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Ecosystem Functions and Services in IWRM

Ecosystem Functions and Services in IWRM. 5.1. What are the Policy and Legal options?. Goal.

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Ecosystem Functions and Services in IWRM

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  1. Ecosystem Functions and Services in IWRM 5.1. What are the Policy and Legal options?

  2. Goal Through this session we will discuss the legal arrangements that are needed and that are being developed to enable decision-makers and local communities, to incorporate the Ecosystem Approach within Integrated Water Resources Management (IWRM) at basin level

  3. Objectives / Outline I. Understand and analyze international and national legal frameworks II. Learn about the types, scope and sources of legal instruments III. Identify different policy and legal mechanisms to implement IWRM from an ecosystem and environmental perspective

  4. I. Understand and analyze national and international and legal frameworks • 1. Identification of relevant legislation, jurisprudence and customary law • 2. Analysis of substance of laws: evaluation of environmental rights and obligations; enforcement effects • 3. New or amended legislation should consider the ecosystem as a water user and water supplier • 4. Updating of international and regional water agreement to incorporate the ecosystem approach

  5. I. Understand and analyze national and international and legal frameworks (cont.) 5. Enforcement effects – challenges: - Lack of political will - Failure to anticipate the cost of implementation - Lack of understanding of legislation

  6. II. Type, scope and source of legal instruments Legal instruments are linked in a hierarchical fashion – Normative Pyramid of Hans Kelsen Constitution International treaties Laws Regulations Administrative acts

  7. II. Type, scope and source of legal instruments (cont.) Statute of the International Court of Justice (Art. 38) Constitution International treaties Laws Regulations Administrative acts

  8. International multilateral environmental agreements (cont.) Source: Global Environment Outlook, GEO4, Environment for Development. UNEP, 2007

  9. International freshwater treaties (cont.) http://www.transboundarywaters.orst.edu/publications/atlas/

  10. Principles – Rio Declaration (1992) Prevention (14) Precaution (15) In order to protect the environment, the precautionary approach shall be widely applied ... Where there are threats of serious irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” “States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health.”

  11. http://www.savingwater.co.za/2011/02/15/16/water-polluters-to-pay-environmental-tax/http://www.savingwater.co.za/2011/02/15/16/water-polluters-to-pay-environmental-tax/ Principles – Rio Declaration (1992) • the polluter pays principle (16): “National authorities should endeavour to promote the internationalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter, should in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”

  12. Principles – Rio Declaration (1992) •Public participation principle (10): “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

  13. International judicial decisions Pulp mills on the River Uruguay (Argentina vs. Uruguay) Gabçikovo Dam on the Danube River between Hungary and Slovakia

  14. III. Policy and legal mechanisms to implement IWRM from an ecosystem and environmental perspective - CONSTITUTION • Constitution of South Africa 1996, section 26 • “Everyone has the right-- • a.. to an environment that is not harmful to their • health or well--being; and • b.. to have the environment protected, for the • benefit of present and future generations, through • reasonable legislative and other measures that-- • i. prevent pollution and ecological degradation; • ii. promote conservation; and • iii. secure ecologicaly sustainable development • and use of natural resources while promoting • justifiable economic and social development.” Constitution

  15. III. Policy and legal … (cont.)Framework Environmental law It is a single law that provides the legal and institutional framework for environmental management without seeking to legislate comprehensively Permits a holistic view of the ecosystem http://www.ecolex.org/start.php

  16. III. Policy and legal … (cont.) National legislation: Water law and regulations – mechanisms to mainstream environment • Environmental criteria for water permits and licenses • Pollution prevention control and abatement standars • Environmental impact assessement • Minimum instream and environmental flow criteria • Ecosystem services payments schemes • Protected areas for water-related purposes

  17. 1. Environmental criteria for water permits and licenses • Environmental criteria in water permits can include: • justification for the proposed water use, • explanation of the expected benefits, • data on the availability and quality of water in the source water body, • discussion of possible alternative sources for the desired water

  18. 2. Pollution prevention control and abatement standards Water pollution has been grouped into two distinct types of pollutants: -point source (effluent outflows from industries, municipal sewers, waste dumps) and -non-point source (agriculture, flows off of development projects, parking lots, roads, and highways) Distinction especially relevant from a management perspective

  19. 3. Environmental impact assessment EIA incorporates environmental concerns and information into the decision-making process

  20. 4. Minimum instream and environmental flow criteria • Chile: Prescribes that minimum flows should be no greater than twenty percent of the average annual flow • Nicaragua: Requirement of ten percent of the average inter-annual flow of watercourses has been inaugurated on a country-wide basis • Switzerland: Minimum flow figures for different average flow rates, which take into account geographical and ecological functions of water bodies

  21. 5. Ecosystem services payments schemes Costa Rica (2005): Water tariff structure that highlights the economic and environmental importance of water http://www.teebweb.org /LinkClick.aspx?fileticket=vYOqLxi 7aOg%3d&tabid=1019&language=en-US http://www.eclac.org/publicaciones/xml/5/27165/L754.pdf

  22. 6. Protected areas for water-related purposes

  23. Customary law In some countries, customary law can be as important as “written” law in regulating water resource-related activities, especially at the level of rural community Source: Charles Darwin University, chool for Environmental Research http://www.cdu.edu.au/ser/GovernanceofWaterResources.htm#governance (accessed 29/09/2010).

  24. Final remarks • National water law has expanded to address environmental protection • Greening of environmental laws can ensure adequate supplies of clean water for the environment, people, communities and nations • There are a broad array of examples of mechanisms being employed to strengthen the environmental/ecosystemic dimension of domestic laws and regulations

  25. Food for thought • “Copying / pasting” laws vs customized /nationalized drafting of legal instruments? • How much do policies, law and regulations cost to implement/comply with and enforce? (human resources, equipment, skills and knowledge, etc)?

  26. Next: Role play on water-related disputes • Pulp mills on the River Uruguay (Argentina vs. Uruguay) • Nepal (Suray Prasad vs. Godavari Marble Industries and others) • India (M.C. Mehta vs. Kamal Nath) on Beas River Case: Imposition of Exemplary Damages • South Africa (Harmony Gold Mining vs. Regional Director, Department of Water Affairs and Forestry)

  27. Instructions:Please read the Case Study • The Problem • i. Identify the problem • ii. Explain why the problem is important • iii. Decide the role playing for members of the group to share with the plenary and the Dialogues • iv. Identify the main consideration of the Court in solving the case • v. Prepare the role play • Time Assigned • The group has 45 minutes to accomplish the task and 15 minutes to present the role play • Please try to be very clear with the key issues of the case and the main consideration of the Court in solving the case

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