Annie Villeneuve is a legal intern
in the Legal Office, FAO, Rome.
Patrice Talla and
Mohamed Ali Mekouar
also work in the FAO Legal Office.
This article is partly based on a previous study on mountain legislation undertaken by Astrid Castelein in the FAO Legal Office.
Mountain-specific laws are desirable to support sustainable mountain development, yet few have been developed at either the national or international level.
Despite their importance throughout human history and their wealth of resources, mountains have only recently begun to attract the attention of political decision-makers and economic planners. National and international lawmakers similarly failed until recently to take an interest in mountain areas. It was not until 1991 that the Alpine Convention, the first transnational agreement relating to a mountain range, came into being, and the first national laws in this area were passed only a few years before that. Mountain law is still in its infancy: there are few mountain-specific legal instruments currently in force at either national or international level.
This article looks at the development of this type of legislation, broadly describing the major mountain-specific instruments, first at the international and then at the national level. Many laws governing related areas, such as agri-culture, forests, soils, the environment, catchment areas and land use planning, also affect the legal status of mountains, but this article is primarily limited to those that are specific to mountains.
Because mountain ranges often cross national borders, the issues involving them are inherently transnational. In such contexts, global or regional dimensions of mountain protection and development that warrant international cooperation or action need to be legally addressed. However, with the exception of the Alpine Convention, this need has not prompted the shaping of legally binding, mountain-specific international instru-ments, either globally or regionally.
Absence of a worldwide mountain-focused convention. The fact that so far no global treaty has been created for mountain ecosystems is partly due to the existence of numerous conventions which, though not directly dealing with mountains as such, do have some bearing on mountain peoples and resources. Examples from the recent past include the conventions arising from the 1992 United Nations Conference on Environment and Development (UNCED): the 1994 Convention to Combat Desertification, whose preamble acknowledges the impacts of desertification on arid regions with mountain ecosystems in Africa, the Transcaucasus and central Asia; the 1992 Convention on Biological Diversity, whose relevance stems from the fact that mountain ecosystems are frequently home to biodiversity-rich areas; and the 1992 United Nations Framework Convention on Climate Change, whose preamble notes the special vulnerability of "fragile mountain ecosystems" to climate change. Other earlier conventions are also relevant to mountains in some respects, such as the 1972 World Heritage Convention, as many natural sites included in the World Heritage List are mountain areas of outstanding importance, or the 1968 African Convention on the Conservation of Nature and Natural Resources, which addresses some mountain-related issues such as soil erosion in connection with agriculture and land use planning. (See Fodella and Pineschi, 2000 and Lynch and Maggio, 2000 for discussion of other conventions with mountain relevance.) The potential contribution of such conventions to sustainable mountain management is, however, limited to the specific aspects they cover in relation to mountain protection or development.
In addition to the mountain-related provisions of those conventions, there are some general principles of inter-national environmental law which are applicable to mountain ecosystems. One is the obligation of States to manage their natural resources so as not to "cause damage to the environment of other States or of areas beyond the limits of national jurisdiction" (Principle 2 of the 1992 Rio Declaration on Environment and Development). Another is the duty to cooperate in a spirit of partnership (Principle 7 of the Rio Declaration), which may apply to the management of transborder mountains shared by two or more States. More broadly, the principle of sustainability is key to the manage-ment of mountain ecosystems. Though not precisely defined in this context, it implies a wise and equitable use of mountain resources in environmental, economic, social and cultural terms, taking due account of the interests of both present and future generations.
The Alpine Convention, the only legally binding instrument that specifically deals with a mountain range, provides for the protection and sustainable development of the Alps in their entirety as a uniform regional ecosystem - shown here, the eastern part of the Swiss Alps
- FAO FORESTRY DEPARTMENT/FO-0349/T. HOFER
A regional mountain-specific accord: the Alpine Convention. The principles of sustainability are, in essence, reflected in the only legally binding instrument in existence that specifically deals with a mountain range: the Convention on the Protection of the Alps. Adopted in Salzburg, Austria, in 1991, it entered into force in 1995. Its initial signatories - Austria, France, the European Community, Germany, Italy, Liechtenstein and Switzerland - were later joined by Slovenia (1993) and Monaco (1994). All nine parties had ratified the convention by 1999.
The Alpine Convention provides for the protection and sustainable development of the Alps in their entirety as a uniform regional ecosystem. Parties agree to establish a comprehensive policy to this effect, and endeavour to cooperate in several areas of common interest, including, among others, agriculture, forestry, land use planning, protection of landscapes, culture and population, leisure activities and air pollution control. The convention is designed as a framework-type agreement: its sub-stantive provisions are set out in general terms which need, for their effective implementation, to be specified through additional protocols.
Between 1994 and 2000 nine such protocols were concluded, on mountain agriculture, nature protection and landscape conservation, land use planning and sustainable development, mountain forests, tourism, soil conservation, energy, transport, and dispute settlement. The Convention provides for four other protocols that have not yet been prepared, to address population and culture, water, air quality, and waste management.
Some of the protocols, especially the one on transport, have been hard to negotiate and to agree upon. Although now signed by most parties, none of the protocols has been ratified to date. The Alpine Convention is therefore yet to be fully implemented.
Nonetheless, as a good basis for transboundary collaboration, this convention is viewed as a model for developing mountain accords in other regions of the world. Similar range-wide agreements are currently in the making, at varying stages of preparation or design. They include in particular proposed conventions for:
Soft law instruments, such as declarations or resolutions, plans of action or codes of conduct, have been frequently used over the past decades to promote norm-creating processes that can help lead to the development of hard law agreements. Such instruments are generally shaped and adopted through international fora and meetings. A number of them concern mountain peoples and ecosystems, such as Chapter 13 of Agenda 21 and various other post-UNCED declaratory documents, some of which are briefly outlined below.
A global mountain platform: Chapter 13 of Agenda 21. "Managing fragile ecosystems: sustainable mountain development" is the title of the chapter that was devoted to mountains under Agenda 21 at UNCED in 1992. By endorsing it at the highest political level in such a global forum - which assembled 180 UN member countries - the international community, for the first time, clearly and formally signalled its common concern for the world's mountains as essential reservoirs of natural and human resources, which need to be preserved, restored and developed.
Chapter 13 is a policy tool geared towards action at the national and international levels. It identifies rural development, food security, fresh water, biological diversity, forests, climate change, culture, traditional knowledge and tourism, among others, as the main mountain issues at stake. Major programme areas which are crucial to achieving sustainable mountain development include:
Assessing the progress made in implementing Chapter 13 since UNCED, the Commission on Sustainable Development (2001) concluded that the level of economic development in most mountain regions of the world "remains unacceptably low". However, it also found that significant results have been achieved, particularly in the creation of innovative mechanisms that foster collaboration among the sectors involved in mountain issues, as well as the adoption of approaches that increasingly balance development needs and environmental concerns.
A range-wide agreement, along the lines of the Alpine Convention, is currently in preparation for the Carpathian range in central/eastern Europe - shown here, Tatra National Park in the Carpathians in Slovakia
- FAO FORESTRY DEPARTMENT/FO-0337/T. HOFER
A draft world charter for mountain populations. In the final declaration of the World Mountain Forum, held in Paris and Chambéry, France, in June 2000, more than 800 persons representing 70 mountain countries endorsed a draft world charter designed to represent the needs and aspirations of mountain peoples (World Mountain Forum, 2000a, 2000b). According to the draft, three conditions are crucial to meeting mountain populations' requirements:
The draft charter makes provision for the establishment of a worldwide organization to be called "Mountains of the World", which would speak for mountain areas, and whose membership would be open to local authorities, associations and groups representing mountain dwellers. Alongside this organization, there should be a financial mechanism, possibly in the form of a foundation, which would mobilize the resources needed to strengthen cooperation and build partnerships among mountain regions and countries.
The soft-law African Mountains and Highlands Declaration adopted in Antananarivo, Madagascar in 1997, highlights the major problems affecting Africa's mountain ecosystems and provides policy recommendations to address them - shown here an eroded hillside near Marinarivo, Madagascar
- FAO/20498/A. PROTO
Other non-binding instruments: some illustrations. In the aftermath of UNCED, a flurry of soft law instruments on mountain ecosystems, often inspired by Chapter 13, were developed through governmental and non-governmental fora in many regions of the world. Some of them are listed below by way of illustration.
Main examples of domestic legislation specific to mountains | ||
Country |
Mountain-specific legislation |
Web site |
Bulgaria |
Bill on the development of mountain regions (1993) |
www.bild.net/legislation |
Cuba |
Decree 197 of 17 January 1995 on the Commissions of the Turquino-Manati Plan |
|
France |
Act 85-30 of 9 January 1985 on mountain development and protection Framework law 95-115 of 4 February 1995 governing land use planning and development Framework law 99-533 of 25 June 1999 governing sustainable land use planning and development and amending Act 95-115 Decree 85-994 of 20 September 1985 on the membership and operation of the National Mountain Board Decrees 85-995 to 85-1001 of 20 September 1985 on the membership and operation of the committees covering the seven mountain ranges in France (Central range, Northern Alps, Southern Alps, Corsica, Pyrenees, Jura, Vosges) Decree 2000-1231 of 15 December 2000 on the use of the term "mountain" |
www.legifrance.gouv.fr |
Georgia |
Act of 8 June 1999 on the socio-economic and cultural development of mountain regions |
www.parliament.ge/ LEGAL_ACTS/legi.html |
Greece |
Act 1892/90 encouraging the economy and development of mountain regions, amended by Act 2234/94 |
|
Italy |
Act 991 of 25 July 1952 on woods, forests and mountain areas Act 1102 of 3 December 1971 on woods, forests and mountain areas (amended by Act 142/1990) Act 97 of 31 January 1994 on woods, forests and mountain areas Regional laws (Abruzzo, Basilicata, Calabria, Friuli-Venezia Giulia, Lazio, Liguria, Lombardy, Marches, Molise, Piedmont, Tuscany and Umbria) Law of the Autonomous Province of Bolzano |
leg_regi/reg_indi.htm |
Russian Federation |
Act of 30 December 1998 on mountain territories of the Republic of North Ossetia-Alania |
|
Switzerland |
Federal Act of 21 March 1997 on aid to investments in mountain regions Ordinance of 7 December 1998 on the cadastral survey of agricultural production and area demarcation |
www.admin.ch/ch/ index.fr.html |
Ukraine |
1995 Act on the status of human mountain settlements |
|
The international instruments reflect States' common concern to protect and develop major mountain ecosystems at regional and subregional levels. For this reason, they are indeed necessary. However, practical mountain conservation and development measures take place mainly within State borders through national legislation. Insofar as locally enacted laws meet the special needs of the mountain peoples and the mountain areas they cover, they are best suited to fulfil their regulatory role efficiently (Lynch and Maggio, 2000).
So far a dozen or so States have passed exhaustive or sectoral mountain-specific laws. Cuba, France, Georgia, Greece, Italy, Switzerland and Ukraine are among the few countries that have passed laws covering mountain protection and development. Other States, such as the Russian Federation (including Siberia), Kyrgyzstan, Morocco and Romania, are about to draw up or enact similar laws. For instance, Bulgaria has fully completed the preparation of a bill on mountain areas. The main examples of national legislation are listed in the Table.
In addition, in some countries mountain legislation has been developed at a subnational level. An example is the Republic of North Ossetia-Alania in the Russian Federation, with its Act of 30 December 1998 relating to mountain territories. In Italy, most mountainous regions have enacted mountain laws between 1996 and 2000.
An analysis of national provisions reveals a number of points of convergence or similarities which may be summed up under five aspects: conceptual, institutional, economic, social and environmental.
Promoting the protection and development of mountain areas is the first aim of most laws relating to mountains. Within this general objective, the emphasis is adjusted to fit national contexts. For example, Switzerland uses financial incentives to encourage the development of mountain regions. Respecting the cultural identity of mountain communities is a further aim pursued by a number of laws. In the Northern Ossetia law, mountain peoples have priority rights to use the natural resources. In terms of socio-economic benefits, they can also expect the same treatment as lowland inhabitants. Sustainable development of mountain areas is another common legislative aim. In the Georgian law, a stated objective is to meet the needs of today's mountain peoples as well as those of future generations. Likewise, one of the aims of the Swiss law on aid to investments is the promotion of sustainable development of mountain regions through the allocation of funding for infrastructure development.
In addition to stating their aims, national laws define the term "mountain", setting parameters to demarcate their area of application. Of the currently used definition criteria, altitude is the most significant, for at certain altitudes living conditions become much more difficult and precarious than in the lowlands. It is often the altitude factor that makes it necessary to have specific laws. In addition, specific natural characteristics such as climate, vegetation and topography make it possible to determine a mountain's boundaries. The box belowgives some examples of legal definitions.
Examples of criteria used in the definition of mountain areas FRANCE - Act 85-30 (Sections 3 and 4)
GEORGIA - 1999 Act (Section 4)
SWITZERLAND - 1998 Ordinance on cadastral surveys (Section 2)
ITALY - 1971 Act, amended in 1990
|
Because of the particular features of mountains, the administrative organiza-tion of mountain areas usually leads to the establishment of specialized institu-tions with support, advisory, coordina-tion or management powers with regard to mountains. For example, in France, Act 85-30 established such structures at two levels: first, at the central level, the National Board for Mountain Develop-ment, Management and Protection coordinates government action in mountain areas; second, for each mountain range - there are seven altogether - a committee issues opinions and proposes management, protection and development measures. Local inhabitants are involved in decision-making processes (Decree 85-994). Similarly, the Greek law makes provision for the adoption of specific legal texts for each of the country's mountainous areas; in some cases this has already been done (United Nations, 1997).
In Italy, the national mountain fund established under Act 97 of 1994 is funded by contributions from the State and the municipalities; the funds are distributed between the regions and the autonomous provinces - shown here, the Italian Dolomites, Alto Adige
- FAO FORESTRY DEPARTMENT/FO-1070/J. BALL
In Cuba, an interministerial commission was established to promote socio-economic development in mountain areas (1995 Decree). The Bulgarian bill makes provision for the establishment of a National Board for Mountain Regions whose role will be to supervise the implementation of the law and to coordinate actions of the State, of mountain district authorities and of mountain commune associations.
Bulgaria (whose scenic mountains are seen here at Govedartzy) has completed the preparation of a bill for the development of mountain areas; a national board will supervise the implementation of the law and coordinate actions of the State, mountain district authorities and mountain commune associations
- FAO FORESTRY DEPARTMENT/FO-0459/C. PALMBERG-LERCHE
Some countries have not found it appropriate to establish institutions to deal specifically with mountains. Nevertheless, they have mechanisms to ensure that central and local bodies can consult and share responsibilities. This is the situation in Switzerland, a Federal State where powers are shared between the Confederation and the cantons. The law on aid to investments in mountain regions sets out their respective powers. Thus, the cantons are responsible for implementing the law, whereas the Confederation monitors the actions they take; and funding is provided by the Confederation, while the cantons determine the loan allocations.
Because of the characteristically harsh conditions of mountain areas, legislators have often seen the necessity of designing measures to develop their economic potential. Promoting the economic dimension of mountain development by encouraging mountain dwellers to develop their own resources is the main aim of most national laws. To this end, special funds are usually set up (see Box).
Examples of special funds for mountains BULGARIA Chapter V of the 1993 bill, which deals with the development fund for mountain regions, states that its accrued resources will be redistributed in the form of subsidies, investment loans, research funding, etc. ITALY The national mountain fund established under the 1994 Act is funded by contributions from the State and the municipalities. The funds are distributed between the regions and the autonomous provinces. The latter establish their own regional mountain funds and decide how they are to be allocated. FRANCE Initially, Section 80 of Act 85-30 made provision for an intervention fund for mountain self-development. This fund was later absorbed by the national land use planning and development fund, designed to pool credits earmarked, inter alia, for mountain development (Act 95-115). SWITZERLAND Section 14 of the 1997 Act provides for a fund designed to finance aid to investments in mountain areas, including loans for the establishment of new mountain infrastructure. |
Mountain agriculture. Many mountain people depend on agriculture, which not only meets their food requirements directly, but also helps to create jobs and contributes to economic development. Hence the pride of place that agriculture occupies in many mountain laws. In France, agriculture is acknowledged as being of public interest inasmuch as it is essential for the mountain peoples (Section 18 of Act 85-30, incorporated in Section L.113-1 of the rural code). In Georgia, agrifood industries are considered to be one of the cornerstones for the socio-economic development of mountain regions. In Switzerland, general legislation dealing with agricultural development (the 1998 Federal Law on Agriculture and the 1998 Ordinance on Direct Payments to Agriculture) contains provisions for the promotion of mountain agriculture. An example is financial aid for crops grown on sloping land (Section 75 of the 1998 Ordinance).
Mountain tourism. The growing attraction of mountain areas as a tourist destination has led to an expansion of leisure activities, with an increase in accommodation facilities, amenities and infrastructures that can undermine the natural and cultural environment of mountain ecosystems. In an effort to remedy this situation, legislators have placed certain restrictions on mountain tourism. In France, Act 85-30 devotes an entire chapter to the running of tourism facilities and the management of ski lifts and ski runs, which must be operated under the supervision of the local authorities. For all new operations, contracts must be drawn up between the promoters and the local authorities, thereby allowing for some control over tourism development. The Georgian law provides for aid to investments and subsidized loans for mountain tourism that respects historical monuments and nature sites. The Ukrainian law also makes provision for subsidies and loans for tourism development (Zakrevsky, 1995).
Local products. Some laws deal with local products, usually crafts, from mountain areas. France awards a special label to such products as a guarantee of their quality and to promote local production (Act 85-30). Awarding of the "mountain" label is subject to conditions fixed by Decree 2000-1231. In Italy, a similar label is awarded to products made in mountain areas (1994 Act). The Georgian law encourages traditional mountain cottage industries by providing loans on preferential terms.
National laws seek to improve the living standards of mountain communities by providing conditions comparable to those enjoyed by the lowland population. Recommended measures include the improvement and development of infrastructure and the enhancement of public services in mountain areas.
Infrastructure and communications. The isolation of mountain populations is often due to the lack or inefficacy of means of communication - hence the palliative measures put in place by legislators. The Georgian law provides for a change in mountain road construction standards. In Ukraine, subsidies and loans may be granted for the development of public transport, roads, and telecommunication and broadcasting facilities (Zakrevsky, 1995). Switzerland's 1997 Act on aid to investments makes provision for loans for mountain infrastructure develop-ment. In order to be able to obtain these loans, projects must aim at improving living standards, economic potential and industrial competitiveness in the region. Some measures seek to reduce mountain isolation through the development of communication systems. In France, Act 85-30 provides for improving the efficiency of radio and television broadcasting techniques. In Italy, local public services in mountain communities must open information offices to remedy communication shortcomings and must give their inhabitants free access to non-confidential information available to them (1994 Act).
Culture, education and health. Mountain people have an unrivalled knowledge of their environment. However, they must be in a position to capitalize on and transmit that knowledge using the appropriate tools. To this end, Northern Ossetia's law makes provision for public financing for scientific research and teaching activities in mountainous regions. The Ukraine law provides for State loans and subsidies for health and education in mountain areas (Zakrevsky, 1995). In France, school and university education and teaching programmes must take into consideration the specific environmental, economic and social conditions of mountain ranges (Act 85-30).
The fragile mountain ecosystems need to be protected against damage from forest clearing or soil erosion. Thus provisions to protect the environment are commonly included in laws pertaining to mountains, as well as in related texts (laws governing forests, water, soils, the environment, land use planning, etc.). The Northern Ossetia law prescribes rational use of mountain natural resources, with provision for liability of users who damage those resources (Sections 15 and 16). In Italy, water management, reforestation and erosion control measures may be taken for environmental protection purposes, including expropriation of lands whose conservation is necessary (1971 and 1994 Acts). Likewise, mountain soil improvement is one of the priori-ties of the Ukrainian law (Zakrevsky, 1995). The Georgian law seeks to provide protection for mountain ecosystems, including adequate management of their natural resources and rehabilitation of their arid areas (Section 1).
After nearly a decade of implementation of Chapter 13 of Agenda 21, only a few countries, such as France, Georgia, Italy, Switzerland and Ukraine, have adopted legal instruments focusing specifically on mountain areas.
In most countries mountain-related laws still do not fully address the particular conditions and needs of mountain regions and peoples. Existing legislation tends to have a bias towards lowland priorities, thereby undermining the interests of mountain ecosystems and inhabitants.
It is therefore desirable to develop mountain-specific laws, as well as appropriate institutional structures such as national mountain committees, in order to provide normative tools that are supportive of sustainable mountain development, as well as to facilitate coordination with other mountain-related laws and institutions.
To be effective and efficient, mountain-specific legal frameworks should:
Such legal frameworks should be based on and supported by comprehensive national policies and strategies for the sustainable management of mountain ecosystems. They should also be supplemented, where appropriate, by regional agreements, like the Alpine Convention, which provide for transfrontier collaboration among countries sharing mountain ranges.
The International Year of Mountains is a unique opportunity to launch a global programme for the advancement of the law of the mountain.
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