legal aspects of sustainable soils: international and national

copy Blackwell Publishing Ltd 2003 9600 Garsington Road Oxford OX4 2DQ UK and 350 Main Street Malden MA 02148 USA

RECIEL 12 (2) 2003 ISSN 0962 8797

149

Legal Aspects of Sustainable Soils International and National

Ben Boer and Ian Hannam

INTRODUCTION

The ever-increasing demand for food and naturalresources by rapidly growing human populations inmany countries in the past few decades has exertedincreasing environmental stress of every type includ-ing widespread soil degradation Processes of soil de-gradation have devastated both the biodiversity andproductivity of large areas The damage is often irre-versible particularly when measured on the timescaleof a human lifespan Soil degradation has occurredin most regions of the world cutting across a broadspectrum of contrasts in climate ecosystem types landuses and socio-economic settings Soil scientists inparticular see soil degradation as a serious globalthreat

1

In its most extreme form soil degradation isexpressed as lsquodesertificationrsquo where there are serioussoil degradation problems in very dry and drought-affected areas In whatever form degradation of theworldrsquos soil resources affects the livelihood of currentand future generations The complexity of the phe-nomenon has challenged the ability of soil scientistsfarmers and policy makers to categorize and monitorthe condition of soil to try to restore it and to promoteits sustainable use

This article provides background to current legislativetools pertaining to soil degradation It gives particu-lar emphasis to the progress made to control andmanage desertification and outlines frameworks forlegislative reforms to achieve the sustainable use ofsoils As will be seen international and national legalinstruments and institutional systems will play anincreasingly important role in the management of soildegradation and the promotion of sustainable soil useIn this article sustainable use of soils is taken tomean

the use of soils in a manner that preserves the balancebetween the processes of soil formation and soil degrada-tion while maintaining the ecological functions and needs

of soil In this context the use of soil means the role of soilin the conservation of biodiversity and the maintenanceof human life

2

A premise of this article is that soil bodies are effect-ively large ecosystems and comprise fundamentalcomponents of the Earthrsquos biological diversity There-fore any discussion of soil conservation is necessarilyseen as a specialized aspect of the conservation ofbiological diversity in general

3

Soil is also a basisfor sustaining all other terrestrial organisms includ-ing of course people If we accept the forecast thatthe worldrsquos human population will increase from thepresent 60 billion to around 76 billion by 2020

4

alarge increase in food production must take place inorder to provide sufficient food both for these addi-tional people and to raise the standard of provision forthose who currently have an inadequate diet

5

Thisincrease in food production must come from approx-imately the same land area that is now being farmedas the remainder is too wet too dry too cold too steepand mountainous or simply lacking in sufficient life-sustaining nutrients to make a significant contribu-tion

6

This means that greater pressure will be put onthe land especially the areas of fertile soils to providethe food required Soil degradation is widespreadand still increasing especially through salinizationwind erosion water erosion soil-nutrient depletionand physical deterioration of soil structure Dramatic

1

See VC Carvalho

The Holistic Vision of Land Degradation AFundamental Ethical Principle

Third International Conference on LandDegradation and Meeting of the International Union of Soils Scient-ists Sub-Commission C ndash Soil and Water Conservation DocumentNo 40 (Ministerio da Agricultura Brazil 17ndash21 September 2001)

2

See ID Hannam and BW Boer

Legal and Institutional Frame-works for Sustainable Soils

(IUCN 2002) at 22 available at lthttpwwwiucnorgthemeslawpdfdocumentsEPLP45ENpdfgt

3

See ibid see also JG Sheals

The Soil Ecosystem SystematicAspects of the Environment Organisms and Communities

Publica-tion No 8 (The Systematics Association 1969)

4

United Nations

World Population Prospects The 2000 Revision

(UN Department of Economic and Social Affairs Population Divi-sion 2001) see also RP Cincotta and R Engleman

NaturersquosPlace Human Population and the Future of Biological Diversity

(Population Action International 2000)

5

One out of five people in the lsquodeveloping worldrsquo do not have accessto enough food for healthy living World Resources Institute

LinkingEnvironment and Health Malnutrition

(World Resources 1999) at1 available at lthttpwwwwriorgwr-98-99malnutrihtmgt citing theFood and Agriculture Organization (FAO)

The Sixth World FoodSurvey

(FAO 1997) at vndashvi

6

See also F Dodds

Earth Summit 2002 A New Deal

(Earthscan2000) at 184ndash185

BEN BOER AND IAN HANNAM RECIEL 12 (2) 2003

copy Blackwell Publishing Ltd 2003

150

impacts of soil degradation have been documented insome areas with loss of productive lands and dis-placement of people from their homelands Wheresignificant degradation has occurred this represents aserious threat to food security particularly in poorerdeveloping countries This often involves a lack ofaccess to fertile land and political instability and hasgenerated serious internal civil conflict in a number ofnations A stark example is Rwanda

the problems in Rwanda were very acute since it isa highly agricultural country most of the disputes havecentred around the distribution of pastureland and farm-land The World Bank lists Rwanda as the least urbanizedcountry in the world and the most densely populated inAfrica As a result of limited access to arable land and intensepopulation growth between 1954 and 1993 farmers werepushed into arid and hilly regions leading to intense cultiva-tion and erosion Thus environmental pressures accentu-ated existing tensions within the country contributing tolarge-scale violence and genocide

7

The inequitable distribution of arable land has beenrecognized as a major problem and to date has beeninadequately addressed by the reform of laws relatingto land ownership and transfer

8

Thus the agriculturaluse of land that is already degraded exacerbated bythe lack of access or availability of undegraded landand population growth creates a cycle of continuingdegradation which in turn contributes to furtherpoverty and conflict especially in sub-Saharan Africawhere significant areas of desertification already exist

Just as importantly soil degradation also threatensother aspects of the environment This occurs boththrough direct effects such as reduced habitat qualitythus depleting biodiversity and reducing hydrologicalfunctions and indirectly by forcing farmers to clearadditional land to compensate for yield declines landabandonment or sealing of land for urban use roadsand other purposes

9

The productivity of some lands has declined by 50because of soil erosion Yield reduction in Africa dueto past soil erosion ranges from 2 to 40 with amean loss of 82 for the continent In south Asiaannual loss in productivity was estimated at 36 milliontons of cereal equivalent to US$5400 million by watererosion and US$1800 million due to wind erosion Ona global scale the annual loss of 75 billion tonnes oftopsoil costs the world around US$400 billion peryear

10

[N]early 2 billion hectares of land ndash an area about the com-bined size of Canada and the United States ndash is affected byhuman-induced degradation of soils putting the liveli-hoods of nearly 1 billion people at risk Each year anadditional 20 million hectares of agricultural land becomestoo degraded for crop production or is lost to urbansprawl

11

Soil degradation is a lsquo ldquocross-cutting issuerdquo that intersectswith biodiversity climate change hazardous waste andother issues of global changersquo

12

such as populationgrowth and food insecurity In recent years there hasbeen an increasing interest in examining and under-standing the law relating to soil degradation and thepromotion of sustainable soil use The initial impetusfor this work was sparked primarily by the meetingsconducted and research carried out by various inter-national soil science organizations

13

and subsequentlyby the Environmental Law Programme of the Inter-national Union for the Conservation of Nature andNatural Resources (IUCN) ndash the World ConservationUnion ndash and other bodies With respect to desertifica-tion the 1994 Convention to Combat Desertificationin Countries Experiencing Serious Drought andorDesertification Particularly in Africa

14

(hereafter theCCD) and its various Annexes

15

have stimulated agreat deal of debate and the beginnings of action Inthe past 3 years there have been more definite movesto promote reform in this area of environmental lawIn particular substantial progress has been made ondeveloping appropriate frameworks for successfulmanagement of soils especially at the national level

DEFINITIONS AND TERMINOLOGY

One of the difficulties in discussing soil degradation isthe question of misused or misunderstood termino-logy in both the scientific and legal literature In order

7

Ibid at 187ndash188

8

See FAO Legal Office

Land and Sustainable Development sinceRio Legal Trends in Agriculture and Natural Resource Management

(FAO 2002) at 233

9

EM Bridges

et al

Response to Land Degradation

(Science Pub-lishers Inc 2001) at 2

10

HR Eswaran R Lal and PF Reich lsquoLand Degradation An Over-viewrsquo in ibid at 20ndash35

11

Policy Issues State of the Environment ndash UNEPrsquos Policy on Landand Soil

(UNEPGC21INF13 4 January 2001) at 2 available atlthttpwwwuneporggc_21stDocumentsgc-21-INF-13K0100000E-gc-21-INF-13pdfgt quoting the

Millennium Report of the SecretaryGeneral of the United Nations

(GA Res 559 UN GAOR 2000) at8 available at lthttpwwwunorgmillenniumsgreportch4pdfgt

12

H Hurni and K Meyer

World Soils Agenda

(GeographicaBernensia on behalf of the International Union of Soil Sciences2002) at 14

13

Especially the International Union of Soils Sciences the WorldAssociation of Soil and Water Conservation the European SoilBureau the International Soil Reference and Information CentreFoundation Charles Leopold Mayer and the International Board forSoil Research and Management (which became part of the Inter-national Water Management Institute in 2001)

14

UN Convention to Combat Desertification in Countries ExperiencingSerious Drought andor Desertification Particularly in Africa (Paris17 June 1994) printed in 33 ILM (1994) 1328

15

Ibid Annexes 1ndash5

RECIEL 12 (2) 2003 LEGAL ASPECTS OF SUSTAINABLE SOILS INTERNATIONAL AND NATIONAL


151

for the legal means of soil conservation and reductionof degradation processes to be properly understood itis important to be clear on the meaning of variousterms as well as the relationship between these termsIn particular confusion often arises by the fact thatsoil degradation is a significant component of landdegradation where the latter is considered to includethe degradation of water and vegetation in additionto soil degradation Further soil scientists considerdesertification to be a form of land degradation thatoccurs within specified geomorphic environments

16

From a definitional perspective these relationshipsare especially important because the CCD itself com-pounds this confusion through the use of terminologythat is inadequately or inappropriately defined TheCCD focuses on the physical process of land degrada-tion particularly in African nations However thegeographic focus of the definition of lsquodesertificationrsquo inthe CCD is limited to arid semi-arid and dry sub-humid areas It thus excludes large and significant cli-matic regions of the world that experience very severesoil degradation processes that are encompassed inthe physical (as opposed to the geographical) part ofthe definition of desertification

17

Examples of suchregions include the warm and cool temperate range-lands of Australia the rangeland areas of Iceland andparts of Eastern Europe Canada and Argentina

SOIL

It is well known that the processes involved in soilformation are complex

18

and that various definitionsof soil reflect this complexity The Council of Europedefines soil as

an integral part of the Earthrsquos ecosystems and is situ-ated at the interface between the Earthrsquos surface and bed-rock It is subdivided into successive horizontal layers withspecific physical chemical and biological characteristicsFrom the standpoint of history of soil use and from an eco-logical and environmental point of view the concept of soilalso embraces porous sedimentary rocks and other per-meable materials together with the water that these containand the reserves of underground water

19

The definition of soil indicates that it has a fundamentalrole in the terrestrial ecosystem as a three-dimensionalbody performing a wide range of ecological functions

20

Alteration of soil processes leads to changes in the

function of ecosystems and it must therefore berealized that many environmental problems whichbecome apparent in other environmental media actu-ally originate within the soil It is essential that theprincipal functions of soil which include its ecologicalfunctions cultural functions and land-use functionsmust strongly influence the formulation and design ofnational and international legal frameworks for soilThe ecological functions in particular should be qual-itatively and quantitatively safeguarded and preservedin the long term to conserve biodiversity and maintainhuman life The functions of soil have been incorpor-ated within a regional convention

21

and many piecesof domestic legislation refer to various individual soilfunctions

22

SOIL DEGRADATION

Soil degradation is a loss or reduction of soil functionsor soil uses

23

It includes aspects of physical chemicaland biological deterioration including loss of organicmatter decline in soil fertility decline in structuralcondition erosion adverse changes in salinity acidityor alkalinity and the effects of toxic chemicals pollut-ants or excessive flooding

24

LAND

The CCD includes a definition of land that can be gen-erally applied It defines lsquolandrsquo as lsquothe terrestrial bio-productive system that comprises soil vegetationother biota and the ecological and hydrological pro-cesses that operate within the systemrsquo

25

LAND DEGRADATION

As indicated above land degradation is a broad termthat includes degradation of water and vegetation aswell as the processes of soil erosion and desertificationIt can be summarized as meaning the lsquooverall reductionin the capability of land to produce benefits from aparticular land use under a specific form of land man-agementrsquo

26

The CCD defines lsquoland degradationrsquo as

16

More specifically lsquodesertification is land degradation in drylandareasrsquo See H Hurni and K Meyer

n 12 above at 14 and see fur-ther below under lsquoLand Degradationrsquo

17

CCD Article 1 definition of lsquodesertificationrsquo

18

See for instance TR Paton

The Formation of Soil Material

(George Allen and Unwin 1978)

19

Council of Europe

European Conservation Strategy ndash Recom-mendations for the Sixth European Ministerial Conference on theEnvironment

(Council of Europe 1990)

20

See JG Sheals n 3 above

21

See Protocol on the Implementation of the Convention concerningthe Protection of the Alps of 1991 in the Area of Soil Protection(Salzburg 1991) Article 1 available at lthttpfletchertuftsedumultitextsbh993atxtgt but not yet in force Article 1 effectively setsout the multifunctional role of soil See also

Draft Revised EuropeanSoil Charter

(Council of Europe 2002) available at lthttpwwwnaturecoeint CO-DBP6codbp02e_02docgt which includesan explicit description of the functions of soil

22

See ID Hannam and BW Boer n 2 above section 4 subsection23 at 37

23

PEV Charman and BW Murphy (eds)

Soils Their Propertiesand Management

(Oxford University Press 2000) at 4

24

Ibid at 4

25

CCD Article 1(e)

26

See ID Hannam and BW Boer n 2 above at 14



152

the reduction or loss in arid semi-arid and dry sub-humid areas of the biological or economic productivity andcomplexity of rain-fed cropland irrigated cropland orrange pasture forest and woodlands resulting from landuses or from a process or combination of processes includ-ing processes arising from human activities and habitationpatterns such as (i) soil erosion caused by wind andorwater (ii) deterioration of the physical chemical and bio-logical or economic properties of soil and (iii) long-termloss of natural vegetation

27

Land degradation thus refers to an overall reductionin the capacity of the land to produce benefits froma particular land use under a specific form of landmanagement

DESERTIFICATION

For many years the term lsquodesertificationrsquo was a vague andoften confusing concept because of the many meaningsand applications of the term lsquodesertrsquo A variety ofdefinitions and meanings was argued extensively inthe physical sciences

28

This issue was settled to an extentwith the introduction of the CCD where lsquodesertificationrsquofor the purposes of the Convention is defined to meanlsquoland degradation in arid semi-arid and dry sub-humidareas resulting from various factors including climaticvariations and human activitiesrsquo

29

The term lsquoarid semi-arid and dry sub-humid areasrsquomeans areas other than polar and sub-polar regionsin which the ratio of annual precipitation to potentialevapotranspiration falls within the range 005ndash065

Since the beginning of negotiations of the CCD in 1992there have been various arguments and criticisms overthe assessed limitations of the definition including thefact that it confines desertification to arid and semi-arid and dry sub-humid areas

30

From a geomorphicviewpoint deserts are very complex and the term hasa range of meanings mainly based on the approachesand methods of categorization The categorization of adesert area is related to its climatic vegetation soildrainage and land-form characteristics

31

quite apartfrom any particular geographic location

MULTILATERAL ENVIRONMENTAL TREATIES AND OTHER INSTRUMENTS CONCERNING SOIL

Since the early 1900s over 200 multilateral environ-mental treaties agreements and protocols have beendeveloped to manage and protect the worldrsquos naturalenvironments and natural resources

32

A number ofthese instruments contain elements that can contributeto achieving sustainable use of soil However noneof them is sufficient on its own While some of theexisting instruments could assist by promoting themanagement of some of the activities that can controlsoil degradation this role is not readily apparentexcept for those that include provisions specificallydirected to soil The following is a brief account of themain instruments

THE STOCKHOLM DECLARATION

The 1972 Stockholm Declaration on the Human Environ-ment

33

and its Action Plan for the Human Environmenthave had a continuing influence on international andnational environmental action over the past threedecades particularly through the enhancement of envir-onmental policies environmental planning and legalmeasures Improvements were made in 1982 with theintroduction of United Nations Environment ProgrammersquosNairobi Declaration which drew attention to the factthat soil degradation and desertification had reachedalarming proportions and were seriously endangeringliving conditions in large parts of the world

34

THE RIO DECLARATION AND AGENDA 21

The Rio Declaration on Environment and Development

35

reaffirmed the Stockholm Declaration on the HumanEnvironment and established the goal of a new andequitable global partnership through the creation ofnew levels of cooperation among States key sectors ofsociety and individuals It emphasized the need forStates to work towards international agreements toprotect the integrity of the global environmental

27

CCD Article 1(f )

28

See for example O Arnalds lsquoDesertification An Appeal for aBroader Perspectiversquo in O Arnalds and S Archer (eds)

RangelandDesertification

(Kluwer Academic Publishers 2002) at 5

29

CCD Article 1(g)

30

Ibid and see O Arnalds n 28 above

31

See WG McGinnies BJ Goldman and P Paylore (eds)

Desertsof the World An Appraisal of Research into their Physical and Bio-logical Environments A United States Contribution to the Interna-tional Hydrological Decade

(University of Arizona Press 1968) at177ndash196 R Cooke A Warren and A Gouldie

Desert Geomorpho-logy

(UCL Press 1993) See also O Arnalds

et al

Soil Erosion inIceland

(Soil Conservation Service and the Agricultural Institute ofIceland 2001)

32

See United Nations Environment Programme

Handbook of Envir-onmental Law

(UNEP 1996)

33

Stockholm Declaration on the Human Environment (Stockholm16 June 1972) printed in 11 ILM (1972) 1416

34

UNEP Nairobi Declaration (Nairobi 18 May 1982) clause 2 avail-able at lthttpwwwuneporgDocumentsDefaultaspDocumentID=70ampArticleID=737gt

35

United Nations Conference on Environment and Development(UNCED) Rio Declaration on Environment and Development (UNDoc ACONF1515Rev 1 1992) Preamble printed in 31 ILM(1992) 874



153

system and to enact effective environmental legislation(Principle 11) Chapters 8 38 and 39 of Agenda 21discuss international environmental law processes toassist in the global management of land degradation

36

THE WORLD CHARTER FOR NATURE

The World Charter for Nature

37

called on States tocooperate in the conservation of nature establishmethods to assess adverse effects on nature andimplement international legal provisions for conser-vation and the protection of the environment TheCharter states that the productivity of soils shall bemaintained or enhanced through measures that safe-guard their long-term fertility the processes of organicdecomposition and prevent erosion and all other formsof degradation

THE EUROPEAN SOIL CHARTER

The objective of the European Soil Charter adoptedby the Council of Europe in 1972 is for Member Statesto promote the protection of soils against damagefrom natural or human causes and their rehabilita-tion

38

The Charter is supplemented by the 1992 Coun-cil of Europe Soil Protection Policy which expands ona number of aspects of the Charter

THE WORLD SOIL CHARTER AND THE WORLD SOILS POLICY

The World Soil Charter

39

and the World Soils Policy

40

were prepared as linked instruments over 20 years agoto encourage international cooperation in the rationaluse of soil resources Since that time they have gener-ally been accepted as the global lsquosoft lawrsquo for soilAlthough they are not legally binding they have beeninfluential in raising the profile of soil conservation asan international environmental management issueas well as providing some relatively straightforwardguideline material for States to adopt in the prepara-tion of domestic laws and policies

CONVENTIONS

A number of multilateral agreements include provi-sions that could be used to promote the sustainable

use of soil but the provisions are generally tangentialto the needs of soil as such Many of them pre-date the1990s (ie the post-UN Conference on Environmentand Development period) are predominantly regionalin nature and do not establish specific rules for sus-tainable use of soils

41

Three international conventionsin order of relevance have a soil protection role theCCD the 1992 Convention on Biological Diversity(CBD)

42

and to a lesser extent the 1992 UnitedNations Framework Convention on Climate Change(UNFCCC)

43

There is also a group of regional conven-tions protocols and agreements that have a soil pro-tection role but only one of these is a specific soilinstrument ndash the Protocol for the Implementation ofthe Alpine Convention of 1991

44

in the Area of SoilProtection

45

This is the only legally binding interna-tional instrument in the world specifically directed tothe protection of soil

Convention to Combat Desertification

Thedefinition of lsquodesertificationrsquo under the CCD acknow-ledges that land degradation in arid semi-arid and drysub-humid areas of the world results from variousfactors including climatic variations and human activ-ities (Article 1) The CCD also acknowledges that aridsemi-arid and dry sub-humid areas together accountfor a significant proportion of the Earthrsquos land areaand form the habitat and source of livelihood for alarge proportion of its population The objective of theCCD is to prevent and reduce land degradation re-habilitate partly degraded land and reclaim desertifiedland particularly in countries that experience seriousdrought As it currently stands it is considered that theCCD is not an adequate instrument for the protection

36

UNCED Agenda 21 (UN Doc ACONF1516Rev 1 1992)printed in 31 ILM (1992) 881

37

World Charter for Nature

(UNGA Resolution 377 1982) printedin 22 ILM (1983) 455

38

Council of Europe

European Soil Charter

(Council of Europe1972) and see

Draft Revised Soil Charter

n 21 above

39

FAO

World Soil Charter (FAO 1982)40 UNEP World Soils Policy (UNEP 1982)

41 See for instance African Convention for the Conservation of Natureand Natural Resources (Algiers 15 September 1968) ConventionEstablishing a Permanent Inter-State Drought Control Committeefor the Sahel (Ouagadougou 1973) ASEAN Agreement on theConservation of Nature and Natural Resources (Kuala Lumpur 9 July1985) available at lthttpsunsitenusedusgapcelkltreatyhtmlgt(not yet in force) Each of these instruments contains articles thatapply to soil management and protection but without reference tosoil in an ecosystem context 42 Convention on Biological Diversity (Rio de Janeiro 5 June 1992) 43 United Nations Framework Convention on Climate Change (NewYork 9 May 1992)44 The Convention on the Protection of the Alps (Salzburg 7November 1991) not yet in force reprinted in 31 ILM (1992) 767available at lthttpfletchertuftsedumultitextsbh993atxtgt is focusedon pursuing lsquoa comprehensive policy for the preservation and pro-tection of the Alps by applying the principles of prevention paymentby the polluter (the ldquopolluter-paysrdquo principle) and cooperation aftercareful consideration of the interests of all the Alpine States theirAlpine regions and the European Economic Community andthrough the prudent and sustained use of resources rsquo (Article2(1)) The Convention includes soil conservation under its generalobligations in Article 2(2)(d)45 See Protocol for the Implementation of the Convention concern-ing the Protection of the Alps of 1991 in the Area of Soil Protectionn 21 above



154

and sustainable use of soil because it does not includeprovisions that adequately recognize soil bodies asecosystems and it does not contain other elementsto capture the full range of legal principles and pro-cesses to protect and manage soil for its sustainableuse As indicated earlier the geographic focus of thedefinition of lsquodesertificationrsquo to arid semi-arid anddry sub-humid areas under the CCD excludes impor-tant climatic regions of the world that experiencevery severe soil degradation processes This situationhas been acknowledged by the addition of annexesto the CCD to provide for accession to the Conven-tion for countries in non-arid areas that experiencedesertification and where significant parts of thecountries fall outside the climatic parameters of thedefinition This process of adding additional annexesenables the CCD to be applied to a larger geographicarea46

Convention on Biological Diversity Funda-mental to the CBD is the concern that biological diver-sity is being significantly reduced by human activitiesand this obviously includes the processes of lsquosoil de-gradationrsquo The CBD stresses the importance of and theneed to promote international regional and globalcooperation among countries and intergovernmentalorganizations and the non-governmental sector forconservation of biological diversity and the sustainableuse of its components (see Article 16) and for nationsto prepare strategies to implement the CBD For theCBD to take on an expanded more precise role in thesustainable use of soil substantial provisions wouldhave to be drafted for soil and included as a protocolto the CBD Such rules could focus on the ecologicalfunctions of soil that are essential for the conservationof biodiversity and the maintenance of human life

United Nations Framework Convention onClimate Change The UNFCCC recognizes the roleof terrestrial ecosystems as a sink and reservoir forpotential greenhouse gases and reflects concern thathuman activities have been substantially increasingthe atmospheric concentrations of greenhouse gases47

Two of the principal sources of greenhouse gases arechanges in land-use cover (eg forests) and land use(eg cultivation) Soil scientists have established that

soil is a major reservoir of the Earthrsquos carbon and thatthe main agricultural activities that play a role inemissions of greenhouse gases and initiate or ex-acerbate soil degradation are deforestation biomassburning cultivation using organic manure applyingnitrogenous fertilizers and livestock grazing48 Excessivevegetation clearance a principal cause of soil degrada-tion is one of the key concerns of the UNFCCC Soildegradation exacerbates the emission of gases fromterrestrial and aquatic ecosystems to the atmosphereAccelerated wind and water soil erosion on a globalscale is the principal soil degradation process Some1643 million hectares are affected worldwide of which250 million are affected by strong or extreme formsof soil erosion49 While the UNFCCC does provide forchanges to the terrestrial environment it is not con-sidered to be the most appropriate international legalvehicle to address soil protection because it presentlyhas a primary focus on making changes in the industrialsector rather than the non-industrial and agriculturalland-use sectors

The Kyoto Protocol50 under the UNFCCC was finalizedin 1997 and contains a responsibility to promotesustainable forms of land use in the light of climatechange characteristics It specifically recognizes theneed to expand and preserve soil carbon sinks andimprove agricultural practices in countries where asignificant proportion of the emissions are related tothe clearing of vegetation for agriculture51

NATIONAL SOIL LEGISLATION

Legislation has been used for about the past 60 yearsin many countries in a piecemeal fashion to managespecific types of soil problems (eg soil erosion) tocontrol land-use activities that directly cause soildegradation problems (eg over-grazing of cattle andsheep) and to indirectly control soil managementproblems (eg through environmental planning andland-use allocation) The 1980s and 1990s witnessed agrowth in a broad range of environmental law at theinternational and national levels to manage the nat-ural environment However soil law reform has notbeen prominent in this context An examination ofnational legal and institutional frameworks from over100 countries indicates that most countries still

46 See for instance CCD Annex III Regional ImplementationAnnex for Latin America and the Caribbean available at lthttpwwwunccdint conventiontext annex3engphpgt47 See C Rolfe Sink Solutions Background Analysis for the JointWest Coast Environmental LawDavid Suzuki Foundation Report ndashTaking Credit Canada and the Role of Sinks in International ClimateChange Negotiations (West Coast Environmental Law 2001)German Advisory Council and Global Change (GBGU) The Accountingof Biological Sinks and Sources under the Kyoto Protocol ndash A StepForward or Backwards for Global Environmental Protection (GermanFederal Government 1998)

48 See SA El-Swaify et al Sustaining the Global Farm ndash StrategicIssues Principles and Approaches (International Soil ConservationOrganization (ISCO) Department of Agronomy and Soil ScienceUniversity of Hawaii at Manoa Honolulu 1999) at 18 49 LR Oldeman RT Hakkeling and WG Sombroek World Map of theStatus of Human-Induced Soil Degradation (ISRICUNEP 1991)50 The Kyoto Protocol to the United Nations Framework Conventionon Climate Change (Kyoto 11 December 1997)51 See C Rolfe and all German Advisory Council on Global Changen 47 above



155

approach the management of soil in a fragmentedmanner The actual number of laws is substantiallygreater than the number of individual countries thathave promulgated such legislation as some countrieshave multiple mechanisms within their soil legislationframeworks52 Some jurisdictions such as the UKhave a variety of mechanisms that cover a broad rangeof functions including soil planning access organicfarming practices nitrate-sensitive areas and soilrestoration53 On the other hand federally organizedcountries often have a system where each State orprovince has its own soil legislation and supportivelegal mechanisms54 The types of legal mechanismsused over many decades to protect and manage soilgenerally including acts decrees resolutions ordin-ances codes regulations circulars decisions ordersand by-laws still remain appropriate but they needto be applied in more inventive ways to manageeffectively the soil in an ecosystem context55 Soil con-servation has been the principal area of law concernedwith land-degradation control56

Soil legislation includes laws that have primaryresponsibility for soil conservation soil and waterconservation grazing control and land rehabilitationThey are generally characterized by provisions tomitigate and manage soil erosion and soil degradationmanage farm water supplies and generally conservesoil resources Individual States have adopted a vari-ety of approaches to frame domestic soil legislationand to deal with specific soil protection and manage-ment problems The different approaches may besummarized under lsquosoil legislationrsquo categories that arebased on the principal intent of the individual laws57

being their specific legislative role in soil protectionincluding control of lsquosoil erosionrsquo control of lsquosoil pol-lutionrsquo prevention of lsquosoil degradationrsquo and a broadrole in lsquosoil conservationrsquo Comprehensive provisionsfor soil protection and management can also be integ-rated in legislation that sets out responsibilities forthe protection and management of other aspects ofthe environment (such as forests water biodiversity

desertification) In general soil law has provisions forproperty planning design and construction of erosioncontrol measures establishing community advisorygroups land capability planning planning catchmentmanagement schemes compliance and enforcement58

This area of law has had applications to large areas ofagricultural land around the world However it hasnot been used effectively to control land-use activitiesthat contribute directly to soil degradation (such asvegetation depletion from over-grazing cultivation ofland not physically suitable for cultivation and re-habilitating degraded land)59

CAPACITY OF SOIL LEGISLATION TO MANAGE AND PREVENT SOIL DEGRADATION The capacity of a legal and institutional framework tomanage and prevent soil degradation can be measuredby the ability of a legislative and institutional systemto achieve sustainable use of soil60 The lsquocapacityrsquo isdetermined by the number and type of essential legaland institutional elements present in a legal instru-ment in a format that enables the key issues of the sus-tainable use of soil to be identified and with the legaladministrative and technical capability in the particu-lar instrument to take some form of effective actionIn some jurisdictions the capacity will be direct andobvious In other places it will exist in a format thatenables some form of indirect action Capacity is alsorepresented in the form of legal rights the type oflegal mechanisms and importantly the number andcomprehensiveness of the essential elements andtheir functional capabilities Most key soil managementissues are multifactorial (ie many include a socio-logical a legal and a technical component) so it isobvious that generally more than one piece of environ-mental legislation (along with detailed regulations)will be needed to manage effectively each individualsoil degradation issue A variety of types of legal andinstitutional elements and mechanisms may also berequired This reinforces the necessity to analyse theexisting environmental legislation (if any) at each levelin any region or State in order to ascertain currentmanagement regimes The information generated bysuch an analysis may also be used as a guide as tothe type of legislative and institutional elementsthat may be necessary to include within any new

52 For example a principal act is often accompanied by a code aregulation or an ordinance53 See also Norway which has a soil legislation framework con-sisting of a 1999 decree relating to incentives for alternative treat-ment of the soil a 1999 decree relating to planning of the use offertilizing substances a 1998 decree relating to management ofanimal manure a 1995 decree relating to waste sludge manage-ment a 1990 decree relating to incentives for measures for theprevention of soil erosion see the website available at lthttpwwwgooglecomausearchhl=enamplr=ampie=UTF-8ampsafe=activeampq=Norsk+LOVTIDEND+ampspell=1gt 54 For instance USA Australia Italy India55 See ID Hannam and BW Boer n 2 above at 29 and seeJG Sheals n 3 above56 ID Hannam and BW Boer ibid at 2757 As identified from the legal databases ECOLEX (available atlthttpwwwecolexorggt) and FAOLEX (available at lthttpfaolexfaoorgfaolexgt)

58 See for instance the Nepalese Soil and Water Conservation Act(1982) and USSR Decisions Concerning Urgent Measures for SoilProtection against Wind and Water Erosion (1983) No 27 Article156 59 ID Hannam and BW Boer n 2 above at 2760 With regard to desertification CCD Article 29(2) refers to theneed for long-term integrated strategies that focus on affectedareas on improved productivity of land and the rehabilitation con-servation and management of land and water resources leading toimproved living conditions at the community level



156

legislative regime that may be drafted for each level ofsoil degradation control and management

LEGAL AND INSTITUTIONAL ELEMENTS REGARDING SOILThe legal and institutional lsquoelementrsquo for soil is definedas a basic essential component of a legal and institu-tional system61 An element is a principle or suggestedrule or direction of conduct that may be used in itsexisting form or modified to perform the role of a legalmechanism62 or as a legal principle (a rule of conduct)in legislation An element can also be used singularlyor in combination with other legal mechanisms orprinciples to enable or invoke some form of legallybased action to achieve the sustainable use of soil63

An individual law can include a number of legal mech-anisms in a well thought-out structure that gives anorganization the power it needs through its executiveand administrative branches to achieve the sustain-able use of soil It is also possible that these elementsmay be distributed among a number of individual lawswithin a comprehensive national legal and institu-tional system The lsquoessential elementsrsquo referred to hereare derived through an evaluation of legal and ecolo-gical principles where in combination they are aimedat achieving a desired level or standard of perform-ance in sustainable soil management64

The legal and institutional elements can be used ineither or both of two roles

bull To assist in the evaluation of an existing law orlegal instrument (to determine its capacity to meet

certain prescribed standards of performance forthe sustainable use of soil)65 It may be necessary toevaluate a law to determine its inherent ability toachieve the sustainable use of soil Depending onthe assessed ability of the law to achieve thesestandards new or additional elements may beformulated

bull To guide the reform of an existing soil law or todevelop new legislation for the sustainable use of soilEach legal and institutional element must have thecapacity to achieve a desired or prescribed level ofecological management or standard for soil

The manner and degree in which an lsquoessential ele-mentrsquo is applied will vary according to the particulartype of legal mechanism concerned and its expectedrole in a particular jurisdiction For example an inter-national legal instrument may have a provision fordispute resolution but the actual implementationof this provision within a State might not rely on orbe influenced by the existence of similar provisionswithin a law of the State

SOIL MANAGEMENT FUNCTIONS AND ACTIVITIESSoil management issues themselves are reasonableindicators as to what areas of environmental law willbe relevant in a region affected by soil degradation Ineffect many administrative scientific and statutoryfunctions are involved in soil management Some ofthe principal functions to manage soil degradationinclude

bull establishing links between different sectoral agenciesbull preparing and implementing national and regional

strategies and policies for soil managementbull taking action to overcome and reduce rural povertybull control of water and land pollution activitiesbull balancing soil and water use and managing ecosys-

tems for future generationsbull deriving sound ecological and technical practices

for soil managementbull establishing effective communication capacity-

building and awareness programmesbull establishing performance reporting and monitoring

the effectiveness of soil management schemesbull designing and implementing practical soil manage-

ment schemesbull developing and implementing effective environ-

mental legislation

61 For a more comprehensive discussion on the concept of an lsquoessentialelementrsquo and its practical application see ID Hannam A Legal andInstitutional Framework for the Management of Water and Land inSouth East Asia and the Peoplersquos Republic of China A MethodologyResearch Report (International Water Management Institute ColomboSri Lanka forthcoming) The methodology is based on the applica-tion of 17 lsquolegal and institutional elementsrsquo regarded as essential withina legal system to recognize soil-degradation processes effectivelyand with a capability to manage these processes The lsquoessentialelementsrsquo include general intent jurisdiction responsibility objectivesdefinitions duty of care hierarchy of responsibility institutional policyeducation research community participation land-use planningland management finance enforcement dispute resolution62 Such as a direct statutory function or an administrative function63 An essential element may also be referred to as a lsquolegal conceptrsquowhich is a term that has a specific meaning in a legal context seeD Bodansky lsquoCustomary (and not so Customary) InternationalEnvironmental Lawrsquo 3(1) Indiana Journal of Global Legal Studies(1995)105 who discusses the use of non-legal norms in interna-tional environmental law Many of these are also applicable tonational laws such as the Environmental Code of Sweden 1999Chapter 564 See ID Hannam Legal and Institutional Frameworks for Waterand Land Management with Particular Reference to MarginalAreas in Selected Countries in South and South East Asia andthe Peoplersquos Republic of China (International Water ManagementInstitute Colombo Sri Lanka 2002)

65 lsquoLawrsquo in this context means a body of law enacted by a legislat-ure eg an act decree regulation or other formal legal instrumentthat is legally enforceable It can include agreements or covenantsthat are expressed to be legally binding



157

Further the soil management functions that are criticalfor the management of soil degradation can be classifiedinto a number of activities that give direction as towhat specific types of legislation will be needed for soilmanagement decision-making systems The activitiesare summarized as

bull natural resource activities ndash eg soil managementactivities (cultivation fertilizer application landrehabilitation sustainable land use managingcontaminated sites) and ecosystem management(water and soil interactions ecosystem function-ing ecosystem diversity)

bull administrative activities ndash eg soil administrationactivities role of committees departmental struc-tures and responsibilities duty of care activities ofspecial councils advisory bodies and intergovern-mental and intra-governmental functions

bull technically based activities ndash eg activities related tosoil planning land-use zoning establishing soil qualitystandards soil survey and soil classification

bull knowledge-based activities ndash eg activities relatedto soil research and investigation and communityparticipation education and extension activities

bull socially based activities ndash eg womenrsquos involve-ment in agricultural land use and managementspecial education and assistance for disadvantagedgroups and poverty alleviation programmes

bull legally based activities ndash eg statutory rules legalobligations (organizations individuals groups)land-use rights limits of use regulatory respons-ibilities legal standards enforcement (monetaryand non-monetary) and dispute resolution (courtsmediation arbitration counselling)

The actual legal and institutional elements that areessential for implementing the functions and activitiesfor the management of soil degradation and thepromotion of sustainable soils are generally too broadand complex to be found within one single type ofenvironmental law or even within one regime ofenvironmental law66 They exist across a very widerange of laws associated with the management of the

natural environment67 A system of laws of this typewill contain the legal elements legal mechanisms andecological and scientific concepts definitions andstandards that are needed to manage multifunctionaland multidisciplinary soil management issues andcould be adapted in order to take an ecosystem-basedapproach Some countries may have a substantialbody of supplementary law statutory decisions legalcodes orders and rules to support the implementationof the individual primary laws The following areas oflaw can be seen as being indirectly or directly applic-able for achieving protection of soil from degradation

bull constitutional law (sets out basic legal and humanrights)

bull environmental-planning law (environmental policyland zoning and land allocation)

bull pollution-control law (water quality and pollutionstandards)

bull forestry law (planning and management of forestland and watershed management)

bull plantation and reafforestation laws ( land-rehabil-itation methods)

bull soil-conservation law (soil erosion control andmanaging soil erosion hazards)

bull water-conservation law (watershed protection andwater classification)

bull water-use law (water allocation water supply andirrigation schemes)

bull environmental-protection law (environmental impactassessment and setting of environmental standards)

bull mining law (environmental control over miningactivities and land rehabilitation)

bull indigenous peoples and customary law (traditionalland-use rights and preservation of traditionalknowledge)

bull agricultural land-use law (controls covering over-cropping and livestock pesticide and chemicalapplications)

bull agriculture reform (distribution of agricultural landirrigation schemes and resettlement schemes)

bull protected-area law (national parks and wildlifelaw and other legal regimes to protect natural andsensitive landscapes)

bull land-administration and land-tenure law (landallocation land-use rights leaseholder agreementsand conditions of land use)

bull legislation that provides for womenrsquos rights pov-erty alleviation financial management

66 A lsquoregimersquo is defined here as a group of laws that focus on onespecific aspect of the environment eg soil conservation or pollutioncontrol Because of the many ecological administrative and scientificaspects associated with the management of the environment per seit is now common within the discipline of environmental law to link agroup of laws by an enabling law so as to give maximum protection toparticular aspects of the environment Some countries have devel-oped comprehensive framework laws often combining a collection ofolder laws into one coherent regulatory system For instance see NewZealand ndash Resource Management Act (1991) New South WalesAustralia ndash Protection of the Environment Administration Act (1991)(available at lthttpwwwaustliieduaucgi-bindownloadcgidownloadaulegisnswconsol_act poteaa1991485rtfgt) and New South WalesAustralia ndash Protection of the Environment Operations Act (1997)(available at lthttpwww austliieduauaulegisnswconsol_actpoteoa1997455gt)

67 For example in the Asian region see T Mottershead (ed) Envir-onmental Law and Enforcement in the Asia-Pacific Rim (Sweet andMaxwell Asia 2002) DG Craig NA Robinson and K Kheng Lian(eds) Capacity Building for Environmental Law in the Asian andPacific Region Approaches and Resources (Asian DevelopmentBank 2002) chapter 20 (Biological Diversity) P Wilson et allsquoEmerging Trends in National Environmental Legislation in Develop-ing Countriesrsquo in S Lin and L Kurukulasuriya (eds) UNEPrsquos NewWay Forward Environmental Law and Sustainable Development(UNEP 2002) at 185ndash226



158

Recent studies into the capacity of the legal andinstitutional systems of various States to manage soildegradation issues indicate that national legal andinstitutional systems are generally inadequate to dealeffectively with these issues especially in developingcountries where pieces of soil legislation generally donot contain operational provisions to manage specificfield soil-degradation problems68 In general nationallegislation relating to soil degradation is reasonablywell represented by legal and institutional elementsthat convey a general intent establish the jurisdictionof interest set out the basic responsibilities to landmanagement or establish a hierarchy of responsibilityto manage soil degradation

These elements are generally found in the legislationfor both developing and developed States but in thecase of the developed States the procedures forimplementation are generally more comprehensiveThe least-represented elements of law relating to soildegradation include those of objectives definitionsland planning land management research educationcommunity participation and dispute resolution

One of the main challenges for soil conservation isthat society in general must improve its awarenessand knowledge of the sustainable use of soil In particu-lar a change in attitude of human beings about thevital importance of soils is required accepting that soilis a non-renewable resource at least when consideredover the span of two to three human generations andtaking the steps to build the foundations of an interna-tional front against soil degradation A recommendedgeneral range of legal principles for national soil lawfor which specific elements can then be developedwould include (at least) principles that convey

bull a comprehensive statement of the purposes of thesoil legislation

bull goals and objectives with a mandate for ecologicallysustainable soil

bull preparation of national soil strategy and policyspecial codes of practice and soil sustainabilityindicators

bull a statement of the physical and ecological limits ofsoil

bull a mix of regulatory and non-regulatory meansincluding land-management incentive and supportprogrammes and community soil advisory groups

bull soil conservation and management on all classes ofland with provisions to develop plans of manage-ment that are based on sustainable soil criteria andcontain ecologically sustainable soil standards

bull contribution by the soil law to the conservationand management of natural resources

bull provisions to protect biodiversity and soil ecologicalvalues

bull a geographic perspective for soil protection andmanagement including State regional and localsoil conservation plans

bull equitable distribution of responsibilities among theactors involved in soil conservation including theState minister administrators advisory bodiesofficials and the community

bull proper evaluation of land resources and mappingof soil degradation preparation of soil resourcesplans soil-capacity mapping and the implementa-tion of soil-management plans at the national prov-incial and local levels

bull development and implementation of a variety ofsoil conservation research and investigation pro-grammes and

bull formal State action where prescribed standardsof soil use are not being met and where therehas been a particular contravention of the legisla-tion (including statutory notices that specifysoil-rehabilitation requirements and techniquesprocedures for prosecution and cross-complianceactions)69

The well being of human society perhaps its survivalmay depend on a conscious effort to slow down therate of development and modification of biologicaldiversity In order to achieve this an ecological approachis required towards law and policy making in generaland land-use decision making in particular70 Withregard to the soil this means developing legal andinstitutional systems that enable an ecosystem-basedapproach to be applied in all aspects of soil protectionand management Such a process is likely to have adifferent outcome from a process that relies merelyon the application of the conventional scientific andobjective principles of ecology to protect and managesoil This is because the ecosystem approach studiesthe relationship between soil bodies as living ecolo-gical communities and the environment An effectivelegal system for the protection of soil will thereforedepend on the selection of appropriate ecologicalconcepts and the development of a legal structure

68 This assertion is based on the outcome of the analysis of existingnational soil legal frameworks (legislation from around 100 coun-tries) (see ID Hannam and BW Boer n 2 above) as well asexamination of a wider body of environmental law related to waterand land management Around 100 legal instruments from the Asianregion were investigated in a study by Hannam (see ID Hannamn 64 above) The underlying bases of analysis and comparison werethe 17 essential elements mentioned in ID Hannam n 61 aboveThe countries examined included the Peoplersquos Republic of ChinaLaos Peoplersquos Democratic Republic Peoplersquos Republic of Bangla-desh and the Republic of the Philippines

69 ID Hannam and BW Boer n 2 above section 4 subsection 5at 4370 For early arguments along these lines see BW Boer lsquoSocial Eco-logy and Environmental Lawrsquo 1 Environmental and Planning LawJournal (1984) 233



159

with the appropriate elements to implement theseconcepts71

THE CCD AND NATIONAL LEGISLATIONThe principal ways to combat desertification are out-lined in the CCD72 and include various sustainableland-use activities that involve the sustainable use ofsoil The activities are aimed at the prevention andorreduction of land degradation rehabilitation of partlydegraded land and the reclamation of desertified landTo implement successfully these international prin-ciples requires national legislative systems with thecapability of recognizing the physical processes ofdesertification as well as the capability to manage theprocesses effectively To date the only specific deser-tification law that has been enacted is in the PeoplersquosRepublic of China in 200173

The objective of the CCD is to combat desertificationand mitigate the effects of drought through effectiveaction at all levels74 These actions are to be supportedby international cooperation and partnership arrange-ments in the framework of an integrated approachwhich is consistent with Agenda 21 with a view tocontributing to the achievement of sustainable devel-opment in affected areas Reaching this objective willinvolve long-term integrated strategies that focussimultaneously in affected areas on improved pro-ductivity of land and the rehabilitation conservationand sustainable management of soil resources75 Inorder to implement the CCDrsquos provisions parties areguided by various principles which incorporate theobjective of sustainable use of soil including thefollowing

bull Ensuring that decisions on the design and imple-mentation of programmes to combat desertificationandor mitigate the effects of drought are takenwith the participation of populations and localcommunities and that an enabling environment iscreated at higher levels to facilitate action atnational and local levels

bull The parties should in a spirit of international soli-darity and partnership improve cooperation andcoordination at subregional regional and inter-national levels and better focus financial humanorganizational and technical resources where theyare needed

bull The parties should develop in a spirit of partner-ship cooperation among all levels of governmentcommunities non-government organizations andland holders to establish a better understanding ofthe nature and value of land and scarce waterresources in affected areas and to work towardstheir sustainable use

bull The parties should take into full consideration thespecial needs and circumstances of affected devel-oping country parties particularly the least devel-oped among them76

An examination of the CCD in terms of the expectedcapabilities of national laws to meet these require-ments of the Convention produces some telling res-ults First research on the occurrence of the elementsneeded in national legislation to meet the obliga-tions of the particular articles of the CCD77 showsthat the CCD is quite demanding on State legislativesystems particularly in the areas of the preparationof national action plans78 information collectionanalysis and exchange79 research and development80

transfer acquisition adaptation and development oftechnology81 and capacity building education andpublic awareness82 With regard to the specific ele-ments the most demanding areas of State legislativesystems include land-use planning responsibilitiespolicy development and review institutional arrange-ments community participation role researchresponsibilities education responsibilities and a gen-eral responsibility and commitment to the objective ofdesertification control and management The CCD isless demanding on State legislative systems in thefollowing areas the basic approach to action plans83

sub-regional and regional action programmes84 inter-national cooperation85 support for the elaborationand implementation of action programmes86 andregional implementation annexes87

Second a comparison between assessed requirementsof a national desertification law as indicated by theCCD against actual State situations reveals that ingeneral the legislative situation in most States is notadequate to meet the expected requirements as set

71 ID Hannam and BW Boer n 2 above section 2 subsection 8at 1772 CCD Article 1(g) 73 The Law of the Peoplersquos Republic of China on Desert Preventionand Transformation (2001)74 CCD Article 2(1) and (2)75 Ibid

76 Ibid Article 3(a)ndash(d)77 This analysis was carried out using the legal and institutionalmethodology as described in ID Hannam n 64 above The pres-ence or absence of the elements is an indicator of the capacity ofthe relevant legislation to address soil degradation78 CCD Article 1079 Ibid Article 1680 Ibid Article 1781 Ibid Article 1882 Ibid Article 1983 Ibid Article 984 Ibid Article 1185 Ibid Article 1286 Ibid Article 1387 Ibid Article 15



160

out by the CCD88 The legal and institutional areas inwhich the CCD is most demanding at the nationallevel generally coincide with the least-represented ele-ments in the national legislative systems Of greatestconcern is the generally poor representation at thenational level in the areas of policy making educationcommunity participation land-use planning landmanagement and research89 This general pattern canbe used to help establish a strategy for the improve-ment of national legislative systems to manage andcontrol desertification

COMMITTEE FOR THE REVIEW OF THE IMPLEMENTATION OF THE CONVENTIONThe Conference of the Parties (COP) of the CCD by itsdecision 1COP5 established the Committee for theReview of the Implementation of the Convention(CRIC) to assist the COP in regularly reviewing theimplementation of the Convention in light of experi-ence gained at the national subregional regional andinternational levels and to facilitate the exchange ofinformation on measures adopted by the parties pur-suant to Article 26 of the Convention90 The objectiveof the CRIC is to draw conclusions and to propose tothe COP concrete recommendations on further stepsin the implementation of the Convention91 Withregard to the adequacy of national legislation to man-age and control desertification the CRIC process hasfound that national legislation is generally lacking inits ability to achieve this objective and on this basisfurnished a number of important recommendationsfor the immediate improvement of the capability ofnational legislative and institutional systems Theimprovements needed in the legislative systems fordesertification management will also directly benefitthe sustainable use of soil (and therefore promote theargument for an ecosystem-based approach as advoc-ated in this article) as follows92

bull A compendium of laws is needed to deal withthe commitments entered into by States under

the extensive requirements of the Convention Theneed for more coherent legislative codes policyinstruments and strategic frameworks dealing withsustainable land management emerged as one ofthe main challenges and opportunities for the CCDprocess including a stock-taking exercise on com-pliance of national legislation with the CCD

bull Incentive systems land-tenure regimes and protec-tion codes for natural resources should be reviewedwhere necessary to integrate aspects relating toland degradation desertification and droughtrecognizing the role of the CCD and to emphasizepreventive measures

bull Despite the fact that progress has been madeon environmental legislation an assessment ofthe impact in terms of enforcement is necessaryto evaluate its effectiveness A study on thistopic might help to ascertain how legal measureshave helped to strengthen the fight againstdesertification

bull Law enforcement and harmonization were men-tioned as a potential bottleneck due to the limitedhuman resources available to translate laws effect-ively into concrete activities Country partiesshould specify their needs in terms of capacitybuilding and training schemes to address this con-cern effectively including at local level

bull To promote sustainable livelihoods in affectedareas and stimulate the involvement of the privatesector in combating desertification legislativemeasures should address sustainable land-userights and secure investments

Encouragingly following this first CRIC meeting anumber of countries have expressed interest in review-ing the capability of their national legislative systemsto meet the Conventionrsquos requirements for individualparties So far this has included Uruguay BelarusUkraine China Kyrgyzstan and Kazakhstan93

IUCN COMMISSION ON ENVIRONMENTAL LAWIn April 1999 the IUCN Commission on EnvironmentalLaw (CEL)94 initiated the establishment of a SustainableSoils Specialist Group (SSSG) to investigate thenational and international dimensions of the legalprotection of soils The impetus for the SSSG arose

88 ID Hannam Report to IUCN Environmental Law Centre of theJoint IUCN Environmental Law Commission and Secretariat ofCCD lsquoDesertification Lawrsquo Project (IUCN Environmental Law CentreBonn December 2002) and ID Hannam n 64 above 89 For instance as generally found in relevant legislation from theLaos Peoplersquos Democratic Republic and Peoplersquos Republic ofBangladesh While the new Chinese Desert Prevention and Trans-formation Law (2001) (see n 73 above) contains all of the primaryelements discussed here it is lacking in procedural provisions forimplementation This is of course a common failure in the provisionsof environmental legislation in many developing countries 90 See CCD Decision 1COP5 (ICCDCOP(5)11Add1 2001)91 CCD Secretariat Report of the Committee for the Review of theImplementation of the Convention Report of the Committee on itsFirst Session (ICCDCRIC (1)10 2002)92 Ibid paras 124ndash128

93 The second meeting of the CRIC is scheduled for August 2003in conjunction with CCD COP-6 in Cuba This will present a goodopportunity to review the progress of such legislative reforms94 The Commission on Environmental Law (CEL) is a network ofenvironmental law and policy experts from all regions of the worldwho volunteer their knowledge and services to IUCN activitiesespecially to those of the IUCN Law Programme CEL functions asan integral part of the IUCN Environmental Law Programme whichincludes the Commission and the Environmental Law Centre Seethe website available at lthttpwwwiucnorgthemeslawgt



161

out of contacts of CEL members with the main inter-national soil science organizations that were and con-tinue to be concerned about the need for improvedlegal protection of soils on a global basis The IUCNWorld Conservation Congress held in AmmanJordan in October 2000 passed a resolution that gavethe imprimatur of the IUCN to investigate soil legalissues further Specifically the resolution

requests the Environmental Law Programme in itsdevelopment of legal guidelines and explanatory materialand investigation into a global legal instrument for the sus-tainable use of soils to pay particular attention to the eco-logical needs of soil and their ecological functions for theconservation of biodiversity and the maintenance of humanlife95

The general charter of the SSSG has been to prepareguidelines and explanatory material relating to prin-ciples and elements of national legislation and policy toassist States to manage their specific soil-degradationand land-degradation problems and to investigate theneed for and feasibility of further developing inter-national environmental law in this field in particularthrough an international instrument for the sustain-able use of soil

The principal activities of the SSSG so far havefocused on the preparation of the report entitled Legaland Institutional Frameworks for Sustainable Soils96

This report considers the treatment of soil-relatedissues in both national and international law anddraws conclusions on needs at both levels It fleshesout the issues through specific examples evaluatescurrent efforts and provides initial answers to some ofthe difficult questions that need to be tackled by thecommunity Importantly it lays out the foundationfor future work and dialogue to deal with universallyrecognized soil-degradation problems through variousrecommendations97 In keeping with the need for on-going development of self-help products for individualStates to improve their domestic management of soilsthe SSSG has moved into a second stage of majordocument preparation with the Guide to Drafting SoilLegislation98 This guide is intended to be used as aresource document that States can draw on to reformexisting legislation to protect and manage soil to setthe direction to the drafting of new national legislationfor the sustainable use of soil and for the establishmentor reform of associated institutions The term lsquosoillegislationrsquo generally encompasses legislation that isspecifically directed to management of soil erosioncontrol of soil pollution prevention of soil degradation

and soil conservation However the guide recognizesthat comprehensive provisions for soil protection andmanagement can also be integrated into legislationthat sets out responsibilities for the protection andmanagement of other related aspects of the environ-ment such as forests and water The basis of the guideis a series of generic lsquolegal and institutional elementsrsquowhere each element is a principle suggested rule ordirection of conduct that may be used in its existingform or modified to perform the role of a legal mechan-ism The elements set out in the guide are derived froman evaluation of legal and ecological principles and areaimed at achieving a desired level or standard of per-formance in sustainable soil management Specificallythey take into account the key issues raised at the 2002World Summit on Sustainable Development in rela-tion to poverty food security and land degradation99

NATIONAL LEGAL AND INSTITUTIONAL FRAMEWORKS FOR SUSTAINABLE SOIL

There are a variety of ways available for States toapproach the task of a detailed legal and institutionalanalysis and design of an appropriate legal and insti-tutional system that provides for the effective manage-ment of soil taking an ecosystem-based approach100

Strategies for the development of legal and institu-tional arrangements for sustainable soil can be basedon either regulatory or non-regulatory elements Thepreference in approach will vary between Statesaccording to their physical sociological and economiccharacteristics The non-regulatory strategy is charac-terized by elements that focus on the followingextension education and awareness programmes forsustainable soil use ecosystem research assessmentand monitoring of soil use financial support forresearch and extension extensive use of communityparticipatory facilities development of ecologically

95 World Conservation Congress (Amman 2000) Resolution 259available at lthttpwwwiucnorgammancontentresolutionsres59pdfgt96 ID Hannam and BW Boer n 2 above97 Ibid at 87 98 IUCN World Conservation Union Environmental Law and PolicyPaper (IUCN forthcoming)

99 See Report of the World Summit on Sustainable DevelopmentJohannesburg Johannesburg Declaration of the World Summit onSustainable Development (ACONF19920 4 September 2002)Resolution 1 paras 11 13ndash14 18 21 and 25 and Plan of Imple-mentation ibid Resolution 2 Chapters IV V X and XI 100 In some circumstances a comprehensive soil policy may beregarded as being more beneficial or politically convenient in help-ing to achieve a sustainable use of soil objective For instance seeNew Zealand Ministry for the Environment Sustainable Land Man-agement A Strategy for New Zealand (Ministry for the EnvironmentWellington 1996) UNEP and the European Environment AgencyDown to Earth Soil Degradation and Sustainable Development inEurope A Challenge for the 21st Century Environmental IssueSeries No 16 (UNEP 2000) and UK Department of EnvironmentTransport and the Regions Draft Soil Strategy for England A Con-sultation Paper (Minister for Agriculture Fisheries and Forestry2001)



162

sustainable land-use standards and practices anddevelopment of soil-management protection andincentive-based programmes

The regulatory strategy is characterized by elementsthat focus on the following development of statutorysoil-use plans that prescribe legal limits and targets ofsoil and land use (eg cultivation practices vegetationretention levels) issue of licences or permits to con-trol soil use (these would prescribe use entitlementsrelating to soil restoration habitat protection organicmatter levels etc) land-use agreements between theState and individuals that set binding soil-use standardsthe use of restraining notices where sustainable-uselimits are exceeded and sinks are degraded and pro-secution for failure to follow prescribed standards ofsustainable soil use

Following from the two basic strategies two types ofapproaches can be taken to determine the possibilitiesfor alternative legal and institutional frameworks forsustainable soil management The first approach isbased on a short-term time frame for implementationIt considers minimal change to an existing legislativeregime a minor reform of soil-use policy definitionsand concepts minimal change to related laws andsome rearrangement of institutional and humanresources This approach may not provide all the legaland institutional measures needed to manage allaspects of soil The second approach considers amedium- to longer-term time frame for implementa-tion and involves substantial reform of existing lawspolicies and institutional and sectoral changesEmphasis is on integrated resource management Thisapproach would go a long way to providing most of thelegal and institutional elements necessary to achievesustainable use of soil

Based on these approaches there are several forms inwhich national legal and institutional frameworks forsustainable soil use may be developed The elementsof the frameworks set out below while based on provi-sions of various pieces of current legislation are forthe most part in the form of future scenarios for thedevelopment of sustainable soil legislation The fol-lowing three scenarios are examples of the forms inwhich these soil sustainability frameworks could takeshape

MINOR AMENDMENT TO EXISTING LAWS This framework may involve making simple amend-ments to existing laws (such as forestry or soil conser-vation laws) to define more clearly the role andresponsibilities of existing institutions for soil man-agement Minimal amendments can improve theaccountability of a law by introducing for example a

set of lsquosustainable soil managementrsquo objectives intothe respective law procedures that define the role andresponsibilities of the administrators to the protectionand conservation of soil ecological processes proced-ures to develop a State lsquosustainable soil managementstrategyrsquo with accompanying environment protectionpolicy101

SUBSTANTIAL AMENDMENT OF AN EXISTING LAND-MANAGEMENT LAW TO IDENTIFY ADEQUATELY THE ROLE ACTIVITIES AND INTERESTS OF A STATE IN MANAGEMENT OF SOIL This framework may involve the importation of keylsquosustainable soilrsquo elements into an existing law thatcreate a responsibility to evaluate and assess soilecosystems carry out research into soil resource andecosystem management plan and manage naturalresources and land-management systems develophuman- and ecosystem-management policies enablepublic participation in the development of soil policyand decision making and support and protect therights and knowledge of human beings to a healthysoil ecological environment102

INTEGRATED lsquoSUSTAINABLE SOILrsquo LAW

The adoption and successful implementation of this thirdframework relies on a major attitude shift towardsmanagement of the soil ecosystem It would generallyfeature provisions to protect the natural ecologicalrights of soil comprehensively evaluate and assesssoil and vegetation ecosystems develop specialistknowledge for soil ecological decision making ensure

101 For instance see Soil and Water Conservation Law (1991) of thePeoplersquos Republic of China where it has been suggested that moreprocedures be included in this law to implement the concept oflsquoimprovement of the ecological environmentrsquo which is expressed inArticle 1 as an objective of soil conservation see ID Hannamn 64 above at 152102 For instance see the Icelandic soil conservation law Log umlandgraedsla (1965) to include the concept of ecosystem protec-tion for Icelandrsquos rangeland areas as advocated in ID HannamReport to the Government of Iceland on Reform of Soil ConservationPolicy and Legislation for Sustainable Land Management (Depart-ment of Land and Water Conservation Parramatta Australia 1996)See also the Thailand Land Development Act (1983) availableat lthttp2031522333lawtextlawpubeo012texthtmgt (in Thai)to cater for a greater range of soil and water conservation pro-grammes currently implemented by the Land Development Depart-ment but not catered for in the legislation as advocated in IDHannam Report to the Government of the Kingdom of Thailand onReform of Land Development Legislation and Policy (Department ofLand and Water Conservation Parramatta Australia 1998)



163

participation of communities in land-use decision mak-ing form community soil management and advisorygroups enable community-based enforcement anddispute resolution and enable legislative and policyreview and amendment on a regular basis accordingto the ecological needs of soil103

Given the wide range of legal and institutional issuesinvolved in achieving sustainable management of thesoil environment this framework would be very com-prehensive and substantial institutional reorganiza-tion may be involved for it to be effective It placesemphasis on elements that enable interdisciplinarycooperation centralization of expertise for evaluationand planning and land management It introduces anefficient process of managing land reform and estab-lishes more efficient relations between key environ-mental agencies

CONCLUSIONS

The legal aspects of soil degradation have in the pastbeen generally neglected at the international level andin many of the worldrsquos regions at the domestic levelHowever the failure to recognize soil degradation asa major international issue in the context of theconservation of biological diversity is gradually beingaddressed The further questions of food security pov-erty alleviation and avoidance of political and culturalconflict through reform of laws related to the equitabledistribution of land resources are yet to be adequatelypursued

This article has summarized various aspects of thecurrent international and national environmental regu-latory systems concerned with soil and has raised arange of inadequacies of those systems It has arguedfor an ecosystem-based approach to the development ofnew legislation to manage and protect soil While thearticle has primarily focused on domestic legal reformit has also discussed a number of concerns relating tothe CCD on the basis that lsquodesertificationrsquo is regardedas the most extreme form of soil degradation Con-

sideration of these matters however demonstratesthe wider concerns of soil degradation beyond thoseparticularized by the CCD with which the internationalcommunity ought to be involved The CCD establishesreasonably comprehensive legal responsibilities forState parties and therefore national legal systems andassociated institutions need to be equally compre-hensive to manage these responsibilities effectively

The IUCN CEL has already taken very positive steps todevelop guidelines for drafting national soil legislationand to prepare realistic options for the further devel-opment of an international instrument for soil Thearticle has outlined some alternative approachesthat could be considered for framing or reformingsoil legislation emphasizing the need for an ecologicalapproach to soil protection and management As indic-ated soil bodies represent complex terrestrial ecosys-tems and careful consideration and management oftheir ecological characteristics are essential for theirlong-term sustainable use to meet the food productionrequirements of the expanding human population ofthe world as well as to meet the needs of all flora andfauna which depend on the soil for sustenance

Ben Boer is Professor in Environmental Law at theUniversity of Sydney and a member of the AustralianCentre for Environmental Law Sydney He is a memberof the IUCN Commission on Environment Law and itsSustainable Soils Specialist Group and of the IUCNWorld Commission on Protected Areas His teachingsubjects include international environmental law com-parative environmental law natural resources law andheritage law

Dr Ian Hannam works with the Centre for NaturalResources Department of Infrastructure Planning andNatural Resources Sydney He is a member of theIUCN Commission on Environment Law and Chair of itsSustainable Soils Specialist Group He is the Vice-President (Australasia) of the World Association of Soiland Water Conservation He has carried out a widevariety of work on soil conservation and law in anumber of countries

103 For instance see Agriculture and Fisheries Modernization Act(1997) of the Republic of the Philippines available at lthttpwwwdagovphAFMAra8435ahtmlgt which is an example of abroad-based framework law to manage the complex physical socialand economic problems of the agricultural industry in the Philip-pines and includes a strategic approach to the identification of prob-lems and preparation and implementation of agricultural land-usemanagement plans See RN Conception and GP Nilo lsquoLaw andPolicy to Manage Land Degradation in the Philippinesrsquo in EMBridges et al n 9 above at 404ndash413 see also the ResourcesManagement Act (1991) of New Zealand which is a good exampleof an integrated resource management law in which soil is a prin-cipal component



150

impacts of soil degradation have been documented insome areas with loss of productive lands and dis-placement of people from their homelands Wheresignificant degradation has occurred this represents aserious threat to food security particularly in poorerdeveloping countries This often involves a lack ofaccess to fertile land and political instability and hasgenerated serious internal civil conflict in a number ofnations A stark example is Rwanda

the problems in Rwanda were very acute since it isa highly agricultural country most of the disputes havecentred around the distribution of pastureland and farm-land The World Bank lists Rwanda as the least urbanizedcountry in the world and the most densely populated inAfrica As a result of limited access to arable land and intensepopulation growth between 1954 and 1993 farmers werepushed into arid and hilly regions leading to intense cultiva-tion and erosion Thus environmental pressures accentu-ated existing tensions within the country contributing tolarge-scale violence and genocide

7

The inequitable distribution of arable land has beenrecognized as a major problem and to date has beeninadequately addressed by the reform of laws relatingto land ownership and transfer

8

Thus the agriculturaluse of land that is already degraded exacerbated bythe lack of access or availability of undegraded landand population growth creates a cycle of continuingdegradation which in turn contributes to furtherpoverty and conflict especially in sub-Saharan Africawhere significant areas of desertification already exist

Just as importantly soil degradation also threatensother aspects of the environment This occurs boththrough direct effects such as reduced habitat qualitythus depleting biodiversity and reducing hydrologicalfunctions and indirectly by forcing farmers to clearadditional land to compensate for yield declines landabandonment or sealing of land for urban use roadsand other purposes

9

The productivity of some lands has declined by 50because of soil erosion Yield reduction in Africa dueto past soil erosion ranges from 2 to 40 with amean loss of 82 for the continent In south Asiaannual loss in productivity was estimated at 36 milliontons of cereal equivalent to US$5400 million by watererosion and US$1800 million due to wind erosion Ona global scale the annual loss of 75 billion tonnes oftopsoil costs the world around US$400 billion peryear

10

[N]early 2 billion hectares of land ndash an area about the com-bined size of Canada and the United States ndash is affected byhuman-induced degradation of soils putting the liveli-hoods of nearly 1 billion people at risk Each year anadditional 20 million hectares of agricultural land becomestoo degraded for crop production or is lost to urbansprawl

11

Soil degradation is a lsquo ldquocross-cutting issuerdquo that intersectswith biodiversity climate change hazardous waste andother issues of global changersquo

12

such as populationgrowth and food insecurity In recent years there hasbeen an increasing interest in examining and under-standing the law relating to soil degradation and thepromotion of sustainable soil use The initial impetusfor this work was sparked primarily by the meetingsconducted and research carried out by various inter-national soil science organizations

13

and subsequentlyby the Environmental Law Programme of the Inter-national Union for the Conservation of Nature andNatural Resources (IUCN) ndash the World ConservationUnion ndash and other bodies With respect to desertifica-tion the 1994 Convention to Combat Desertificationin Countries Experiencing Serious Drought andorDesertification Particularly in Africa

14

(hereafter theCCD) and its various Annexes

15

have stimulated agreat deal of debate and the beginnings of action Inthe past 3 years there have been more definite movesto promote reform in this area of environmental lawIn particular substantial progress has been made ondeveloping appropriate frameworks for successfulmanagement of soils especially at the national level

DEFINITIONS AND TERMINOLOGY

One of the difficulties in discussing soil degradation isthe question of misused or misunderstood termino-logy in both the scientific and legal literature In order

7

Ibid at 187ndash188

8

See FAO Legal Office

Land and Sustainable Development sinceRio Legal Trends in Agriculture and Natural Resource Management

(FAO 2002) at 233

9

EM Bridges

et al

Response to Land Degradation

(Science Pub-lishers Inc 2001) at 2

10

HR Eswaran R Lal and PF Reich lsquoLand Degradation An Over-viewrsquo in ibid at 20ndash35

11

Policy Issues State of the Environment ndash UNEPrsquos Policy on Landand Soil

(UNEPGC21INF13 4 January 2001) at 2 available atlthttpwwwuneporggc_21stDocumentsgc-21-INF-13K0100000E-gc-21-INF-13pdfgt quoting the

Millennium Report of the SecretaryGeneral of the United Nations

(GA Res 559 UN GAOR 2000) at8 available at lthttpwwwunorgmillenniumsgreportch4pdfgt

12

H Hurni and K Meyer

World Soils Agenda

(GeographicaBernensia on behalf of the International Union of Soil Sciences2002) at 14

13

Especially the International Union of Soils Sciences the WorldAssociation of Soil and Water Conservation the European SoilBureau the International Soil Reference and Information CentreFoundation Charles Leopold Mayer and the International Board forSoil Research and Management (which became part of the Inter-national Water Management Institute in 2001)

14

UN Convention to Combat Desertification in Countries ExperiencingSerious Drought andor Desertification Particularly in Africa (Paris17 June 1994) printed in 33 ILM (1994) 1328

15

Ibid Annexes 1ndash5



151


16


17


SOIL


18



19


20



21


22

SOIL DEGRADATION


23


24

LAND


25

LAND DEGRADATION


26


16



17


18




19

Council of Europe



20


21




22


23




24

Ibid at 4

25

CCD Article 1(e)

26




152


27


DESERTIFICATION


28


29



30


31




32




33


34



35


27

CCD Article 1(f )

28




29

CCD Article 1(g)

30


31






et al



32



(UNEP 1996)

33


34


35




153


36



37




38




39


40


CONVENTIONS



41


42


43


44


45




36


37



38

Council of Europe




n 21 above

39

FAO





154













155











156

















mental legislation





157






























158






















159
















160















161














162













163



CONCLUSIONS










151


16


17


SOIL


18



19


20



21


22

SOIL DEGRADATION


23


24

LAND


25

LAND DEGRADATION


26


16



17


18




19

Council of Europe



20


21




22


23




24

Ibid at 4

25

CCD Article 1(e)

26




152


27


DESERTIFICATION


28


29



30


31




32




33


34



35


27

CCD Article 1(f )

28




29

CCD Article 1(g)

30


31






et al



32



(UNEP 1996)

33


34


35




153


36



37




38




39


40


CONVENTIONS



41


42


43


44


45




36


37



38

Council of Europe




n 21 above

39

FAO





154













155











156

















mental legislation





157






























158






















159
















160















161














162













163



CONCLUSIONS










152


27


DESERTIFICATION


28


29



30


31




32




33


34



35


27

CCD Article 1(f )

28




29

CCD Article 1(g)

30


31






et al



32



(UNEP 1996)

33


34


35




153


36



37




38




39


40


CONVENTIONS



41


42


43


44


45




36


37



38

Council of Europe




n 21 above

39

FAO





154













155











156

















mental legislation





157






























158






















159
















160















161














162













163



CONCLUSIONS










153


36



37




38




39


40


CONVENTIONS



41


42


43


44


45




36


37



38

Council of Europe




n 21 above

39

FAO





154













155











156

















mental legislation





157






























158






















159
















160















161














162













163



CONCLUSIONS










154













155











156

















mental legislation





157






























158






















159
















160















161














162













163



CONCLUSIONS










155











156

















mental legislation





157






























158






















159
















160















161














162













163



CONCLUSIONS










156

















mental legislation





157






























158






















159
















160















161














162













163



CONCLUSIONS










157






























158






















159
















160















161














162













163



CONCLUSIONS










158






















159
















160















161














162













163



CONCLUSIONS










159
















160















161














162













163



CONCLUSIONS










160















161














162













163



CONCLUSIONS










161














162













163



CONCLUSIONS










162













163



CONCLUSIONS










163



CONCLUSIONS






