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Ramsar handbooks for the wise use of wetlands2nd edition, 2004

Handbook 3

Laws and institutions

Reviewing laws and institutions to promote theconservation and wise use of wetlands

This 2nd edition of the Ramsar handbooks replaces the seriespublished in January 2000.It includes relevant guidance adopted by several meetings of the

Conference of the Parties, in particular COP7 (1999) and COP8 (2002), aswell as selected background documents presented at these COPs.

This second edition of the Ramsar handbooks series, like the first, hasbeen made possible through a generous contribution from theGovernment of Spain, this time through the General Directorate forBiodiversity, Ministry of Environment.


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Acknowledgements

The Ramsar Secretariat gratefully acknowledges the work of Lyle Glowkaof the Environmental Law Centre (IUCN - World Conservation Union) andClare Shine, Barrister and Consultant in Environmental Law, in preparing

the Guidelines for reviewing laws and institutions to promote theconservation and wise use of wetlands (adopted at the 7th Meeting of theConference of the Contracting Parties as the Annex to Resolution VII.7)and the Background Paper Reviewing laws and institutions to promotethe conservation and wise use of wetlands (Ramsar COP7 DOC.17.3)which are produced here as Handbook 3 in Ramsars wise use toolkit.

The Secretariat also acknowledges the contribution of the seven casestudy authors, Bill Phillips (Australia), Clayton Rubec and Pauline Lynch-Stewart (Canada), Grethel Aguilar (Costa Rica), Devaki Panini (India),Pedro Solano (Peru), John Ntambirweki (Uganda) and Jens Enemark(Wadden Sea Countries). The authors prepared their respective casestudies and also took part in a workshop held in Gland, Switzerland, in

July 1998, which reviewed the draft Guidelines and Background Paper.Other participants at the workshop, which was chaired by JohnNtambirweki, included Gordana Beltram, Stphane Doumb-Bill andDavid Pritchard.

Note: the views expressed by the authors of the Background Paper(Section II) and case studies presented here do not necessarily reflect theviews of the Ramsar Convention, its Standing Committee or the Ramsar

Secretariat. The 7th Meeting of the Conference of the Contracting Parties(San Jos, Costa Rica, May 1999) endorsed Section I of this publication asthe Annex to Resolution VII.7.

In this edition, additions to and omissions from the text of the originalguidelines, required by the results of COP8, are shown in square brackets[].

All decisions of the Ramsar COPs are available from the ConventionsWeb site at http://www.ramsar.org/index_key_docs.htm#res. Background

documents referred to in these handbooks are available athttp://www.ramsar.org/cop7_docs_index.htm andhttp://www.ramsar.org/cop8_docs_index_e.htm.

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Table of Contents

AcknowledgementsForeword

Section I: Guidelines for reviewing laws and institutions topromote the conservation and wise use of wetlands

1.0 The purpose of a legal and institutional review2.0 Preparing for the legal and institutional review

2.1 Establish political and institutional responsibility for thereview

2.2 Establish the review team2.3 Define the review methodology

3.0 Carrying out the legal and institutional review3.1 Establish a knowledge base of relevant legal and

institutional measures3.1.1 Identify wetland-related legal and institutional

measures3.1.2 Identify sectoral legal and institutional measures

which directly or indirectly affect wetlands3.2 Evaluate the knowledge base

3.2.1 Assess the effectiveness of existing wetland-related legal and institutional measures inpromoting wetland conservation and wise use

3.2.2 Analyse how sectoral legal and institutionalmeasures directly or indirectly affect wetlands3.3 Recommend legal and institutional changes necessary

to support conservation and wise use

Section II: Reviewing laws and institutions to promote theconservation and wise use of wetlands Abackground paper

Table of Contents1.0 Introduction2.0 Ramsar, wise use and the law

3.0 Identifying legal and institutional measures which constrainconservation and wise use4.0 Developing legal and institutional measures to promote wiseuse5.0 Conclusion6.0 References

Relevant ResolutionResolution VII.7: Guidelines for reviewing laws and institutions to

promote the conservation and wise use of wetlands

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Foreword

In response to Action 2.1.1, Operational Objective 2.1 from the StrategicPlan (1997-2002) of the Convention on Wetlands (Ramsar, Iran, 1971),the Ramsar Secretariat commissioned the IUCNs Environmental Law

Centre to prepare Guidelines and a Background Paper on reviewing lawsand institutions to promote the conservation and wise use of wetlands. Ithas been prepared based on case studies from Australia, Canada, CostaRica, India, Peru, Uganda, and the Wadden Sea Agreement. Drafts of theGuidelines and Background Paper were prepared by Clare Shine and LyleGlowka and then considered at a workshop involving the case studyauthors and other experts held at the Ramsar Secretariat in July 1998.

Following the workshop, the Guidelines and Background Paper wererevised and a draft Resolution relating to the issues prepared forconsideration by the 21st meeting of the Standing Committee of theConvention. The Standing Committee endorsed these documents goingforward for introduction and consideration in Technical Session II,National planning for wetland conservation and wise use, at the 7th

Conference of the Contracting Parties, San Jos, Costa Rica, May1999(COP7).

This Handbook incorporates the Guidelines for reviewing laws andinstitutions to promote the conservation and wise use of wetlands, asadopted by Resolution VII.7 of COP7, and the Background Paper (RamsarCOP7 DOC.17.3). Summaries of the case studies referred to above, as

well as other resource materials, are included to illustrate certain aspectsof the Guidelines. The full texts of the case studies can be found on theWeb site of the Ramsar Secretariat, under the Wise Use Resource Centre,at http://ramsar.org/wurc_index.htm.

This Handbook is intended to assist Contracting Parties in reviewing theirlaws and institutions relating to wetlands, with the aim of developingappropriate legal and institutional frameworks for implementing theConvention and addressing the problem of wetland loss and degradation.

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Section I:

Guidelines for reviewing laws and institutionsto promote the conservation and wise use of wetlands

(adopted as the Annex to Resolution VII.7 by the 7th

Conference of theContracting Parties, San Jos, Costa Rica, 1999)

1.0 The purpose of a legal and institutional review(refer to section 2.3 of the background paper for more detailed

information)

1. The Conference of the Parties (COP) to the Ramsar Convention hasadopted guidance on appropriate legal and institutional frameworksfor wise use1, and this issue has also been included in the RamsarStrategic Plan 1997-20022. These instruments urge each Contracting

Party to develop national wetland policies to support wise use and toaddress all problems and activities related to wetlands in a nationalcontext. Wetland policies may be separate or may form a clearly-identifiable component of other planning processes (e.g., nationalenvironmental action plans or national biodiversity strategies andaction plans)3.

2. As part of this long-term policy development process, the COP hasspecifically called on each Party to review its legal and institutionalframeworks to ensure that these are generally compatible with thewise use obligation. The review should cover laws and institutions notonly at the national level, but also at the subnational and supra-national (i.e., regional economic integration organizations)4 levels.

These technical guidelines are intended to provide practical supportfor carrying out such a review.

(See page 6.)

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Additional information

Wetlands, Water and the Law

Using laws to advance wetland conservation and wiseuse

By Clare Shine and Cyrille de Klemm

1 Guidelines on the wise use of wetlands (Recommendation 3.3); Guidelines forthe implementation of the wise use concept(Recommendation 4.10);Additionalguidance for the implementation of the wise use concept(Resolution 5.6).

2 Adopted at the 6th Meeting of the COP, Brisbane 1996.3

See Guidelines for developing and implementing National Wetland Policies(Resolution VII.6).4 Operational Objective 2.1, Strategic Plan.

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Wetlands, Water and the Law provides a structured framework forconsidering the complex issues which exist between: wetlands, people and human

institutions; land and water use within and

beyond national boundaries; different economic sectors; public and private actors,

including non-governmentalorganizations;

scientific, economic and legaldisciplines;

legal instruments atinternational, national andlocal level; and

regulatory and incentive-basedapproaches to wetlandmanagement

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7

Parts 1 and 2 of the book set wetlands in their scientific, economic andlegal context, before describing the main legal issues involved inimplementing the Ramsar Convention. Parts 3-6 take an increasinglybroad focus, dealing respectively with site-specific and bioregionalapproaches to wetland management, generally-applicable techniques for

managing damaging processes and activities and, lastly, regional andinternational frameworks for cooperation.

The book complements the recent work of scientists and economists bydescribing how laws and institutions can work for (or against) wetlandconservation and wise use. Each chapter makes the link betweeninternational legal obligations and national or local mechanisms fordelivering implementation. Drawing on national practice around theworld, the book illustrates how different legal approaches and techniquescan be adapted to widely-varying national conditions and capabilities. Keycomponents for legal and institutional frameworks suited to the challengeof wise use implementation are set out in the conclusion.

Published in 1999 by the World Conservation Union (IUCN) and availablefrom:

IUCN Publications Services Unit219c Huntingdon Road, Cambridge CB3 0DL, United KingdomE-mail: [email protected] site: http://www.iucn.orgEnd Box

3. The review process can help Parties to take stock of how existing lawsand institutions contribute to or work against wetland conservationand wise use. This should contribute to a more rationalised approachto their achievement. The review has two main objectives:

to identify legal and institutional measures which constrainwetland conservation and wise use; and

to support the development of positive legal and institutionalmeasures for wetland conservation and wise use.

4. The information collected for the review should provide useful data for

National Reports by Parties to the COP5. Wherever possible, the reviewshould be repeated at regular intervals to ensure that laws andinstitutions remain compatible with the wise use obligation establishedunder Article 3.1 of the Convention.

5. The review could have two basic phases carried out in a wayappropriate to the circumstances of the Party concerned: (1) apreparatory phase (see Section 2.0) and (2) an implementation phase(see Section 3.0).

5 Action 2.1.1 of the Ramsar Strategic Plan calls on Parties to indicate in their reportshow the Wise Use Guidelines are applied.


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2.0 Preparing for the legal and institutional review

2.1 Establish political and institutional responsibility for thereview

6. The COP has formally endorsed the use of legal and institutionalreviews as an integral part of wise use planning. Consequently, Partiesshould give high-level political support to preparing, implementing andacting upon the review.

7. National Wetland Committees, inter-ministerial commissions or othercoordinating bodies6 for wetland issues are particularly well placed totake responsibility for and supervise the review, as well as forconsidering subsequent recommendations by the review team (seeSection 2.2). Where such a body does not exist, Parties might considerestablishing an inter-agency steering committee to ensure that allrelevant governmental sectors are represented during the review.

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Case Study 1Wetland related legislation and institutions in Peru

Nearly 90% of Perus environmental legislation has been approved orpromulgated in the past eight years. Over this period, attitudes to themanagement of natural resources have changed significantly,

demonstrating the growing interest in environmental issues at every levelin the country. More specifically, certain concrete developments can behighlighted: the term wetlands is regularly used at political andlegislative levels; the country has a National Strategy on Wetlandsapproved by the State; and alternative mechanisms to the creation ofprotected natural areas are being implemented, offering additional legalprotection to wetlands in the country.

Despite these achievements in the political and legislative fields, thereare important institutional weaknesses which prevent action being takenin threatened wetlands. Environmental issues in Peru are organizedsectorally with responsibilities assigned to various state ministries,including the Natural Resources Institute (INRENA), the Ministry of Energyand Mining, and the Ministry of Fishery, and activities such as tourism andeducation are each led by a Ministry. For wetlands which have beendeclared protected natural areas, although administration has beenentrusted to a single institution, INRENA, it is only responsible for theapproval of planning and authorisation of certain activities while theother ministries maintain their responsibilities on resources and activities.

6 The establishment of such bodies is recommended in section I.1.2,Additionalguidance on wise use.

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Although there is a coordinating body, the National Council on theEnvironment (CONAM), which has mechanisms to coordinate theenvironmental management activities of the above Ministries and toreconcile possible conflicts of interest which may arise in specific cases,

these mechanisms are not yet being used.

In the case of regional governments and municipalities, responsibility forwetlands management is minimal, as they do not have directresponsibility for natural resources. Essentially this remains theresponsibility of the central government.

In 1992, the National Program of Conservation and SustainableDevelopment of Wetlands - Peru was constituted. As a coalition ofgovernmental and non-governmental organizations (includinginternational NGOs), which work jointly for the conservation and

sustainable development of wetlands, it has proved to be an effectiveinstrument for wetland conservation. A major achievement has been thedevelopment of a National Strategy for the Conservation of Wetlands. TheStrategy has been successful in sanctioning legal planning tools forwetlands and in having wetlands recognized at the institutional level as asingle ecosystem which has specific regulations governing its use. It hasidentified the need for a comprehensive legal and institutional review,and has played a key role in re-orienting discussions at all levels aboutwetlands towards the benefits of wetlands to local people.

Since the approval of the Strategy there have been several national lawspassed which are of relevance to wetlands, regulating the exploitation ofnatural resources, the management and sustainable use of protectedareas (including the countrys seven Ramsar sites), the conservation andsustainable use of biological diversity and the protection of wetlandslocated in jungle zones.

However, there still remain many obstacles to effective management andwise use of wetlands:

an exhaustive assessment of both the legal and physical situation

of Perus wetlands is essential to give a sound knowledge base; at the level of management of wetlands, there is a need to

address the continued deterioration and misuse of some wetlandsthrough industrial and other inappropriate activities. The lack ofreal enforcement of specific wetland regulations continues to be aproblem;

national laws ought to recognize wetlands as a separate entity,ensure their legal protection and define policies required toimplement Articles 3, 4 and 5 of the Ramsar Convention;

there is a need to actively involve all stakeholders, including local

people, in the development of national laws relating to wetlands.

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Full text of the case study on Reviewing laws and institutions relevant towetlands in Peru, by Pedro Solano, Sociedad Peruana de DerechoAmbiental, is available from the Ramsar Secretariats Web site:http://ramsar.org/wurc_index.htm.

Editors note: This text has not been updated since the first edition.End Box

8. In Parties with a federal or decentralised system of government,political responsibility for the review will depend on which tier ofgovernment has jurisdiction over wetlands and wetland resources(including migratory species). In several countries, jurisdiction isdivided between national and subnational authorities; in others, it isalmost completely devolved to subnational level; in others, localauthorities have extensive powers over wetland management and

decision-making.

9. In Parties where jurisdiction over wetlands is devolved to subnationallevel, it may be appropriate for the competent administrativeauthorities at that level to conduct their own review. However, toensure consistency with applicable national policies and laws, it wouldbe useful to harmonise nationally the review procedures.

2.2 Establish the review team

10.The review team has operational responsibility for the review andreports to the institution designated under Section 2.1. An effectiveteam is likely to be characterised by commitment, objectivity andbroad representation and expertise.

11.Membership of the team will depend on each Partys particularcircumstances and capacity. In some countries, an appropriate teammay already have been established to develop a national wetlandpolicy or be provided by an established cross-sectoralRamsar/wetlands committee. While the team should include at leastone person with legal expertise, other disciplines might be considered,

including:

Planners and economists; Technical representation from hydrologists, biologists, ecologists

and other relevant disciplines; and Representatives of the private sector and the general public,

specifically including indigenous and local communities7.

7

Cf. paragraph 12, Guidelines for establishing and strengthening localcommunities and indigenous peoples participation in the management of wetlands(Resolution VII.8).

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Team members should have detailed knowledge of how the countryslaws and institutions, including those which are customary, operateboth in theory and in practice.

2.3 Define the review methodology

12. The review team is responsible for defining the methodology for thereview, in other words, how each stage of the review will beundertaken and within what time-frame; for assigning specificresponsibilities to team members; and for determining the scope ofthe review.

13. During this preparatory phase, it is important that members of thereview team reach a common understanding for the purposes of thereview of what is meant by wetland in the country concerned8.

14. Figure 1 gives one example of a possible methodology for carryingout the review. It depicts the review as an ongoing (cyclical) processwith three basic stages: (1) establishing a knowledge base ofrelevant laws and institutions; (2) evaluating the knowledge baseestablished; and (3) recommending necessary legal and institutionalchanges to promote wetland conservation and wise use.

15. Parties may choose to begin the review at different stages within thiscycle, depending upon their national situation. For example, somecountries already have an established scientific, legal andinstitutional knowledge base from developing National WetlandPolicies or implementing cross-sectoral planning obligations pursuantto the Convention on Biological Diversity (1992) or the Convention toCombat Desertification (1994). Other countries may recently havecarried out a review for the purpose of codifying legislation ordrafting modern environmental statutes.

3.0 Carrying out the legal and institutional review

16. Once the preparatory phase has been completed, the

review team can carry out the legal and institutional review usingits chosen methodology. The following sections describe the threestages of the review process in greater detail.

3.1 Establish a knowledge base of relevant legal andinstitutional measures

8 Some countries do not have an agreed legal definition of wetlands.The Conventions broad definition (Article 2.1). applies to inland and coastalwetlands: areas of marsh, fen, peatland or water, whether natural or artificial,

permanent or temporary, with water that is static or flowing, fresh, brackish or salt,including areas of marine water the depth of which at low tide does not exceed sixmetres.

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17. A key responsibility of the review team is to create acomprehensive collection or knowledge base of the countrys lawand institutional measures which are relevant to wetlands. Thecontent of the knowledge base will depend on national

circumstances, and therefore each countrys knowledge base willbe unique.

18. Many different sources of law can contribute to creatingthe knowledge base. In general, these govern the procedures,decisions and actions of public bodies and the rights and duties ofthe private sector, communities and individuals (see Figure 2 fora non-exhaustive list of possible sources). At the more formal endof the spectrum, statutes and implementing regulations providethe legal basis for regulatory powers, planning rules, publicexpenditures, taxation and economic measures for projects or

activities which may positively or negatively affect wetlands. Atthe other end of the spectrum, customary laws may be the mainsource of law governing the rights and duties of indigenous andlocal communities with regard to wetland resources.

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Case Study 2

Reviewing wetland legislation as a product ofdeveloping wetland policy

the Australian experience

Australia is a federation of eight provincial jurisdictions with effectivelythree layers of government: the Commonwealth Government (equivalentto a federal government), eight provincial (State/Territory) governmentsand over 900 local authorities.

The provincial governments have the principal legislative responsibilityfor natural resource management while local authorities are responsiblefor the provision of local services, collection of associated local taxes and

land zoning, especially in urban areas. The Commonwealth Governmenthas relatively limited legislative powers, but it seeks to ensure that thenational effort directed at conservation and sustainable use of naturalresources is achieved through coordination, agreed national goals incertain areas, and, in some cases, financial incentives to the provincialgovernments, local authorities or private landholders.

Australia began developing its Commonwealth Wetland Policy in 1995,with a consultant engaged to prepare a Discussion Paper as the first step.

This included a broad ranging review of all relevant legislation, strategiesand policies of the Commonwealth Government as well as any

programmatic action which could potentially impact upon wetlands, the

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whole process providing a comprehensive framework for meeting RamsarConvention obligations.

The Australian experience can provide some useful lessons learned to

other Contracting Parties embarking on the development of a NationalWetland Policy and the comprehensive review process which this ought toinclude. The Australian review process covered such areas as:

the management of Commonwealth areas which include somesignificant wetlands;wetland research and monitoring;all relevant legislation and policy instruments;the expenditures under all relevant Commonwealth fundingprogrammes, including those to provincial and local governments

and the community;international trade in wetland-derived products;a review of economic policy instruments which could be having either positive or

negative impacts on wetlands;

cooperative relations with the provincial and local administrations;foreign investment in Australia;Australias international aid programme.

Lessons learned through the process include:

The preparation of a detailed Discussion Paper, by anindependent consultant, was invaluable in identifying the range oflegislation, policies, strategies and programmes which had to betaken into consideration.

The establishment of two parallel advisory committees, one cross-sectoral, one government-based, to guide the development of thePolicy allowed for expert input from stakeholders and helped toidentify a wider range of legislation, policies, strategies andprogrammes to be considered.

In reviewing government legislation, policies and strategies, start

from the premise that ALL will have some impact on wetlands.Experience has shown that seemingly unrelated legislation (suchas that related to road construction, for example) may have amajor impact on wetland areas.

It is very important that governments make use of financial tools,such as taxation, which can be powerful weapons for successfullyimplementing the Ramsar Convention.

For developed countries, it is important not to overlook theirdevelopment aid programme: funding actions in another memberstate which destroy wetlands is contrary to the intent of the

Convention.

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Full text of the case study on Reviewing laws and institutions relevant towetlands in Australia, by Bill Phillips, formerly with Environment Australiaand the Ramsar Secretariat, is available from the Secretariats Web site:http://ramsar.org/wurc_index.htm.


19. Information to establish the knowledge base may bereadily available to the review team or may need to becommissioned. Useful sources might include reports, studies,policy documents and inventories that have been developed aspart of a national wetland or broader environmental policy-making process. Other useful information may have beenproduced at local level for the purpose of a wetland management

plan.

20. When establishing a knowledge base, it may be useful conceptuallyto divide relevant sources of law into two categories: (1) Wetland-related legal and institutional measures (see Section 3.1.1) and (2)Sectoral legal and institutional measures which directly or indirectlyaffect wetlands (see Section 3.1.2).

3.1.1 Identify wetland-related legal andinstitutional measures

21. Wetland-related legal and institutional measures arethose which directly promote conservation and wise use ofwetlands, including those directly supporting the implementationof the Ramsar Convention. All Parties have some form ofenvironmental legislation and administration which is or can beused to support wetland conservation and wise use, althoughrelatively few have enacted special wetland laws. Depending onthe country, conservation and wise use measures may becontained in national and subnational laws and regulations onenvironmental protection, nature conservation, protected areas,

environmental impact assessment and audits, land-use planning,coastal management, water resource management or pollutioncontrol. At the local level, customary laws and community-basedinstitutions may be relevant.

22. For purposes of subsequent analysis, it may be helpful toorganize this component of the knowledge base according to thefour categories set out in theAdditional guidance on wise use: (1)non-site-specific measures; (2) site-specific measures; (3)

jurisdictional and institutional coordination; and (4) mechanismsfor transboundary and international cooperation (see Figure 2). A

non-exhaustive checklist of possible legal and institutionalmeasures could include:

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a) the legal instrument adopted to incorporate Ramsar intodomestic law;b) non-site specific or generally-applicable legal and

institutional measures which promote wetland conservationand wise use (regulatory and non-regulatory measures)and/or confer special protective status on wetlands;c) legal and institutional measures, including site-specificcustomary laws which promote the conservation and wiseuse of wetlands, and customary institutions which supportthis;d) legal and institutional measures for integratedmanagement of river basins, catchments, watersheds orcoastal areas; international agreements for shared wetlands,watercourses or wetland flora and fauna; and

e) relevant legal and institutional measures adoptedpursuant to other treaties or supra-national instruments.

23. The review team should identify which institutions andagencies have functional responsibility for wetland conservationand wise use, including transboundary wetland-related issues. InParties with a federal or decentralised system of government, theteam should clarify how jurisdiction over wetlands and wetlandproducts is divided between national and subnational governmentand whether there is any mechanism for coordination betweenthe different levels. (See Case Study 3.)

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Case Study 3

Legal and institutional reform in Uganda

In 1986, it was recognized that Uganda faced a number of seriousproblems in wetland conservation through ineffective laws andinfrastructure for natural resource management. This included: drainageof wetlands by wealthy farmers; introduction of rice growing on a largescale in the 1960s which led to clearing of wetlands; pollution, especiallyfrom copper mining activities; over-harvesting, particularly of forested,seasonal wetlands, as well as extensive exploitation of clays fromwetlands for brick-making near major towns; reclamation for industrialdevelopments near major centres; and development of humansettlements in swampy areas because ofineffective law enforcement.

A stop-gap measure, which banned large scale drainage, was introducedin 1986, and this was followed by a process of wide-ranging legal andinstitutional reform beginning in 1989 and continuing through the 1990s.

The reform measures included:

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The establishment of the National Wetlands ConservationProgramme (NWCP) in 1989, charged with the formulation of aNational Wetlands Policy which was adopted in 1995.

Changes in environmental policy with the development of a

National Environment Action Plan (NEAP), which resulted in theadoption of a National Environment Management Policy (NEMP)and a National Environment Statute in 1994 and 1995respectively. During the formulation of the Management Policy, areview of laws and policies in fisheries, water resourcesmanagement, irrigation and traditional harvesting of wetlandproducts was carried out following consultations at district andnational levels. This created a useful knowledge base andrevealed some serious shortcomings in legislation relating to theconservation of wetlands.

Changes in the water sector with the adoption of a Water ActionPlan, a water policy and two new laws in 1995 and 1996. Changes in the wildlife sector with the adoption of the Uganda

Wildlife Policy in 1995 and enactment of the Uganda WildlifeStatute.

Changes beyond the natural resources sector which have had adirect influence on resource management including: constitutionalchanges requiring the state to protect all natural resources; localgovernment changes placing the responsibility for themanagement of wetlands in the hands of the Districts (1997); andinvestment promotion and protection changes in 1991, setting out

a list of incentives for local and foreign investors and requiringthem to protect the environment.

In the formulation of the NEMP, the principles contained in the NationalWetlands Policy were included so that the two policies were fullyintegrated. As a result of the two policies, the National EnvironmentStatute was enacted, which included several provisions with far-reachingeffects on the management of wetlands. The provisions prohibited manyactivities in wetlands, such as diversion, excavation, construction,drainage and reclamation, and introduction of alien species, without thewritten authorization of the National Environment Management Authority(NEMA). This authority was also empowered through the Statute, inconsultation with other agencies and district committees, to establishguidelines for sustainable wetland management, identify wetlands oflocal, national and international importance and declare selectedwetlands as protected areas. The provisions relating to wetlands stressedthe need for environmental impact assessment for activities anddevelopments in wetlands.

The Statute was essentially an enabling framework and was not intendedto answer all needs in the field of wetlands management: further

regulations will be required to apply the law on the ground. A process of

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consultation has already begun on the development of regulations onwetlands, lake shores and river banks.

Full text of the case study on The evolution of policy and legislation on

wetlands in Uganda, by John Ntambirweki, Makerere University, Uganda,is available from the Ramsar Secretariats Web site:http://ramsar.org/wurc_index.htm.


3.1.2 Identify sectoral legal and institutional measureswhich directly or indirectly affect wetlands(refer to section 3.0 of the Background Paper for more detailed

information)

24. The key step to identifying sectoral legal and institutionalmeasures which directly or indirectly affect wetlands is for thereview team to determine which processes and categories ofactivities9 contribute to the loss of wetland functions, values andbenefits within the country. To do this, the review team can useexisting scientific and policy reports, studies and inventories todetermine the main threats to wetlands in the country concerned.Where these are not available the information may need to becommissioned.

25. Processes which modify the natural properties ofwetlands may be broadly grouped into four categories:

a) loss or degradation of wetland area and landscape;b) changes in the water regime (e.g., velocity, volume,seasonal flows, groundwater);c) changes in water quality (e.g., pollution, eutrophication,sedimentation); andd) overexploitation or disturbance of wetlands and wetlandproducts.

Processes of this kind are generated by human activities both insideand outside wetlands. Some types of human activity (e.g., drainage,pollution or urban encroachment) almost always generate processesdamaging to wetlands, whether individually or on a cumulative basis.Other types of activity (e.g., fishing, agriculture or ecotourism) maybe consistent with wise use within certain limits, but can generatedamaging processes if they exceed the carrying capacity of thewater system, coastal zone or wetland concerned.

9

Note that the Convention on Biological Diversity requires Parties toidentify and regulate or manage processes and categories of activities whichadversely affect biological diversity (Article 7).

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{See also Handbook 12}

26. For purposes of subsequent analysis of this component of theknowledge base, the main processes associated with the loss and

degradation of public and private wetlands on national territory orbeyond national boundaries could be listed. Then, under eachheading, the sectors responsible for activities contributing to theparticular process could be listed along with the activitiesthemselves. Relevant sectors may include agriculture, forestry,fisheries, public health, territorial development, energy, industry,investment, mining, navigation, tourism, trade and transport (seeFigure 2). The information collected will provide a technicalfoundation from which the team can then identify, correlate andsubsequently evaluate the legal and institutional basis for theparticular activity identified.

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Case Study 4Contrasting approaches to the implementation of the

Ramsar Conventionin the Wadden Sea countries

The Wadden Sea is a marine wetland area shared by Denmark, Germanyand the Netherlands. These countries, which ratified the RamsarConvention in 1978, 1976 and 1980 respectively, present contrasting

approaches to the implementation of the Ramsar Convention. While theNetherlands has focussed more on implementing the wise use conceptand the development of policies to achieve this, Denmark and Germanyhave concentrated more on the listing of sites and development ofassociated institutional and legislative tools.

In implementing the Ramsar Convention, the Netherlands hasdesignated Ramsar sites which are already subject to a conservationregime (and this is also the case in Germany). The wise use concept hasplayed a major role in wetlands management and policy in theNetherlands and the establishment of a coherent national policy has beenidentified as a key issue.

The review of the implementation of the wise use concept is consideredan ongoing process. The 1996 National Report to the 6th COP of theConvention, for example, was primarily devoted to the wise use ofwetlands and a number of operational evaluation criteria, formulated onthe basis of the wise use guidelines, to evaluate Dutch policies on thewise use of wetlands. The criteria were divided into three main categorieswhich covered a number of questions:

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Thus, while the legal question has always played a major role inDenmark, the application of instruments has not been confined to law inthe traditional sense but has included planning as one of the mostimportant elements.

Full text of the case study on Wetlands-related legislation and institutionsin the Wadden Sea countries, by Jens Enemark, Common Wadden SeaSecretariat, Germany, is available from the Ramsar Secretariatss Website: http://ramsar.org/wurc_index.htm.


3.2 Evaluate the knowledge base

27. Once the review team has established a knowledge base (seeSection 3.1), it can evaluate the legal and institutional measuresidentified in its two components. The key steps in the evaluationphase are to:

a) assess the effectiveness of existing wetland-related legal andinstitutional measures in promoting wetland conservation andwise use; and

b) analyse how sectoral legal and institutional measures directly orindirectly affect wetlands.

The evaluation should help the team to determine the legal andinstitutional constraints on wetland conservation and wise use in thecountry. This determination is necessary before the team candevelop recommendations for necessary legal or institutionalchanges (see Section 3.3 below).

28. The team may find it helpful to design a framework for the objectiveanalysis of the legal and institutional measures identified. This couldparallel and build upon the organizational frameworks suggested forthe two components of the knowledge base in Sections 3.1.1 and

3.1.2.

29. While undertaking its evaluation, the review team needs to bemindful that laws and institutions have traditionally evolved inpiecemeal fashion, with little cross-sectoral coordination and fewreferences to wetlands. Therefore, it should be on the lookout forconflicts between wetland-related and sectoral legal and institutionalmeasures which make it difficult to achieve wise use throughout acountry, to implement cost-effective wetland policies, to regulate ormanage potentially damaging activities, or to build long-termpartnerships with wetland owners, users, local communities and the

private sector.

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30. As part of its evaluation, the review team should also be on thelookout for other legal and institutional measures which constrainefforts in achieving wetland conservation and wise use. These couldinclude:

a) conflicting sectoral policies, laws, taxes and institutionalpriorities;

b) weak or incomplete laws applicable to wetlands (e.g., exclusionof coastal wetlands, no legal safeguards for water supply ofappropriate quality and quantity);

c) land tenure and resource use regimes which undermine wiseuse;

d) poor design or operation of wetland administrative authorities;e) jurisdictional constraints on ecosystem management of river

basins and coastal areas;

f) absence of effective monitoring procedures, enforcement andremedies; and

g) lack of provisions for compensation for lost wetland habitats orfunctions.

Gaps, overlaps and inconsistencies are all relevant to the evaluationand they should be described in the review.

3.2.1 Assess the effectiveness of existing wetland-related legaland institutional measures in promoting wetlandconservation and wise use

31. The review team needs to assess the effectiveness of existingwetland-related legal and institutional measures for promotingwetland conservation and wise use. Although conservation and wiseuse can be promoted in many ways, the Conference of the Partieshas emphasised the fundamental importance of appropriate legal,policy, institutional and organizational measures for this purpose.

The review team could use the Wise Use Guidelines as a startingpoint when evaluating the countrys existing legal and institutionalmeasures. It could also develop indicators of effectiveness adapted

to national circumstances. A non-exhaustive list of issues forconsideration is set out in paragraphs 32-35 below.

32. Possible considerations related to non-site specific measures couldinclude:

a) Is the legal definition of wetlands or the scope of wetland-related legal and institutional measures sufficiently broad toapply to all categories of wetland covered by the RamsarConvention?

b) Is it possible under land-use planning legislation (national,

provincial or local) to confer protective status on wetlands andto limit urban, industrial and recreational development which

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might adversely affect wetland functions, values and benefits,including in a transboundary context?

c) Do principles, standards and techniques applicable to socio-economic activities, including environmental impact assessment

rules, support the maintenance of wetland functions, values andbenefits and incorporate a precautionary approach?d) Is there a legal basis to encourage positive conservation

measures and stewardship by wetland owners, users and non-governmental organizations (e.g., contracts, conservationeasements or tax provisions)?

e) Where development involves wetland loss or degradation, isthere a legal requirement to make monetary or othercompensation, consistent with the polluter pays principle?

f) Are civil or administrative law remedies available to interestedparties where wetlands are unlawfully destroyed or damaged?

g) Where wetland loss or degradation constitutes a criminaloffence, are enforcement procedures adequate and arepenalties set at a meaningful level?

Start Box

Case Study 5

The Canadian experience

As a federal state with ten provinces and two territorial governments,

Canada has a diverse suite of legal mechanisms available for conservingwetlands. At the federal level, legislative power over wetlands seems bestdescribed as having unfulfilled potential. The general conclusion of thisand other studies is that more legal tools are not required to conservewetlands; rather, there is a need to strengthen and use the tools alreadyavailable at this level. (The full case study, see below, documents thestrengths and weaknesses of six key statutes).

However, the authority over wetlands lies mainly with the provinces, byvirtue of their ownership of the natural resources that lie within theirboundaries, and the majority of statutes that influence wetlands inCanada have been enacted at this level. A range of statutes exists ineach province and territory related to land use planning, protected areadesignation, wildlife management, water management, sustainable use ofresources, and private land conservation. Local wetland managers haveidentified 25 provincial and territorial statutes that they considered to bethe most valuable tools for wetland conservation.

This legal route will continue to provide a backdrop to the driving force ofwetland conservation and restoration in Canada today - voluntarystewardship of private lands. The last two decades have also seen the

establishment of a legal foundation for stewardship activities in Canada.The federal government amended the Income Tax Actin 1996 to facilitate

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donation of ecologically sensitive lands, easements, covenants andservitudes to municipal, Crown and non-government environmentalorganizations. Provinces are also adopting voluntary, non-regulatorywetland conservation programmes through conservation legislation which

permits the establishment of stewardship programmes, conservationeasements and conservation covenants. At the very local level, municipalplanning acts are being used more effectively to promote stewardshipprogrammes. Finally, at the international level, Canada has entered into atrilateral agreement with the USA and Mexico resulting in the NorthAmerican Waterfowl Management Plan, which focuses on the reversal ormodification of activities that destroy or degrade waterbird habitat(primarily wetlands). This Plan has been a success through innovativesupport and funding of voluntary conservation projects.

Legislation also seems to be evolving in another important way: new and

revised legislation at federal and provincial levels often make moreexplicit reference to wetlands, recognizing them as important ecosystemsworthy of special attention.

About one-third of Canadas 153 million hectares of wetlands are undersome form of environmental regulation. As evidence of the newvoluntary, policy-driven approach currently dominating wetlandconservation, about three quarters of the countrys wetlands are nowcovered under non-regulatory wetland conservation and managementprogrammes and policies established by government and industrysectors.

Full text of the case study on Regulatory and non-regulatory approachesfor wetland conservation in Canada, by Clayton Rubec, Canadian WildlifeService, and Pauline Lynch-Stewart, Lynch-Stewart & Associates, Canada,is available from the Ramsar Secretariats Web site:http://ramsar.org/wurc_index.htm.


33. Site-specific considerations could include:

a) Is the legal status conferred on Ramsar sites and wetland naturereserves sufficient to ensure their conservation and wise use?

b) Is it possible legally and institutionally to designate and managecoastal protected wetlands, even though they may includeterrestrial and marine areas?

c) Where wetlands are designated as protected areas, doeslegislation authorise continued access and use by indigenousand local communities where this is consistent with theconservation and wise use of the particular site?

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d) Is legislation supportive of customary laws, practices, tenuresystems and institutions of indigenous and local communities,which promote sustainable use of wetland resources?


e) Do wetland users, including indigenous and local communitiesand other stakeholders, have the right to information,representation and participation in site management?

f) Does legislation support the preparation and implementation ofwetland management plans?

{See also Handbook 8}g) Is there a legal requirement for wetland management bodies to

be consulted about potentially damaging external activities?

34. Considerations related to jurisdictional and institutional coordinationcould include:

a) Do procedures exist for horizontal (cross-sectoral) coordinationbetween wetland administrative authorities and relevantsectoral departments and agencies?

b) Do procedures exist for vertical coordination on conservationand wise use issues between different tiers of government,particularly in countries with federal or decentralised systems?

c) What, if any, steps have been taken to promote consistencybetween sectoral plans, policies and programmes andobligations related to wise (sustainable) use?

d) What legal and institutional measures have been taken tocoordinate and integrate management of inland water systems(river basins, catchments, watersheds) and coastal areas?

{See also Handbook 4}e) Have legal and institutional measures been taken to involve

stakeholders in wetland policy-making and wise use planning?f) Do national or subnational administrative authorities have

adequate powers and human, technical and financial resourcesto implement wetland conservation and wise use programmes?

35. Possible transboundary and international cooperation considerations

include:


a) Is there a legal and institutional basis for coordinatedmanagement of shared wetlands, international watercoursesor wetland flora and fauna with one or more neighbouringcountries? If so, could institutional coordination and jointmanagement programmes be made more effective orextended in the future?

b) Have steps been taken under other international environmental

agreements to develop bilateral or multilateral cooperation? If

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so, could these be used as a basis for strengthening coordinatedinternational action on wetland and water resource issues?

c) Are procedures in place to ensure that foreign and domesticinvestment and development cooperation/aid programmes do

not support activities which could damage wetlands and arefully compatible with the wise use obligation?

Start BoxAdditional information

A Guide to Undertaking Biodiversity Legal andInstitutional Profiles

By Lyle Glowka in collaboration with Clare Shine, Orlando Rey Santos,Mohiuddin Farooque and Lothar Gndling.

This Guide is the culmination of over two years of work by the IUCNEnvironmental Law Centre. It combines lessons learned in the field withdesk-based research and comparative analysis of existing legal andinstitutional reviews and planning documents. The primary aim of theguide is two-fold. First, it is designed to emphasize the central importanceof reviewing laws and institutions in national or subnational biodiversityplanning processes. Second, it is designed as a source-book of practicalhow-to advice to planners and lawyers, while providing a generalunderstanding of the scope of undertaking a biodiversity legal andinstitutional profile.

The text guides the reader through the various stages of a reviewincluding: preparing for the legal and institutional profile; establishingand evaluating the knowledge base; identifying and evaluatingbiodiversity-related legal and institutional measures; and recommendinglegal and institutional changes.

Published in 1998 by the World Conservation Union (IUCN) and availablefrom:

IUCN Publications Services Unit219c Huntingdon Road, Cambridge CB3 0DL, United KingdomE-mail: [email protected] site: http://www.iucn.org[End Box]

3.2.2 Analyse how sectoral legal and institutional measuresdirectly or indirectly affect wetlands

36. Sectoral legal and institutional measures that supportprocesses and categories of activities identified under Section3.1.2 will undermine effective implementation of the Ramsar

obligations. After identifying the processes and categories ofactivities threatening the countrys wetlands and their legal and

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institutional basis, the review team should identify how theseencourage the loss of wetlands.

37. The review team could be guided by the following

questions:

a) Which provisions work directly against wise use (e.g., mandatorywetland drainage or financial and tax incentives for conversion)?

b) Which measures indirectly support wetland loss and degradationincluding through perverse incentives such as subsidies todevelop coastal belts or floodplains?

c) Are wetland users, developers, and polluters obliged to meetthe costs of wetland loss or degradation or to makecompensation?

d) Are activities which could directly or indirectly affect wetlands

subject to environmental impact assessment and are wetlandconsiderations factored into the assessment process?

e) Do laws and regulations (including those on EIA) exempt certaincategories of activities which adversely affect wetlands andwater systems?

f) Are effective monitoring procedures, enforcement and remediesavailable?

3.3Recommend legal and institutional changes necessary tosupport wetland conservation and wise use

(refer to section 4.0 of the Background Paper for more detailedinformation)

38. Once the review team has identified strengths and weaknesses ofthe countrys legal and institutional framework, it may consider atleast three types of recommendation as outputs of the reviewprocess.

39. First, and as a priority, the review team should recommend ways inwhich legal and institutional measures which contribute to the loss ofwetlands can be better harmonised with conservation and wise use

objectives. Or, if this is not possible, the review team shouldrecommend the removal of these legal and institutional measures.Where this is impracticable in the short term, all possible stepsshould be taken to reduce progressively the impact of suchmeasures.

40. Second, the review team should identify and recommend ways inwhich existing legal and institutional measures can be implementedmore effectively without the need for new laws or regulations.

41. Third, the review team should identify and prioritise areas where

laws and institutions should be upgraded or consolidated or wherenew legislative or economic instruments should be developed.

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Start Box

Case Study 6

Rationalising laws and institutions in Costa Rica througha national Wetlands Law

Costa Rica has developed a National Wetland Conservation Strategy, asignificant step towards meeting its obligations under the RamsarConvention. The Strategy, with its goal of achieving wise use of wetlandresources, urges the protection and wise use of wetland ecosystemsthrough the production of appropriate technical, legal and administrativetools for the many groups concerned with wetland conservation. Thesegroups include governmental organizations, local governments, NGOs,

private sector and local users.

In developing the Strategy, considerable work had to be done indocumenting wetland legislation and policies in an effort to rationalisethe confusing array of institutions and legislative instruments dealingwith wetland conservation. It became clear during this process that theexisting legislation, along with the number of authorities which had someresponsibilities relating to wetlands, resulted in confusion and overlap ofadministrative authority. This was considered a serious obstacle toapplying the wise use principles of the Convention and highlighted theneed for a new Wetlands Law to regulate the use of wetland ecosystems.

The evolution of the Wetlands Bill is summarized below. The six stepsreflect the importance of the development of the National Strategy andits review and analysis of legislation, in the development of this new law.

Step 1: In developing the National Wetland Conservation Strategy,the Ministry of Environment and Energy (MINAE) carried out a seriesof consultations with national and international specialists to preparea package of basic information pertaining to wetlands and their wiseuse.

Step 2: During this process, all legislation and policies related towetlands were compiled, as well as international agreements ratifiedby this country that had a direct relationship to conservation and useof wetlands.

Step 3: The summarised legislation and policies were analysed anda Guide to Procedures for the Management of Wetlands in Costa Ricawas published. The Guide presents the most relevant legislation andprocedures for the conservation and wise use of wetlands, as well asa concise analysis of experiences in the management of wetlands.

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Step 4: With the information obtained in steps 1 through 3 the needfor a Wetlands Law was identified and a multidisciplinary Commissioncharged with initiating this process was created. The Commissionincluded representatives from various ministries (including MINAE) as

well as experts in wetland ecology, environmental law, forestryengineers, sociologists and economists. After a series of meetings,the Commission wrote the first draft of the Wetlands Bill.

Step 5 Through a series of workshops, the first draft was presentedto the different sectors of society which had been involved in thedevelopment of the National Strategy and further refined. The drafttext was also mailed to different governmental organizations, privateenterprises, government employees and international experts inorder to receive their comments and observations.

Step 6: After 11 re-drafts of the Bill, reflecting a serious attempt toinvolve all sectors of society in the drafting process and produce aconsensus document, the final draft was ready for presentation tothe Legislative Assembly.

The Bill proposes that MINAE and SINAC (the National System of Areas ofConservation, a body within MINAE) be responsible for the administrationand the conservation and wise use of the wetlands within the continental-insular area of Costa Rica and within natural protected areas. They willalso be charged with the responsibility of coordinating the managementand protection of wetlands with other institutions.

The new Wetlands Law should help to resolve some of the problemsidentified during the development of Costa Ricas National WetlandConservation Strategy.

Full text of the case study on Legal aspects of the conservation and wiseuse of wetlands in Costa Rica, by Grethel Aguilar, IUCN- The WorldConservation Union, Switzerland, is available from the RamsarSecretariats Web site: http://ramsar.org/wurc_index.htm.

Editors note: This text has not been updated since the first edition.

Case Study 7

The way forward in securing the conservation and wiseuse of Indias wetlands

A thorough review of legal and institutional issues has not beenundertaken in India for a number of reasons: (1) the lack of resources toaddress major wetland issues and the lack of accurate scientific

information on wetlands; (2) the difficulties facing government agenciesbecause of the vast number of multiple users of wetlands, the diverse

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economic interests attached to many wetland ecosystems, as well as thecomplications associated with the considerable diversity of the wetlandsthemselves; and (3) the plethora of laws and institutions which havesome bearing on wetlands which leads to confusion and overlapping

jurisdiction. Amending these laws to attain the objective of wise use or toset in place a comprehensive national wetland law would be a formidabletask.

The existing body of laws applicable to wetlands, within the federalstructure of the Government of India, fall into four categories: centrallaws, state laws, municipal laws and customary laws. Significantly, at thecentral level, wetlands do not have a separate legal definition or legalentity under existing environmental laws.

While the existing framework of laws would seem to offer adequate

safeguards and a legal basis for wetland conservation and wise use, thereare some obvious loopholes in the laws which are exploited by someinterest groups. In addition there is a general non-compliance with, andviolation of, existing laws that deal with natural ecosystems such aswetlands. The numerous agencies (government as well as private)involved in decision making related to wetlands make implementation ofexisting legal provisions all the more difficult to apply.

The need to review legal and institutional issues and consider reform hasbeen highlighted through the Indian Judiciary, which has recentlyeffectively paved the way for environmental law reform: in some hardfought environmental cases, both the High Court and the Supreme Courthave given favourable judgements and orders upholding environmentallaws which are loosely worded and vague. A tightening of these laws isclearly essential.

Some specific recommendations for achieving law reform for sustainabledevelopment and environmental and social justice include:

Conventional protected area management and wildlife law maynot be completely suitable or adequate for achieving the wise use

obligation of the Ramsar Convention. For example, the NationalWildlife Protection Act, while ensuring strict protection of wetlandswithin protected areas, prohibits certain human activities suchas grazing and this can lead to unwanted changes in ecologicalcharacter of the ecosystem and make wise use of the wetlandimpossible. There is a need for a systematic study of the legalsystem and the institutions that would be involved in wetlandmanagement in the country. This study would need to reflect aholistic perspective of wetland management and would need togo beyond action taken by government agencies anddepartments and look at local and customary practices of wiseuse, reviving and supporting local institutions that regulate thesepractices.

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A National Wetland Policy for India would need to suggest broadguidelines for affirmative action for wetland conservation andwise use. However, such a policy must reflect the importance of

wise use of wetlands by communities and must provide ablueprint for initiating collaborative wetland management planswhich could be further modified and adapted by local users andlocal institutions.

The Environment (Protection) Act, 1986, can be effectively used tophase out certain unsound practices and ensure safeguards forthreatened wetlands. It would be worthwhile identifyingthreatened wetlands as ecologically sensitive areas under theexisting Act and regulating and prohibiting certain ecologically

harmful industries, operations and processes in such wetlands.

Lastly, any review of legal and institutional issues related towetlands and their management would be incomplete without astudy of local and customary laws for wetlands as well as wise usepractices in different regions in the country. This could beundertaken by independent NGOs and experts. This study couldalso highlight the conflicts in these cases and identify the processof conflict resolution and the agencies involved.

Full text of the case study on Reviewing laws and institutions relevant towetlands in India, by Devaki Panini, WWF (World Wide Fund for Nature) -India, is available from the Ramsar Secretariats Web site:http://ramsar.org/wurc_index.htm.


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31

Figure 1: Carrying out a legal and institutional review

Preparing for the review

Establish political and institutionalresponsibility (2.1)

Establish review team (2.2)Agree work planAssign responsibilities

Define review methodology (2.3) Set scope of review Agree on definition of wetlands for

purposes of the review

Establish a knowledge base ofrelevant legal and

institutional measures Identify wetland-related legal

and institutional measures(3.1.1)

Identify sectoral legal andinstitutional measures whichdirectly or indirectly affectwetlands (3.1.2)

Evaluate the knowledge base

Assess the effectiveness of existingwetland-related legal and institutionalmeasures in promoting wetlandconservation and wise use (3.2.1)

Analyse how sectoral legal andinstitutional measures directly orindirectly affect wetlands (3.2.2)

Recommend necessary changes to supportwetland conservation and wise use

Remove legal and institutionalmeasures contributing towetlands loss (3.3)

Implement existing measuresmore effectively (3.3)

Prioritise areas where laws andinstitutions should be upgraded(3.3)

WIDER POLICY CONTEXT

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Figure 2: Establishing a knowledge base of relevant legal and institutionalmeasures

Identify wetland-relatedlegal and

institutional measures (3.1.1)

Non-site specific or generallyapplicable measures (e.g.,

integrated planning,environmental permitsystems, impact assessmentand audit procedures, habitatand species conservation,incentives)

Site-specific measures (e.g.,protected areas, site planning,participatory management)

Institutional coordinationbetween different levels ofgovernment and betweensectors

Identify sectoral legal andinstitutional measures

which directly or indirectlyaffect wetlands (3.1.2)

Natural resource management Management of water quality and

quantity Public health Energy generation Industry and mining Territorial development Tourism Trade controls on wetland

products Communications and transport,

including coastal and inland

navigation Forei n and domestic investment

Possible sources of law (3.1)

Obligations underinternational law

Relevant constitutionalprovisions

Primary legislation (statutes) Secondary (implementing)legislation

Common law (including caselaw)

Formal government policies

Municipal regulations Ministerial technical/planningguidelines

Rules on land tenure andresource use

Contracts and concessions

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Section II:

Reviewing laws and institutions to promote the

conservation and wise use of wetlands abackground paper

By Clare Shine, Barrister and Consultant in Environmental Law

(this paper forms part of a larger project on reviewing laws andinstitutions, coordinated and guided by Lyle Glowka, from which all the

materials in this Handbook have been produced)

Table of Contents1.0Introduction

2.0Ramsar, wise use and the law2.1 Legal commitments accepted by Contracting Parties2.2 Development of the wise use concept2.3 The purpose of a legal and institutional review2.4 Areas of complementarity with other environmental

agreements3.0Identifying legal and institutional measures which

constrain conservation andwise use3.1 Conflicting sectoral policies, laws, taxes and institutional

priorities3.2 Weak or incomplete laws applicable to wetlands3.3 Land tenure and resource use regimes which undermine

wise use3.4 Operational weakness of administrative authorities3.5 Jurisdictional constraints on river and coastal ecosystem

management4.0Developing legal and institutional measures to promote wiseuse

4.1 Non-site specific measures4.1.1 Planning of land use and water management4.1.2 Regulatory measures

4.1.3 Environmental impact assessment legislation4.1.4 Non-regulatory (voluntary) measures4.2 Site-specific measures4.3 Jurisdictional and institutional coordination4.4 Transboundary and international cooperation mechanisms

4.4.1 Watercourse agreements and other treaties4.4.2 International assistance programmes

5.0Conclusion6.0References

Note: the views expressed by the author of this paper do not necessarilyreflect the views of the Ramsar Secretariat and do not form part of the

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preceding Guidelines which were endorsed by the 7th Meeting of theConference of the Contracting Parties.

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1.0 Introduction(Note: paragraphs 1 and 2 of the original document now appear in the Foreword to thisHandbook)

Introduction

3. The Convention on Wetlands (Ramsar, Iran, 1971), the first treaty topromote the conservation of specific ecosystems, was concludedmany years before the emergence and international acceptance ofthe concept of sustainable development10. The wise use obligation ofthe Convention (Article 3.1) can therefore be considered as apioneering and ambitious objective for its time.

4. The Convention itself does not define wise use or set outsubstantive measures for its implementation, unlike the more

comprehensive approach used in most recent environmentalagreements. Possibly for this reason, the Ramsar Convention hastended to be popularly associated with site-specific conservationlinked to the List of Wetlands of International Importance.Implementation at domestic level has often focused on theconservation of listed wetlands and wetland reserves, lower prioritybeing given to non-site-specific measures for wise use or totransboundary cooperation on wetland management.

5. Ramsars institutions (Conference of the Parties (COP), Scientific andTechnical Review Panel, Bureau) have worked to redress thisimbalance and to assist Parties in implementing the wise useobligation. However, wise use is still far from being achieved on theground. The ecological character of 84% of listed Ramsar sites -which theoretically benefit from the greatest degree of protection - isactually or potentially under threat (Dugan and Jones 1992).Information on the coverage and conservation status of ordinary(unlisted) wetlands varies widely among different regions, but it isgenerally accepted that their loss or degradation is continuing at analarming rate around the world. This trend presents problems forglobal sustainable development, as wetlands are essential to the

functioning of inland water and coastal systems and to waterresource management (Acreman, Howard and Pirot 1996).

6. Appropriate legal and institutional frameworks are essentialcomponents of national and subnational policies to address wetlandloss and degradation. This paper, which provides backgroundinformation on the draft Guidelines for reviewing laws and

10 It was signed a year before the 1972 Stockholm Conference, 11 yearsbefore the adoption by the United Nations of the World Charter for Nature, and 21years before the adoption of the Convention on Biological Diversity and other

environmental instruments at the UNCED in Rio de Janeiro.[Note: the footnote numbers are continuous with Section I of this Handbook and donot therefore correspond to the numbers in the original document.]

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Institutions to promote the conservation and wise use ofwetlands, draws on experience round the world. The BackgroundPaper briefly considers the legal commitments accepted byContracting Parties, the role of a legal and institutional review andareas of complementarity with other international treaties. It then

identifies possible legal and institutional measures which constrainwise use and outlines some of the legal and institutional measuresthat can be used to support conservation and wise use at local,national and international level.

2.0 Ramsar, wise use and the law

2.1 Legal commitments accepted by Contracting Parties

7. Contracting Parties to Ramsar are bound by three main categories ofobligation:

Non-site-specific:To formulate and implement their planningso as to promote, as far as possible, the wise use of wetlands intheir territory (Article 3.1);

Site-specific:To designate one or more suitable wetlands ofinternational importance for inclusion in the List (Article 2), toformulate and implement their planning to promote theconservation of listed wetlands (Article 3.1) and to establishnature reserves on wetlands and provide adequately for theirwardening (Article 4.1);

International cooperation: To consult with other Parties aboutimplementing obligations arising from Ramsar in respect oftransboundary wetlands, shared watercourses and coordinatedconservation of wetland flora and fauna (Article5).

8. All these obligations apply equally to inland and coastal wetlandsunder the very broad definition of wetlands in Article 2.111. Partiesmay of course develop more detailed classification systems as abasis for national wetland legislation and managementprogrammes12. However, if a Party chooses to define wetlands morenarrowly (for example, by excluding coastal/marine wetlands), it

should ensure that legal and institutional measures applicable tosuch areas remain consistent with its Ramsar obligations.

9. In most cases, site-specific conservation cannot be achieved inisolation from general wise use considerations. Wetlands areexceptionally vulnerable to changes in the quantity or quality of theirwater supply which result inter alia from certain uses of surrounding

11 Areas of marsh, fen, peatland or water, whether natural or artificial,permanent or temporary, with water that is static or flowing, fresh, brackish or salt,including areas of marine water the depth of which at low tide does not exceed six

metres.12 See Guidelines for developing and implementing National Wetland Policies(Resolution VII.6).

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land or upstream water resources. Site-specific mechanisms,including protected area instruments, are rarely designed tosafeguard sites against adverse impacts caused by externalactivities: a management authority and/or wetland owners rarelyhave powers or even rights to information beyond wetland

boundaries. The wise use obligation provides Parties with a legalbasis to develop measures to regulate/manage activities damagingto wetlands, wherever they occur.

10. The requirement to conserve listed wetlands is an obligation ofresult, to prevent changes to the sites ecological character fromdevelopment, pollution or other human interference and to monitorthe site for such changes (Article 3.2). The Convention does notindicate how this should be done or what legal status should beattributed to listed wetlands. Parties are therefore free to choosehow to provide long-term protection against processes or activitieswhich would alter the wetlands character. Methods vary according toa countrys legal system (including customary law) and patterns ofwetland ownership. They include designation of wetlands asprotected areas under conservation legislation, conferring protectionunder land-use planning rules and using incentive measures topromote voluntary conservation. Often, a wetlands naturalproperties result from decades or centuries of interaction and use byindigenous and local communities: in such cases, replacingtraditional management approaches with public agency controls maydefeat the very object of wise use. In pristine, highly sensitive or

seriously overexploited wetlands, on the other hand, wise use mightactually take the form of no use (prohibition of human use oraccess).


11. The Ramsar Convention COPs have enlarged the listing criteria forRamsar sites from migratory waterbirds to representative or uniquewetlands, plants and animals and to most recently include fish.Consideration is now to be given to developing criteria based onimportant natural hydrological functions such as groundwater

recharge or water quality improvement13. This continuing extensionof scope brings site-specific conservation closer to mainstreameconomic activities and resource management and may havesignificant implications for institutions not directly concerned withwetlands.

2.2 Development of the wise use concept

12. In 1987, the COP approved the following definition of wise use: thesustainable utilization of wetlands for the benefit of mankind in away compatible with the maintenance of the natural properties of

13 Resolutions VI.3 and VI.23, Brisbane 1996; Technical Session 1, COP7 (Ramsar andWater).

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the ecosystem. Sustainable utilization is defined as human useof a wetland so that it may yield the greatest continuous benefit topresent generations while maintaining its potential to meet theneeds and aspirations of future generations. Natural properties ofthe ecosystem are defined as those physical, biological or

chemical components, such as soil, water, plants, animals andnutrients, and the interactions between them (Recommendation3.3).

13. The COP has adopted three key texts to assist Parties to implementthe wise use obligation. First, the Guidelines on the wise use ofwetlands (Annex to Recommendation 3.3) outline the need fornational action to: (1) improve institutional and organizationalarrangements; (2) address legislative and policy needs; (3) increaseknowledge and awareness of wetland values; (4) inventory andmonitor the status of wetlands; and (5) identify programme prioritiesand develop action plans for specific sites as components of aNational Wetland Policy.

14. Second, the Guidelines for the implementation of the wise useconcept(Annex to Recommendation 4.10, 1990) urge Parties toformulate comprehensive National Wetland Policies in the long termin a manner appropriate to their national institutions. The wise useprovision is stated to apply to all wetlands and their supportsystems: it entails implementation of general wetland policies aswell as wise use of specific wetlands, such activities being integral

parts of sustainable development. Policies should as far as possibleaddress all problems and activities related to wetlands in a nationalcontext.


Specific recommendations include:

At institutional level, establishing mechanisms and proceduresfor incorporating an integrated multidisciplinary approach intoplanning and executing projects concerning wetlands and their

support systems (paragraph 1(b));

At legislative and policy level, reviewing existing legislation andpolicies which affect wetland conservation and usingdevelopment funds for projects for conservation and sustainableuse of wetland resources (paragraph 2);

At site-specific level, integrating environmental impactassessment into planning of projects which might affect thewetland, regulating utilization of natural wetland products to

avoid overexploitation, involving local people in planning and

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restoring wetlands whose benefits and values have beendegraded (paragraph 5).

15. Third,Additional guidance for the implementation of the wise useconcept(Annex to Resolution 5.6, 1993) provides further assistance

to officials responsible for implementing Ramsar. It incorporates keyfindings of the Wise Use Project carried out from 1990-1993 (Davis1993), namely that:

social and economic factors are the main reasons for wetlandloss and should be of central concern in wise use programmes;

such programmes should involve public and private institutionsin addition to the wetland conservation agency where suchinstitutions have relevant expertise;

wise use should take account of surrounding coastal zones or

catchments where wetlands form an integral part thereof; activities affecting wetlands should be governed by the

precautionary principle where knowledge of ecologicalconstraints of a wetland system is not available.

16. In 1996, the COP again urged Parties to develop national wetlandpolicies, either separately or as a clearly identifiable component ofrelevant conservation planning initiatives such as environmentalaction plans or biodiversity strategies. A framework for nationalwetland policy development and implementation is currently beingdeveloped14.

2.3 The Purpose of a legal and institutional review

17. As part of wetland policy development, the COP has called on Partiesto review existing legislation and policies (including subsidies andincentives) which affect wetland conservation, where appropriate toapply existing legislation and policies important for wetlandconservation or, as required, to adopt new legislation and policies15.Parties should review legal and administrative constraints whichprevent management at the correct scale, such as catchment-widemanagement16 and generally ensure that legal and administrativeframeworks facilitate and do not impede wise use.

The central role of law in achieving wise use

Wise use cannot be effectively promoted withoutappropriate legal and institutional frameworks at local andnational level. Statutory and customary laws establish

14 Recommendation 6.9 and supra, note 4.15 para.2, Guidelines for the implementation of the wise use concept(Annex to

Rec.4.10, 1990).16 I.2.4,Additional guidance for the implementation of the wise use concept(Annex to Res.5.6, 1993).

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principles and rules for personal and corporate conduct anddetermine ownership and user rights for land, water andnatural resources and applicable taxation. Legislation can beused to require assessment and control of activities anddevelopment which may adversely affect wetlands, in

accordance with the principle of prevention; to set standardsto minimise impairment of land, water and air resources; tomonitor compliance; and to punish illegal practices.

Law makes it possible to confer special status on wetlandsor catchments, to require cross-sectoral planning on wetlandissues and to safeguard the rights of indigenous and localcommunities to information and participation in wetlandmanagement. A legal basis is necessary for most non-regulatory measures such as financial incentives forstewardship by individuals or communities.

Legislation defines the rights and duties of public authoritiesand agencies with regard to wetland conservation and wiseuse, including in relation to other States, and lays down theconditions under which financial support may be providedfor specific activities. It can authorise the use of judicialreview of actions undertaken by public agencies whichdamage wetlands and can permit civil law proceedings to bebrought against natural or legal persons where wetlandshave been harmed. It may provide for remedies such aspayment of damages and/or mandatory restitution orcompensation.

Law thus establishes the framework in which scientists,planners, managers and environmental economists makestrategic and operational choices and in which communitiesand other stakeholders exploit wetland resources.

18. Most recently, the Ramsar Strategic Plan 1997-2002 urges Parties:

to review and, if necessary, amend national or supra-national(e.g., European Community17) legislation, institutions andpractices to ensure that the Wise Use Guidelines are applied(Operational Objective 2.1); and

to carry out a review of legislation and practices and indicate inNational Reports to the COP how the Wise Use Guidelines areapplied (Action 2.1.1).

19. The review should cover statutory, customary and case lawapplicable to wetland conservation and wise use and sectoralactivities which directly or indirectly impact on wetlands, and itshould take account of the practical effects of such law. By way ofexample, natural resource legislation often gives a public authoritygeneral powers to issue permits or give financial assistance to

certain activities or projects which may be benign (e.g., incentives17 N.B. The EC itself is not a Party to the Convention.

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for environmentally sensitive agriculture) or potentially harmful (e.g.,wetland drainage, watershed deforestation). The compatibility ofsuch legislation with the wise use obligation will depend on thepermits actually granted, any use of mitigation/compensationconditions and the use of monitoring and enforcement procedures by

administrative authorities.

20. As stated in the Guidelines for reviewing laws and institutions topromote the conservation and wise use of wetlands, a review hastwo key objectives:

to identify legal and institutional measures which constrainconservation and wise use; and

to support the development of positive legal and institutionalmeasures for conservation and wise use.

2.4 Areas of complementarity with other environmentalagreements

21. The Ramsar Convention has served as a catalyst for internationalrecognition of wetlands as reservoirs of biological diversity andeconomically valuable components of inland and coastal watersystems. Many environmental agreements contain provisions ofdirect relevance to wetland conservation and wise use. WhereContracting Parties are party to such treaties, they should ensurethat such provisions are implemented consistently with wise use. The

review process can help Parties to rationalise complementarylegislative and institutional mechanisms.


22. The most relevant treaty is the 1992 Convention on BiologicalDiversity (CBD)18 to which virtually all Contracting Parties to Ramsarare also party. The CBD expressly requires its Parties to promote theintegration of conservation and sustainable use of biological diversity(including wetland ecosystems and products) into relevant sectoralor cross-sectoral plans, programmes and policies19. A Memorandum

of Cooperation between the Ramsar and CBD Secretariats wassigned on 19 January 1996 to promote institutional cooperation,exchange of information and joint conservation action. A Joint WorkPlan is in place between the two Conventions20.

23. Scope for cooperative research, planning and joint action existsbetween the Ramsar Convention and the 1992 United Nations

18 See generally Glowka et al 1994.19 Articles 6 and 10.20 See page 33 and Attachment to Diplomatic Notification

1998/5:Cooperation with the Convention on Biological Diversity(UNEP/CBD/COP/4/Inf.8). [2nd Edition update: see also COP8 DOC.18(http://ramsar.org/cop8_doc_18_e.htm)]

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Framework Convention on Climate Change with regard to issuessuch as: the vulnerability of coastal and low-lying regions and smallisland States to predicted sea level rise; the importance of coastalwetlands for protection against coastal flooding; the bleaching ofcertain coral reefs apparently as a result of rising sea temperatu

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