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Legal Duties for Restoration of Wetlands & Waterways

This presentation provides an overview of the legal framework surrounding the duty to restore wetlands and waterways, focusing on the Ramsar Convention. It examines the enforceability and justiciability of these duties and proposes measures to strengthen them.

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Legal Duties for Restoration of Wetlands & Waterways

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  1. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 Legal Duties for Restoration of Wetlands & Waterways

  2. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 Overview of presentation Argument Analysis of legal framework The Ramsar Convention Duty to restore by EWAs? Duty to monitor and report? Legal effect of duties? Conclusion & proposals 2

  3. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 Argument • Law is unlikely to offer a perfect • solution • Law stands or falls with its • administration • But law can: • Require that EWAs are made • Afford same degree of security as allocations for human consumptive use • Compared to policy or principles, potentially ensure that EWAs are made 3

  4. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 Analysis of legal framework • Duty to restore wetlands and waterways by EWAs? • If so, duty to monitor and report on implementation? • Are they binding, enforceable and justiciable in an international forum? 4

  5. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 The Ramsar Convention • Convention on Wetlands of International Importance especially as Waterfowl Habitat (1975) • Protection of habitat approach • 169 Contracting Parties 5

  6. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 Duty to restore by EWAs? • Yes • Article 3.1: promote conservation of • listed wetlands and as far as possible • wise use of all wetlands • = maintain ecological character • through implementation of ecosystem approaches within sustainable development context • To maintain ecological character • ‘it is necessary to allocate water as closely as possible to the natural regime’ • Climate change 6

  7. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 Duty to monitor and report? • Yes • Article 3.2: ‘shall arrange to be informed’ if ecological character of listed wetland ‘has changed, is changing or is likely to change’ due to human interference • On implementation of duty to restore, but largely derived by interpretation 7

  8. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 Legal effect of this duty? • Is it binding? Yes • But subject to exceptions physically ‘possible’ and ‘urgent national interests’ • Is it enforceable? Yes • But hampered by ambiguity • Is it justiciable? Yes • Despite no dispute settlement provision through the International Court of Justice, but only by states 8

  9. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 Conclusion & proposals • Unambiguous duty to restore degraded wetlands, including by providing adequate environmental water flow, • Express objective test for exceptions of physically ‘possible’ and ‘urgent national interest’, • Clear monitoring and reporting duties, and • Dispute settlement provision that allows state parties and other entities to resort to international adjudication and/or arbitration 9

  10. TAJ PALACE, NEW DELHI | 12 – 14 SEPTEMBER 2016 All photos kindly provided by David Rennie www.davidrennie.com

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