IUCN Environmental Law Centre Wetlands, Water and the Law Using law to advance wetland conservation and wise use Clare Shine and Cyrille de Klemm IUCN Environmental Policy and Law Paper No. 38 IUCN The World Conservation Union Wetlands, Water and the Law Using law to advance wetland conservation and wise use IUCN - The World Conservation Union Founded in 1948, The World Conservation Union brings together States, government agencies and a diverse range of non-governmental organizations in a unique world partnership: over 930 members in all, spread across some 138 countries. As a Union, IUCN seeks to influence, encourage and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable. A central secretariat coordinates the IUCN Programme and serves the Union membership, representing their views on the world stage and providing them with the strategies, services, scientific knowledge and technical support they need to achieve their goals. Through its six Commissions, IUCN draws together over 6,000 expert volunteers in project teams and action groups, focusing in particular on species and biodiversity conservation and the management of habitats and natural resources. The Union has helped many countries to prepare National Conservation Strategies, and demonstrates the application of its knowledge through the field projects it supervises. Operations are increasingly decentralized and are carried forward by an expanding network of regional and country offices, located principally in devel- oping countries. The World Conservation Union builds on the strengths of its members, networks and partners to enhance their capacity and to support global alliances to safeguard natural resources at local, regional and global levels. Wetlands, Water and the Law Using law to advance wetland conservation and wise use Clare Shine and Cyrille de Klemm IUCN Environmental Policy and Law Paper No. 38 IUCN - The World Conservation Union 1999 The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The views expressed in this publication do not necessarily reflect those of IUCN or its members. Published by: IUCN, Gland, Switzerland and Cambridge, UK in collaboration with IUCN Environmental Law Centre, Bonn, Germany. IUCN The World Conservation Union Copyright: © 1999 International Union for Conservation of Nature and Natural Resources. Reproduction of this publication for educational or other non-commercial purposes is authorised without prior permission from the copyright holder provided the source is fully acknowledged. Reproduction for resale or other commercial purposes is prohibited without the prior written permission of the copyright holder. Citation: Clare Shine and Cyrille de Klemm (1999). Wetlands, Water and the Law. Using law to advance wetland conservation and wise use. IUCN, Gland, Switzerland, Cambridge, UK and Bonn, Germany. xvi + 330 pp. ISBN: 2-8317-0478-2 Cover design by: IUCN Environmental Law Centre Cover photograph: Piro Indian fishing with bow and arrow in oxbow lake, Nanu National Park, Peru: WWF/André Bärtschi Layout by: Barbara Weiner, Desktop Publications Co-ordinator Printed by: Daemisch Mohr, Siegburg, Germany Available from: IUCN Publications Services Unit 219c Huntingdon Road, Cambridge CB3 0DL, United Kingdom Tel: +44 1223 277894, Fax: +44 1223 277175 E-mail: [email protected] www: http://www.iucn.org A catalogue of IUCN publications is also available Dedication to Past and Future Generations To Cyrille de Klemm, for his unique insight, inspiration and friendship And to Louis, Julian and Eleanor, for whom - and despite whom - this book was written V Table of Contents Foreword xiii Acknowledgements xv PART I Wetlands: A Scientific and Legal Profile 1 1 What are Wetlands and Why Do They Matter? 3 1.1 Defining Wetlands 3 1.2 Classification of Wetland Types 4 Box 1. The Range of Wetland Habitat Types 5 1.2.1 Artificial Wetlands 6 1.3 Ecological and Economic Importance of Wetlands 7 1.3.1 Wetland Products 7 1.3.2 Wetland Functions 8 1.3.3 Wetland Attributes 9 2 Wetland Loss and Degradation: Extent and Causes 13 2.1 Estimates of Wetland Loss 13 2.2 Direct Causes: Damaging Processes and Activities 15 2.2.1 Loss of Wetland Area : 16 2.2.2 Changes to the Water Regime 16 2.2.3 Changes in Water Quality 18 2.2.4 Overexploitation of Wetland Products 19 2.2.5 Introductions of Alien Species 20 2.3 Underlying Causes 21 2.3.1 Market and Policy Failures 21 2.3.2 The Gap Between Law and Science 23 2.3.2.1 Wetland Flora and Fauna 23 2.3.2.2 Wetland Habitat Types 24 2.3.2.3 Wetland Functions 24 2.3.2.4 Legal Treatment of Water 24 3 The Emergence of Legal Responses at International Level 27 3.1 Ramsar Convention on Wetlands (1971) 27 3.1.1 Background 27 3.1.2 Objectives, Obligations and Mechanisms 28 3.1.3 Evolution of the Convention and Current Status 31 3.2 Development of Other International Instruments Relevant to Wetlands 33 3.3 Convention on Biological Diversity (1992) 37 3.4 Action on the Ground: the Challenge of National Implementation 41 vii PART II National Planning for Wetland Conservation and Wise Use 45 4 Scope and Implementation of the Wise Use Concept 47 4.1 Interpreting Wise Use 47 4.2 Guidance Adopted by the Ramsar Conference of the Parties 49 4.3 The Importance of Wetland Policies 51 4.4 Relationship Between Policy and Law 57 5 Reviewing Law and Institutions Relevant to Wetlands 59 5.1 Review Purpose and Criteria 59 5.2 Identifying Possible Constraints on Wise Use 61 5.2.1 Conflicting Sectoral Policies, Laws and Taxes 61 5.2.2 Weakness of Wetland-related Laws and Institutions 62 5.2.3 Poorly-adapted Legal Regimes for Land Tenure and Resource Use 64 5.2.4 Jurisdictional and Institutional Barriers to Integrated Ecosystem Management.... 67 5.2.4.1 Jurisdictional Barriers in Inland Water Systems 67 5.2.4.2 Jurisdictional Barriers in Coastal Areas 68 6 Building Institutional Coordination and Awareness 71 6.1 Horizontal Coordination 71 6.2 Vertical Coordination 74 6.3 Strengthening Linkages With Local Communities and the Private Sector.. 76 7 Developing Legal Frameworks for Wise Use 79 7.1 What Kind of Law for Wetlands? 79 7.1.1 Legal Systems Focused on Wetland Areas 81 7.1.2 Legal Systems Focused on the Management of Activities that May Affect Wetlands 84 7.2 Principles for Legislation 85 7.3 Definitions and the Need for Legal Certainty 87 7.4 Establishing a Knowledge Base: Inventories, Maps and Monitoring 90 7.5 The Issue of Wetland Restoration 93 PART III Managing Wetland Areas Through Site-specific Mechanisms 95 8 Application of Site-specific Conservation Measures to Wetlands 99 8.1 Site-specific Obligations Under the Ramsar Convention 99 8.1.1 Criteria for Selecting Wetlands 99 8.1.2 Legal Consequences of Listing 101 8.1.3 Management Tools and Guidance 103 8.2 Status of Site Conservation Requirements Under Other International Instruments .... 105 8.2.1 Global Instruments 106 8.2.2 Regional Instruments 108 8.2.3 Wetland Conservation Under the Regional Seas Conventions 111 8.3 Considerations for Implementation at National and Local Level 113 viii 9 Adapting Protected Area Instruments to Wetland Characteristics 115 9.1 Overview of Protected Area Objectives and Management Categories 115 9.2 Factors of Particular Relevance to the Selection and Design of Protected Wetlands ..118 9.2.1 Determination of Boundaries and Management Powers 118 9.2.2 Under-representation of Coastal and Marine Protected Areas 121 9.2.3 Relationship Between Strict Conservation and Human Utilisation 124 10 Legislative Techniques for Protecting Larger Wetlands 127 10.1 Key Components of Legislation 127 10.1.1 Legal Status and Management Structures Supportive of Multiple Use 127 10.1.2 Management Planning and Zoning 129 10.1.3 Involvement of Local Populations in Wetland Management 131 10.2 Selected Case Studies of Wetland Nature Parks and Biosphere Reserves 133 10.2.1 Linear River Parks (Italy) 133 10.2.2 Inland Bogs and Forested Wetlands (New Jersey Pinelands, United States). 136 10.2.3 Fens and Marshes (Norfolk and Suffolk Broads, United Kingdom) 137 10.2.4 Estuaries (Chesapeake Bay, United States) 139 10.2.5 Mediterranean Coastal Zone (Albufera de Mallorca, Spain) 140 10.2.6 Tropical Forests and Coastal and Marine Wetland Complexes (Sian Ka'an, Mexico) 142 11 Other Mechanisms for Site-specific Conservation of Wetlands 145 11.1 Regulatory Protection of Designated Rivers and Wetland Sites 145 11.2 Designation of Wetlands as Sites of Special Scientific Interest 148 11.3 Conservation Strategies Based on Public Acquisition of Wetlands 150 11.4 Legislative Techniques to Promote Private Acquisition and Protection of Wetlands ..152 11.4.1 Measures to Help Private Organisations 152 11.4.2 Measures to Assist Individuals 156 PART IV Managing Wetland Areas in a Bioregional Context 159 12 Generalised Protection of Wetland Habitat Types 163 12.1 Constitutional Protection of Wetlands 163 12.1.1 Brazilian Federal States 163 12.1.2 Switzerland 164 12.1.3 Uganda 164 12.2 Legislation for the Conservation of Wetland Habitat Types 164 12.3 Scope of Generally-applicable Laws for Wetland Conservation: Selected Examples 165 12.3.1 Austria 165 12.3.2 Costa Rica 166 12.3.3 Denmark 167 12.3.4 France 168 12.3.5 Germany 168 12.3.6 Luxembourg 169 12.3.7 Spain 169 12.3.8 Sweden 170 12.3.9 Switzerland 170 ix 12.3.10 Tunisia 171 12.3.11 Uganda 171 12.3.12 United States of America 172 12.3.13 Zimbabwe 176 12.4 Conservation of Particular Categories or Components of Wetlands 176 12.4.1 Lakes and Ponds 176 12.4.2 Peatbogs 177 12.4.3 Caves and Subterranean Karst Wetlands 177 12.4.4 Glaciers 178 12.4.5 Mangroves and Other Coastal Wetlands 178 12.4.6 Native Wetland Vegetation 180 13 Integrating Wetland Conservation and Wise Use into Land-use Planning 183 Box 2.