the Convention on Biological Diversity, for example, may appear as abstract global pronouncements with little connection to underlying realities. Local management agreements linked to the aims of international texts such as these, however, can create more authoritative legal mechanisms for promoting the well-being of mountain peoples and the sustainable development of mountain ecosystems.

Participants in the Mountain Forum’s electronic conference on “Mountain Policy and Law” indicated that the most promising initiatives are those in which national/state governments defer to local communities in setting up and executing environmental and developmental projects. Quite often local populations have developed their knowledge of mountain ecosystems over long periods of time; much of this knowledge is a priceless intellectual resource. The participants largely agreed that the role of central/state governments should be to recognize the value of local knowledge and encourage, facilitate, support and help coordinate local initiatives by mountain peoples.

Legal strategies will inevitably vary depending on each nation’s unique history, cultures and environments, but common themes can be identified. Rather than being active participants in project design and implementation. For example, there is widespread sentiment that national/state governments should let communities take responsibility for identifying their own solutions to challenges affecting their development. Oftentimes, of course, the application of these solutions will require external technical assistance for schools, health care, agroforestry and support for enterprise development and communications.

As defined by researchers, “development” in the context of mountains, law should focus specifically upon enhancement of the welfare of human communities. Participants felt that any developmental processes or activities leading to a reduction of the quality of life in mountain communities could not contribute to real development, even where such activity is conducted under the objective of economic progress. Inequitable strategies that benefit certain populations at the expense of communities, whose way of life is impoverished, constitute “maldevelopment”. Under a new developmental paradigm it could be legally required. For example, the well-being of mountain peoples living in areas where mining, logging, road building or other activities are planned be of foremost concern in project design and implementation. A stronger form of this approach might be to prohibit external development interventions in all traditionally occupied mountain areas unless the local populations have a meaningful role in the design of the intervention, are assured proportionate benefits, and provide their prior informed consent.

Some law and policy makers place greater emphasis on conservation than on sustainable development and they may be troubled by the emphasis this statement gives to community-based property rights and management. This emphasis is based on growing evidence of the failure of exclusive state-management paradigms in mountain areas and elsewhere. It also reflects a conviction that all humans, by virtue of being human as well as being citizens, have a fundamental right to participate in official decisions and policies that directly impact on their lives and livelihoods. Community-based management, including the legal recognition of community-based property rights, is not a panacea for all the problems confronting mountain peoples and ecosystems. But especially in the majority world, i.e. in developing countries, it is essential for ensuring that local communities have legal incentives to participate as full-fledged citizens in efforts to conserve, protect and sustainably develop mountain ecosystems.

The best governmental response to promote sustainable management of mountain ecosystems in many, if not most, mountain regions in the majority world would be to officially recognize and delineate the perimeters of existing traditional systems, particularly in areas where mountain communities have a demonstrable concern for equity and the environment and a desire to manage natural resources sustainably. When modern science meets local cultures, there are often serious differences in approach to the management of natural resources. Nevertheless, legal recognition of community-based property rights or the devolution of power to local people, and their concomitant awareness of their responsibilities, can be a powerful stimulus for facilitating sustainable resource utilization. Devolution should be accompanied by an official commitment to strengthen local institutions through education and the creation of legal mechanisms to support people’s participation in the design and implementation of local laws. Such community-based and community-focused approaches will promote the practical application of sound international and national initiatives at the local levels.

International law already provides a basis for the recognition and protection of community-based property rights, at least insofar as indigenous and tribal peoples are concerned. As such, the legal recognition of indigenous community-based tenure systems need not be contingent on formal grants or documents from national or local governments, although official government support is obviously something to be welcomed.

The leading international human rights instrument calling for recognition of indigenous territorial rights is the International Labor Organization(ILO)1989 Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries. Article 13 of the ILO Convention 1989 specifies that references in it to land “shall include the concept of territories, which covers the total environments of the areas which the people concerned occupy or otherwise use.” Article 14 of the ILO Convention 1989 mandates recognition of the rights of indigenous peoples to own and possess their traditional territories. Additional support in international law for the recognition of the community-based tenurial systems can be found in the United Nations Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, as well as the International Court of Justice’s(ICJ) Western Sahara (Advisory Opinion) ICJ Reports (1975). The Australian High Court case, Mabo v. Queensland, 107 A.L.R. (1992), constitutes a landmark decision at the national level; it rectifies the longstanding practice of denying land and other resource rights to indigenous communities, based on the theory of territorium nullius/having no standing in law.

The legal recognition and delineation of community-based tenure systems would, in effect, repeal or override existing national laws and policies that in many countries are rooted in colonial legacies and influences, and promote “open access” to mountain ecosystems. This recognition, in turn, can help discourage in-migration, as well as illegal extraction and over-exploitation. It would put outside commercial entrepreneurs on notice that legal rights to extract natural resources within areas covered by community-based property rights are subject to community approval and profit sharing. Perhaps most important, recognition of community-based tenure rights would align national governments with — and officially tap the energies of — mountain-based communities that have resisted migration and unsustainable, externally supported extraction activities within their territories. It would also give an official imprimatur to ongoing local efforts to protect and conserve mountain ecosystems.

Specific Characteristics of Mountain Ecosystems Relevant to Law and Policy

The conservation, protection and sustainable management of mountain ecosystems require that participants in decision-making processes on international and national levels work together with local partners to ensure that laws and policies are appropriate for local situations. One of the recurrent themes raised in the Mountain Forum’s electronic conference on mountains and law was the need to focus on local-level implementation. Policy and legal instruments are typically ineffective if applied in isolation from other relevant factors, especially those on the ground, which is the only place where success can be measured.

The distinct characteristics of mountain environments require law and policy- makers to design integrated, comprehensive mechanisms directed specifically at sustainable mountain management. Law and policy-makers however, are typically far removed from rural peoples and environments, including mountain peoples and ecosystems. As such, they usually do not have the same interests, perspectives or priorities as local people dependent upon ecologically unique mountain locales. They also frequently assume that laws, policies and projects applied in lowland ecosystems can be successfully transplanted to mountain regions, the overemphasis on promoting and documenting individual property rights being an obvious example.

The unique combination of geophysical attributes of slope, altitude and climate play a defining role in shaping a mountain range’s cultural and biological features. The same characteristics that provide mountain communities with the challenges of poverty, inaccessibility, diversity, and fragility also constitute a nexus of common interests. An extraordinary commonality among mountain communities transcends the South-North divide. Mountain peoples from Switzerland to Nepal to Bolivia list among their highest priorities the maintenance of their cultural integrity, higher value added for the products produced in mountain areas for lowland consumption, and regulation of the influx of commercial entrepreneurs and tourists in places considered to be the home or sacred sites of mountain peoples.

Although generalizations are fraught with risk, they are often an essential starting point in any useful analysis. In general, the unique characteristics of mountain peoples and ecosystems include economic and legal marginalization, isolation, transboundary location, diversity of livelihood strategies, cultural diversity, and environmental sensitivity and diversity.

Mountain communities from the North American Appalachians to the highlands of southwestern China share a high incidence of poverty. People who live in mountainous regions often have lower food intake and productive capacities. This is due to, among other things, low soil fertility, shorter vegetation periods, smaller plots of arable land size, climatic vagaries, and higher caloric requirements related to lower oxygen content in the air.

Of course, not all mountain peoples are poor. There are a growing number of affluent individuals and communities in some mountain areas, especially in western Europe and in the North American Rocky Mountains. But most mountain peoples subsist on the edge of survival, struggling day to day to meet basic human needs for food and fuel. The number of counties listed as poor under China’s national poverty elimination program are in mountainous areas. Parts of the Tibetan Plateau, Peru and Bolivia experience chronic food deficits due to an inability of highland communities to produce enough grain and other crops.

The reasons for economic impoverishment of mountain communities are complex and varied. Among them is the tendency of national governments to accord lower priority to the economic and development interests of mountain communities, despite their greater need. Mountain areas are usually considered to be peripheral and less productive than other areas of the national territory. Yet at the same time, national governments bestow legal favours on outside business and political interests that covet mountain resources, such as water and minerals, but have little or no interest in the well-being of mountain peoples and ecosystems. Although local employment opportunities are sometimes generated by outside interests, economic patterns in mountain areas are largely characterized by net outflows of timber, minerals, water, and other resources with marginal beneficial return flows. This one-way extractive pattern is typical in mountain areas designated by national law as publicly owned resources, especially when governments unilaterally grant legal concessions to outside interests to extract resources.

Distinguished Policy tends to be general, aspirational and normative in nature. Unlike law, policy is generally non-binding and legally unenforceable. Policy statements, however, can lay the foundations for the articulation and further elaboration of norms, which may eventually crystallize into legal rules and principles. In contrast with policy, law generally embodies more specific standards that are legally binding upon the parties concerned. The breach of a policy is followed at most by moral reprimand or peer pressure. Sanctions or other enforceable measures can — at least theoretically — remedy violation of a law.

International policy instruments are generally non-binding expressions of intent or guidelines for proposed future national and international action. Examples include Agenda 21 and the United Nations Conference on Environment and Development(UNCED) Non-Legally Binding Authoritative Statement of Forest Principles. These broad and often unspecific statements — strong rhetoric notwithstanding — are important first steps but require further elaboration for implementation at the national and local levels. As one participant to the electronic conference observed, “[o]nce a policy framework is in place, other mechanisms such as legal provisions, institutional arrangements, incentive structures, and support systems can be developed because it is the overall policy which guides the creation of other arrangements”.

Global dialogue helps establish basic levels of internationally accepted best practices and generates peer pressure among governments to take actions specified in international instruments. International conferences, such as the 1992 United Nations Conference on Environment and Development(UNED), and other fora for creating international policies, contribute to the evolution of a common agenda among national governments. They also are increasingly serving as important vehicles for NGO participation in the formation of international norms and the dissemination of information. For example, NGOs played a major role in shaping the debate and catalyzing support for the drafting of the Landmines Convention.

In addition to the increasingly indispensable role of non-state actors, such as NGOs supportive of mountain populations and ecosystems, in creating international law and policy, another promising development is transboundary collaboration between neighboring states. Both mountain and lowland communities can derive benefits from cross-border collaboration. These benefits include cross-border tourism, cooperative efforts in conservation education and training, shared approaches to control of poaching, forest fires, movement of contraband and of livestock diseases, and recognition of mutual interests in improving the economic conditions of the local populations on both sides of mountain border areas.

Treaties and other international conventions are binding upon states that sign and ratify them, and along with what is understood to be customary international law among nation-states, are considered to be “hard law”. Enforcement however, is particularly problematic for many international law instruments and norms, because there is often no clear enforcement mechanism. In theory, parties to a treaty or convention can prescribe compliance by other parties through arbitration, an action before the International Court of Justice or by using other institutionalized dispute resolution mechanisms.

The following hard-law treaties or conventions have an important role to play in efforts to ensure the conservation and sustainable development of mountain ecosystems. Most of these conventions are “framework” conventions. As such, they lay out objectives, overall obligations and rights of the parties, and general parameters. Framework conventions rely upon protocols and other supplementary instruments to regulate the parties’ activities with regard to specific aspects of the instrument.

Convention on the Protection of the World Cultural and Natural Heritage, 1972, 27 UST 40, 11 ILM 1358 (1972), in force. The World Heritage Convention (WHC) establishes a normative regime for protecting, through international cooperation, “cultural and natural heritage of outstanding universal value.” The preamble to the WHC recognizes that cultural and natural heritage is under increasing threat not only from traditional forces such as aging, weathering and erosion, but also from “changing social and economic conditions.”

The WHC states that protection of cultural and natural heritage is often inadequate at the national level because of the scale of protection required and the lack of scientific, technological and economic resources in many countries. The WHC implies an international obligation of all states to provide “collective assistance” to individual states to protect outstanding examples of this heritage for the benefit of all people. At the same time, the convention accords full respect to the sovereignty of countries where particular examples of cultural or natural heritage are located.

Article 11 of the WHC authorizes nation-states to submit to the WHC Committee (which is under the auspices of the United Nations Educational, Scientific and Cultural Organization (UNESCO), a list of examples of their cultural and natural heritage that they seek to include for protection under the Convention. Article 2 deals with “natural heritage” and is particularly important for conserving mountain areas; it refers to inclusion of “geological and physiographical formations” and “natural sites and precisely delineated areas.” More than forty mountain areas around the world are on the World Heritage list, including the Virunga National Park (Democratic Republic of Congo), Mount Kenya (Kenya), Simen National Park (Ethiopia), the Pirin National Park (Bulgaria), and Yosemite National Park (USA). Inclusion of a site on the WHC list only signifies that the place is of such outstanding importance that the country desires international recognition for protection purposes. Listing does not guarantee that the particular site will be protected from further natural or human-related degradation. Nor are many important sites likely to be listed. Political, military or economic considerations may cause a government not to list some important mountain areas.

The discretionary nature of the WHC’s process for listing sites, and the fact that inclusion under the convention is in many instances only a designation that a site is “outstanding,” inhibits the capacity of the WHC to establish a necessary normative or substantive framework for effectively protecting mountain ranges.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), 33 ILM 1197 (1994), in force. Negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), the TRIPS. The agreement is the most important international legal instrument on intellectual property rights. It sets minimum standards for national protection of intellectual property rights and establishes procedures and remedies for their enforcement. Its enforcement measures — including the potential for trade sanctions against non-complying World Trade Organization (WTO) members — are unprecedented in the field of international intellectual property rights.

The Trade-Related Aspects of Intellectual Property Rights(TRIPs) Agreement states that all countries must either issue patents for plants or implement an “effective sui generis” system that would, among other things, recognize the rights of local farmers to their traditional seed varieties, including the right to trade them. This exception exists because many countries – – on economic, legal or ethical grounds — rejected the United States Government’s demand for patenting of plants and animals (Downes 1997). How to implement the sui generis exception, however, is unclear and remains a matter of great contention.

International Labor Organization(ILO) Convention No.169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1989, 28 ILM 1077 (1990), is in force since 1989. ILO Convention No.169 is the leading international human rights instrument calling for the recognition of indigenous territorial rights. Article 13 specifies that references in the Convention to land “shall include the concept of territories, which covers the total environment of the areas which the people concerned occupy or otherwise use.” Article 14 mandates recognition of the rights of indigenous peoples to own and possess their traditional territories. Article 15 adds that “The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the rights of these peoples to participate in the use, management and conservation of these resources.” International Labor Organization(ILO) members are legally obligated under Article 19 of the organization’s founding charter to implement the convention. Article 19, however, has yet to be effectively enforced.

World Charter for Nature, UN GA Res 37/722, ILM 455 (1982) is in force since 1982. The World Charter for Nature stresses the need to conserve natural resources and highlights concepts of recycling, waste minimization, restrained consumption, environmental assessment and responsible behaviour. The Charter’s universal relevance is evident in its prescription that: “All persons, in accordance with their national legislation, shall have the opportunity to participate, individually or with others, in the formulation of decisions of direct concern to their environment, and shall have access to means of redress when their environment has suffered damage or degradation.” The Charter articulates the intrinsic value of nature, irrespective of its utility to humans. It emphasizes the link between human civilization and nature. The Charter also reflects the beliefs of indigenous and other rural communities who live in harmony with their natural environments. Mountain peoples — because of their intimate relationship with nature, and the unique attributes of their regions — might find support in the Charter’s recommendation in Article 3 that “All areas of the earth, both land and sea, shall be subject to these principles of conservation; special protection shall be given to unique areas, to representative samples of all the different types of ecosystems and to the habitat of rare or endangered species.”

Convention on the Protection of the Alps, 1991, 31 ILM 767 (1992), is in force since 1992. A prime example of transboundary collaboration, the convention is a comprehensive, regional agreement for the protection and sustainable development of the Alpine areas of seven European countries. It avoids division along national lines and treats the Alps as a “uniform geographical area within Europe.” The characterization of a mountain range as an international region to be protected and developed is legally unprecedented; the Alps is the first mountain range to be covered in its entirety under an international instrument.

The Alpine Convention is also notable for its attempt to construct a political framework in which tradition and the modern world can find common ground, within an “anthropologically shaped cultural landscape.” It provides for incorporation into the broader national and regional land use plans of traditional farming and silvicultural practices in order to preserve the ecological soundness of the Alps. Under the convention, Alpine states are obligated to take appropriate measures to respect, preserve and promote the social and cultural identity of the population living in the region.

The convention requires Parties to pursue a comprehensive policy of protection and preservation and commits them to trans-frontier cooperation. These general obligations are to be implemented through protocols on mountain agriculture, land use planning, mountain forests, leisure activities, protection of nature and landscape management, population and culture, prevention of air pollution, etc. The protocols on economic development address the desires of local Alpine governments to promote attractive living areas as well as conservation.

European (Aarhus) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998), is in force since 2001. The Aarhus Convention grows out of an international process to define the concept of public participation in the context of sustainable development. The three principles of the Convention, broadly stated, are: 1) the public should have access to environmental information, with limited, explicit exceptions [the principle of access to information]; 2) the public should have a right to participate and have that participation taken into account in environmental decision-making processes [the principle of access to decision-making]; and, 3) the public should ultimately have access to an independent and impartial review process, capable of binding public authorities, to allege their rights have been infringed [the principle of access to justice]. The Convention is the first time that States have agreed on the minimum content of these principles and established their minimum procedural elements in a single, legally binding international agreement.

The Convention creates domestic obligations for ratifying European states. The majority of the provisions are not addressed to international organizations (other than possibly the European Union). Rather, they are addressed to the public authorities of national governments. At the same time, the Convention requires each Party to “promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment.”

Laws and policies concerning the well being of mountain peoples and the conservation and sustainable development of mountain peoples and ecosystems are relatively small in number. Yet mountain areas are some of the most important regions in the world and are environmentally, culturally, and economically fragile. Using the Mountain Forum’s electronic conference on Mountain Policy and Law as a starting point, after that it explores the role of law and policy in addressing special characteristics of mountain peoples and ecosystems. It identifies and analyzes existing laws and policies at the international, national, and local arenas, and makes recommendations.

Law and policy have been identified in surveys and studies as among the most important factors in the health of mountain communities and ecosystems, although their effect can be either positive or negative. In order to promote rather than undermine conservation and sustainable development, effective legal and policy instruments need to address the specific realities of mountain domains and should be based on a principle of subsidiarity. This means allowing natural resource management decisions to be made at the most appropriate local level. It likewise requires meaningful recognition of the special roles and potentials of local people directly dependent on mountain resources, sustained support for community-based management strategies, and ensuring that legal and policy instruments at different levels are mutually reinforcing.

Mountain regions also lack access to appropriate technologies. This severely limits their economic growth and the ability to respond to opportunities for the improved management and use of natural resources through, for example, eco- tourism or the maintenance of biodiversity. Insufficient resources, knowledge and political commitment will hamper, and in some cases prevent, the local implementation and enforcement of appropriate laws and policies.