managing wetlands

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Managing wetlands: integrating natural and humanprocesses according to lawC. A. Sullivan a & D. E. Fisher ba School of Environmental Science and Management, Southern Cross University, NSW,Australiab Queensland University of Technology, Brisbane, Queensland, AustraliaVersion of record first published: 16 Dec 2011.

To cite this article: C. A. Sullivan & D. E. Fisher (2011): Managing wetlands: integrating natural and human processesaccording to law, Hydrological Sciences Journal, 56:8, 1640-1655

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1640 Hydrological Sciences Journal – Journal des Sciences Hydrologiques, 56(8) 2011Special issue: Ecosystem Services of Wetlands

Managing wetlands: integrating natural and human processes accordingto law

C. A. Sullivan1 and D. E. Fisher2

1School of Environmental Science and Management, Southern Cross University, NSW, [email protected]

2Queensland University of Technology, Brisbane, Queensland, [email protected]

Received 27 September 2010; accepted 8 June 2011; open for discussion until 1 June 2012

Editor Z.W. Kundzewicz; Guest editor M.C. Acreman

Citation Sullivan, C.A. and Fisher, D. E., 2011. Managing wetlands: integrating natural and human processes according to law.Hydrological Sciences Journal, 56 (8), 1640–1655.

Abstract Wetlands perform functions that are both hydrological and ecosystemic. Both humans and the naturalenvironment benefit from these. However, wetlands need to be managed in a sustainable way to ensure that, notonly the present, but also the future benefits continue to accrue. Sustainable management techniques will almostnecessarily require a degree of legal involvement. Although the law can be used to control what humans do, itcannot control how the natural environment behaves; it can only control what humans do in relation to the naturalenvironment. As human populations grow and water resources dwindle, this continuing dilemma will becomeincreasingly severe. To address this issue, the challenge is to construct a set of legal arrangements that successfullyintegrate both the natural and human processes relating to wetlands. This may include, for example, considerationof: (a) the legal arrangements relating to water in wetlands; (b) how sustainability is to be achieved in the contextof wetland management; (c) how to strike an appropriate balance between the interests of humans and those ofthe natural environment; (d) how the interests of the natural environment are to be protected; and (e) who hasthe power to control activities in relation to wetlands. By reviewing the structure of laws relating to wetlands ata variety of scales, these issues are addressed from a legal perspective, and a broad overview is provided of howwetlands may be recognized within a selection of legal frameworks. By using examples from international law andalso from other regional and local jurisdictions, we demonstrate, from a legal perspective, how it is possible toachieve the integration of natural and human processes.

Key words convention; law; wetlands; jurisdiction; legal instruments; Ramsar; sustainable development

Gestion des zones humides: intégration des processus naturels et humains conformément à la loiRésumé Les zones humides remplissent des fonctions qui sont à la fois hydrologiques et écosystémiques. Leshumains et l’environnement naturel bénéficient de ces dernières. Cependant, les zones humides doivent êtregérées de manière durable pour assurer que, non seulement les bénéfices présents, mais aussi ceux futurs contin-ueront de s’accumuler. Les techniques de gestion durable exigeront presque nécessairement un degré d’implicationjuridique. Bien que la loi puisse être utilisée pour contrôler ce que les humains font, elle ne peut pas contrôler lafaçon dont l’environnement naturel se comporte; elle ne peut que contrôler ce que les humains font en rela-tion avec l’environnement naturel. Comme les populations humaines se développent et que les ressources en eaus’amenuisent, ce dilemme continu va devenir de plus en plus sévère. Pour répondre à cette question, le défi estde construire un ensemble de dispositions juridiques qui intégrent avec succès les processus à la fois naturelset humains liés aux zones humides. Il peut s’agir, par exemple, d’examiner: (a) les modalités juridiques rela-tives à l’eau dans les zones humides, (b) comment la durabilité doit être atteinte dans le contexte de la gestiondes zones humides; (c) comment trouver un équilibre approprié entre les intérêts des êtres humains, et ceux del’environnement naturel; (d) comment les intérêts du milieu naturel doivent être protégés, et (e) qui a le pouvoirde contrôler les activités liées aux zones humides. En passant en revue la structure des lois relatives aux zoneshumides à diverses échelles, ces questions sont abordées dans une perspective juridique, et on fournit un largeaperçu de la façon dont les zones humides peuvent être reconnues au sein d’une sélection de cadres juridiques.En utilisant des exemples tirés du droit international et aussi d’autres instances régionales et locales, nous démon-trons, à partir d’un point de vue juridique, comment il est possible de réaliser l’intégration des processus naturelset humains.

Mots clefs convention; droit; zones humides; juridiction; instruments juridiques; Ramsar; développement durable

ISSN 0262-6667 print/ISSN 2150-3435 online© 2011 IAHS Presshttp://dx.doi.org/10.1080/02626667.2011.630318http://www.tandfonline.com

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Managing wetlands: integrating natural and human processes according to law 1641

1 INTRODUCTION

One of the objectives of this paper is to examinehow wetlands, as a distinct and identifiable form ofwater body, are incorporated into the legal structuresunderpinning water resources management. Withineconomics, wetlands are considered part of the fac-tor of production, land. Historically, in many areas,the identification of wetlands as wetlands for the pur-poses of the law has emerged out of the subtleties ofconstitutional and statutory arrangements, explainingthe concepts of land and of water. In West Bengal inIndia, for example, the expression “land” is definedto include any wetland and the expression “waterbody” is defined to include any land holding water.1

Similarly, in the USA, wetlands have been definedby regulations made under the federal clean waterlegislation as:

Those areas that are inundated or saturated bysurface or groundwater at a frequency and dura-tion sufficient to support, and that under normalcircumstances do support, a prevalence of vege-tation typically adapted for life in saturated soilconditions. Wetlands generally include swamps,marshes, bogs and similar areas.

It has subsequently been commented judicially that“this definition focuses on two essential indicia ofwetlands: hydrology and vegetation”.2

In 1986 the Congress of the USA approved theEmergency Wetlands Resources Act 1986, which,due to its focus on soils, vegetation and hydrology,expanded and refined the definition in the earlierregulations under the 1972 Act. In all instances, how-ever, the decision whether an area is a wetland isconstrained by the law in two ways:

– There must be adequate scientific investigationand analysis

– There must be a degree of rationality brought tobear between the information, the assessment andthe decision.3

In this paper, we review the legal arrangements—international, regional and national—relevant towetlands.4 We specifically wish to focus here on thelegal structures and the links between these structuresat different levels of jurisdiction, As a result, we willnot provide a detailed analysis of any one jurisdic-tion or scale. Some of these examples relate directlyto wetlands, while others do so only indirectly. Sincespace is limited here, we have been necessarily

selective in the examples chosen. Accordingly weprovide a cross-section of cases for consideration,illustrated by examples from a variety of countrieswhich we believe may appeal to the internationalreadership of this Special Issue.5

2 SUSTAINABILITY AS A PRINCIPLE OFWETLANDS MANAGEMENT

In spite of the fact that the concept of sustainabledevelopment continues to engender much debate, itis now the case that sustainability is increasinglybeing reflected in international environmental law,following the endorsement by the international com-munity of the Stockholm Declaration 1972.6 Focusingon environmental protection, this further evolved tostrengthen nature conservation in the World Charterfor Nature 1982.7 Principle 3 of the 1972 Declarationis directed specifically at renewable resources. Theneed to safeguard and wisely manage wildlife and itshabitat is the focus of Principle 4 which concludeswith the declaration that nature conservation mustbe incorporated into planning for economic develop-ment. The fundamental principle of the 1982 Charteris that nature shall be respected, and its essential pro-cesses shall not be impaired. According to principles4 and 10(a) and (b) it is also expected that:

– Ecosystems and organisms, as well as the land,marine and atmospheric resources that are utilizedby man, shall be managed to achieve and maintainoptimum sustainable productivity, but not in sucha way as to endanger the integrity of those otherecosystems or species with which they coexist.

– Living resources shall not be utilized in excess oftheir natural capacity for regeneration.

– The productivity of soils shall be maintained orenhanced through measures which safeguard theirlong-term fertility and the process of organicdecomposition, and prevent erosion and otherforms of degradation.

The Rio Declaration 19928 moved the focus fromthe protection of the human environment accord-ing to the Stockholm Declaration 1972 and fromthe conservation of nature according to the WorldCharter for Nature 1982 towards sustainable devel-opment. The objective of sustainable developmentbrings together the economic, the social and the eco-logical characteristics of nature, natural resources andthe environment. Principle 1 of the Rio Declarationstates:

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1642 C. A. Sullivan and D. E. Fisher

Human beings are at the centre of concerns forsustainable development. They are entitled toa healthy and productive life in harmony withnature.

This illustrates that the approach has become moreanthropocentric, but protection of the environmentand conservation of nature remain core values recog-nized by and included in the Rio Declaration whichunderpins much public policy today.

It cannot be doubted that wetlands, as part ofnature and of the natural environment, fall withinthe scope of these various principles, with their con-servation as the ethical foundation of the approach.In effect, therefore, the fundamental principle drivingthe management of wetlands, as elements of nature, istheir sustainable development, as indicated by thesethree legal instruments. However, it is true to say thatthere remains a wide gulf between what all the vari-ous international agreements and conventions say, andtheir effective implementation. It is also important tonote that the implementation of most internationallegal agreements require the inclusion of bindingrules and obligations in national and local laws, beforeany real protection of ecosystems can occur.

3 INTERNATIONAL WETLANDSMANAGEMENT

3.1 Introduction

The Ramsar Convention 19719 is the onlyinternational agreement which focuses directlyupon wetlands. However, wetlands can in appropriatecircumstances be subsumed within the scope ofinternational agreements directed at the manage-ment and regulation of particular components ofthe natural environment. On the assumption thatwetlands combine the values associated with land,water, vegetation and soils, it is no surprise thatmultilateral international agreements have focussedon one or more of these related and interdependentsets of values. International arrangements tend tobe a combination of statements of principle and ofstrategy which inform the range of more specificregulatory arrangements comprising sets of rightsand duties that are protected and enforced throughthe legal system.

How international arrangements impact on wet-lands reflect the broad principles indicating hownature should be conserved, informing potentiallyenforceable legal arrangements. To illustrate this, twointernational agreements impacting upon nature will

be examined, along with four international agree-ments that impact indirectly on wetland managementas well as the Ramsar Convention itself that relatesspecifically to wetlands.

3.2 Direct wetlands management: the RamsarConvention

It is the Ramsar Convention of 197110 alone whichdeals specifically and directly with wetlands. Theprincipal mechanism for the conservation of wetlandsis the designation of suitable wetlands for inclusionin the List of Wetlands of International Importance.The Convention, however, seeks the conservation ofwetlands, whether included in the list or not. Article 4(1) provides:

Each contracting party shall promote the conser-vation of wetlands and waterfowl by establishingnature reserves on wetlands, whether they areincluded in the list or not and provide adequatelyfor their wardening.

Article 3 (1) directs planning at the conservation ofwetlands included in the List, and at the wise useof wetlands in the territory of the contracting party.Article 3 (1) thus seeks to promote the conserva-tion of wetlands included in the List and Article 4(1) seeks to promote the conservation of wetlandswhether included in the List or not.

It has, however, been noted that the guidelines forthe implementation of the wise use concept indicatethis:

The wise use provisions apply to all wetlandsand their support systems within the territory ofa contracting party, both those wetlands desig-nated for the list, and all other wetlands.11

The implication appears to be that listed wetlands areto be conserved while non-listed wetlands are to beused wisely. Further, a definition of wise use has beenformally accepted by the parties. Namely:

The wise use of wetlands is their sustainableutilisation for the benefit of humankind in a waycompatible with the maintenance of the naturalproperties of the ecosystem.12

It has been suggested that the guidelines “explicatethe concept of wise use in terms of conservation and‘sustainable development and sustainable utilisationof wetland resources’.”13 The definition contains areference to sustainable use as well as a reference to

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maintenance of the natural properties of the ecosys-tem. The relationship between the two is “compatibil-ity”: a test difficult to apply. What is contemplated,it would appear, is an accommodation between thefunctions of ecosystems that benefit humans on onehand and those that benefit ecosystems on the otherhand. This, however, is the essence of conservationin any event, for conservation contains within it theneed to accommodate these disparate functions andoutcomes. This, of course, is the conundrum in deter-mining how wetlands should be managed. It has alsoproved to be a conundrum for the legal arrangementssupporting such a management system.

The Ramsar Convention itself provides for theconservation of wetlands. Wetlands are defined asareas of marsh, fen, peatland or water. What is miss-ing is any reference to either the ecosystems of thewetlands or the wider environment of which the wet-lands are a part. The evolution of later internationalarrangements has addressed both of these issues byincorporating, in their specific areas, an ecosystemapproach and an integrated approach to the man-agement of wetlands more generally. In this context,integrated means that all relevant characteristics relat-ing to wetlands, including the values associated withtheir environment, including the cultural environ-ment, are addressed together. As a result, the RamsarConvention, in conjunction with the ongoing evolvingsets of guidelines and practices, provides a frameworkfor the management of wetlands directed intrinsicallyat their conservation or their ecologically sustainabledevelopment, in the context not only of the areas com-prising of the wetlands but also of the wider andmore extensive areas comprising their physical, bio-logical, hydrological, and, no doubt, even culturalenvironment.

3.3 Direct conservation of wetlands through theConvention on Biological Diversity

The Convention on Biological Diversity of 199214 is amore recent and vitally important instrument indicat-ing the cornerstone of conservation policy in all of thesignatory countries. Its precursor was the Conventionon International Trade in Endangered Species of WildFauna and Flora 1973.15 Two of the most importantconcepts underpinning the 1992 Convention are bio-logical diversity and ecosystem, and the Convention isdirected explicitly at the conservation and sustainableuse of all the components of biological diversity.Components of biodiversity are, in addition, protectedby the 1973 Convention which regulates International

Trade in Endangered Species of wild fauna and flora(CITES). The 1992 convention, in particular, sig-nificantly extends what was included in the RamsarConvention, and strengthens international legislationrelating to wetland protection.

The incorporation of terrestrial and aquaticecosystems and marine ecosystems within the mean-ing of biological diversity in the 1992 Conventionclearly includes not only wetlands themselves, butalso the ecological complexes of which wetlands area part. Significantly, therefore, biodiversity is con-served by the Convention, not only in relation to thebiological diversity of wetlands, but also in relation tothe biological diversity of the ecological complexesof which wetlands are a part. Both in situ conserva-tion and ex situ conservation measures are required toimplement the Convention. While all signatory coun-tries are expected to build these approaches into rel-evant sectoral and cross-sectoral plans, programmesand policies, the reality is that there are many placesacross the world, where this has not been followedthrough or fully implemented. This underlines the factthat, even if legislation is in place, its implementa-tion or enforcement is what really counts in terms ofconservation action on the ground.

3.4 Indirect wetlands management

In addition to the direct mechanism of wetlandsmanagement provided by the Ramsar and BiologicalDiversity Conventions, other international conventionregimes can influence the management of wetlands.Three examples of such indirect mechanisms arediscussed below.

3.4.1 World natural heritage The Conven-tion for the Protection of the World Cultural andNatural Heritage 1972,16 in its application to nature,is designed to protect natural heritage of outstand-ing universal value. For this purpose natural heritageincludes natural features consisting of physical andbiological formations or groups of such formationswhich are of outstanding universal value—“value”being the word used in the convention itself—fromthe aesthetic or scientific point of view. It is the dutyof individual states to identify and delineate the nat-ural heritage that is situated on their territory, but itmust satisfy the criteria stated in the Convention. It isalso the duty of the state to provide an appropriatelegal framework to support the identification, protec-tion, conservation, preservation and rehabilitation ofeligible natural heritage sites. This means that once

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an area that is a wetland has been formally included inthe World Heritage List, it must be protected not onlyby the Convention, but also by the legal arrangementsfor its protection (such as establishment of nationalparks) effective within the state responsible for it.This enables the eligible wetland and its environmentto be protected accordingly.

3.4.2 Combating desertification Accordingto the Convention to Combat Desertification 1994,17

combating desertification involves preventing orreducing land degradation, rehabilitating degradedland, or reclaiming desertified land. Land degrada-tion involves the reduction or loss of soil resultingfrom land uses or from a process or combination ofprocesses, including those relating to human activi-ties and habitation patterns and causing soil erosion,soil deterioration or loss of natural vegetation. ThisConvention has two related objectives:

– to combat desertification and mitigate the effectsof drought; and

– to contribute to the achievement of sustainabledevelopment in affected areas.

In addition, it indicates how this combined objectiveis to be achieved, by:

– the implementation of long-term integrated strate-gies that focus simultaneously, in affected areas,on improved productivity of land; and

– the rehabilitation, conservation and sustainablemanagement of land and water resources, leadingto improved living conditions, in particular at thecommunity level.

While the focus is clearly anthropocentric, ecologicalintegrity is not only relevant, but also important. Theconcepts of land and of land degradation are critical.A typical process of land degradation associated withdesertification is the problem of soil erosion, causedby wind, water, or by an interaction of the two, usu-ally resulting in long-term loss of natural vegetation.In this context, land can include rain-fed cropland,irrigated cropland, or range, pasture, forest and wood-lands. A crucial relationship is that between land andwater: not dissimilar to the concepts underpinning theRamsar Convention, and subject to similar interpre-tations of the concept of wetlands as they may becontained in any of the abovementioned land types.

3.4.3 International watercourses There aretwo international agreements dealing with inter-national watercourses that may have a bearing

on wetlands conservation. The first is the UnitedNations Convention on the Protection and Use ofTransboundary Watercourses and International Lakes199218 promoted by the United Nations EconomicCommission for Europe. This Convention is designedto ensure that transboundary waters are used withthe aim of ecologically sound and rational watermanagement, conservation of water resources andenvironmental protection. It seeks to prevent, con-trol and reduce any significant transboundary effecton the environment, resulting from a change in theconditions of transboundary waters caused by humanactivity.

The second is the United Nations Convention onthe Law of the Non-navigational Uses of InternationalWatercourses 1997.19 It is concerned less with theprevention of significant adverse transboundary envi-ronmental impacts and more with the equitableand reasonable use of international watercourses.In addition, this Convention adopts—at least byimplication—an ecosystem approach to the manage-ment of international watercourses. This will provideprotection for wetlands in some areas. Accordingto Article 20, “watercourse states shall individu-ally, and where appropriate, jointly protect and pre-serve the ecosystems of international watercourses”.Accordingly, where an international watercourseflows through wetlands or is otherwise hydrologicallyconnected with them, then the wetlands cannot beignored in determining how the watercourse shouldbe used in an equitable and reasonable manner.

The common element of these more specificobjectives is conservation—conservation of waterresources and conservation of ecosystems. The fun-damental principle is in the form of the obligationimposed upon watercourse states to use an interna-tional watercourse within their territory in an equi-table and reasonable manner. While it is human useof water resources that lies at the foundation of theConvention, conservation and protection of the waterresources and the ecological functions and valuesassociated with them are, in the application of thelaw, relevant and significant. While the applicationof equitable and reasonable use can thus be appliedto any wetlands as the basis of any regional arrange-ments, it is not in fact the case that this is what actu-ally happens. As with many other legal instruments,different interpretations of the law make de facto wet-land conservation very variable, even across thosejurisdictions which have signed up to these inter-national agreements. To overcome this problem, itwould be helpful to have wetlands explicitly included

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in any national or local legislation so as to reflect therelevant international agreements. In states which aresignatories to the Convention on Biological Diversity1992, the application of the two Conventions togethermay lead to strengthened environmental protection.But again, this will become a possibility only if wet-lands are explicitly mentioned within the relevantlegal instruments.

4 REGIONAL WETLANDS MANAGEMENT

Regional management of water resources is essentialin parts of the world where huge river systems drainmultiple basins across a large number of countries.How water law relates to wetlands within these sys-tems varies considerably, and has evolved over manyyears.

4.1 Africa and South-East Asia

There are in place around the world a number ofregional arrangements of relevance to wetlands man-agement. Some have effect within a broader natu-ral resources framework. One dating from 1968 isthe African Convention on the Conservation ofNature and Natural Resources, while more recently,in 1985, the Association of South East AsianNations (ASEAN) formalized an agreement on theConversation of Nature and Natural Resources.

The fundamental principle stated in the AfricanConvention on the Conservation of Nature andNatural Resources 196820 is in the form of an obli-gation to adopt the measures necessary to ensureconservation, utilization and development of soil,water, flora and faunal resources in accordance withscientific principles, and with due regard to thebest interests of the people. The meaning of natu-ral resources reflects this. Natural resources relateto renewable resources—soil, water, flora and fauna.The Convention goes on to deal with each of thesefour natural resources in its own context. Obligationsare imposed in relation to each of these natu-ral resources, In relation to water, the obligationis to establish policies for conservation, utilizationand development of underground and surface water.Complementary obligations relate to a sufficient andcontinuous supply of water suitable for the popula-tion, the control of all water use and the preventionand control of water pollution.

For flora, complementary obligations in thisConvention relate to taking into account the relevant

social and economic needs, the importance of vege-tation cover for the maintenance of the water balanceof an area, the productivity of soils and the habitatrequirements of fauna. Particular attention is directedto land clearing for cultivation and over-grazing bydomestic and wild animals. In relation to faunalresources, the obligation is to ensure conservation,wise use and development of faunal resources andtheir environment. It is accordingly this integrated setof obligations and management mechanisms relatingto soil, water, flora and fauna that is the particularlydistinguishing feature of this set of legal arrangementswhich clearly can be applied to wetlands systems.

The ASEAN Agreement on the Conservation ofNature and Natural Resources 198521 imposes obliga-tions in relation to genetic diversity and to the conser-vation of natural, terrestrial, freshwater and coastal ormarine habitats. In the context of wetlands, two of themost important obligations relate to soil and water.Each of these obligations acknowledges the role ofsoil and the role of water in the functioning of naturalecosystems. More specifically, there is an obligationto take all necessary measures to control erosion,especially where erosion may affect coastal or fresh-water ecosystems, leading to siltation of downstreamareas such as lakes, or vulnerable ecosystems such ascoral reefs, or damage critical habitats of endangeredor endemic species.

In relation to water, the obligation is to takeall appropriate measures towards the conservation ofunderground and surface water resources. The obli-gation to regulate and control water utilization isdesigned to achieve sufficient and continuous sup-ply of water for the maintenance of natural life-supporting systems and aquatic fauna, and flora.Although wetlands are not specifically mentioned inthis Agreement, they clearly fall within the scope orambit of these obligations.

4.2 European Union

Since 2000, members of the European Union havebeen required to implement the Directive Establishinga Framework for Community Action in the Fieldof Water Policy,22 commonly known as the WaterFramework Directive. Across the very diverse regionsof Europe, common principles are needed in orderto coordinate member states’ efforts to improve theprotection of community waters. There is an obliga-tion on member states to put together a programmeof measures to achieve the objectives of the Directive.In particular, these measures relate to the quantity and

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quality of water, to promote sustainable water use,to contribute to the control of transboundary waterproblems, to protect aquatic ecosystems and depen-dent terrestrial ecosystems and wetlands, as well as tosafeguard and develop potential uses of communitywaters.

Through the mechanism of integrated waterresource management, the Directive adopts a river-basin approach to the management of waters and thisincludes inland surface waters, transitional waters,coastal waters and groundwater. Transitional watersare bodies of surface water in the vicinity of rivermouths that are partly saline in character as a resultof their proximity to coastal waters, but that aresubstantially influenced by freshwater flows.

According to the Directive, there is an obliga-tion to establish registers of areas where surface waterand groundwater require protection, and where habi-tats and species directly depending on water requireconservation. As a result, the sustainable manage-ment of surface and underground water resources,and the improvement and restoration of aquatic andterrestrial ecosystems have become key objectivesfor the management of water resources. One of themain challenges is to achieve the level of water qual-ity required to certify the achievement of a “goodecological status”.

The Water Framework Directive does not dealdirectly with wetlands, except where they are depen-dent on groundwater or aquatic ecosystems. Nor doesthe Directive on the Conservation of Wild Birds1979.23 However, wetlands that are the habitat ofprotected birds are capable of protection under the1979 Directive, and there is an obligation to take mea-sures to maintain the population of protected species(for example, by establishing special protection areas)and to take appropriate steps to avoid pollution ordeterioration of habitats or any disturbances affect-ing the birds, in so far as these disturbances wouldbe significant having regard to the objectives of theDirective. This applies to the species requiring specialconservation measures as well as to other species.

In the context of wetlands specifically, theseissues have been addressed on four occasions by theCourt of Justice of the European Communities. In onecase Germany was proposing to reduce the area of aspecial protection area.24 In the second case it wasalleged that Spain had failed to classify an area as aspecial protection area in breach of its obligation todo so.25 In the third, the United Kingdom proposedto exclude an area suitable for development for eco-nomic reasons from the adjacent area proposed as a

special protection area.26 In the fourth, it was allegedthat France had not classified, as a special protectionarea, an area large enough to satisfy its obligations.27

The issue confronting the Court in these cases wasessentially the methodology required to be adopted bythe member state in question in determining whetherand how it should discharge its obligations under theDirective. In particular, the issue was whether thescope of decision-making included economic con-siderations as well as ecological considerations. Theanswer depended upon the structure of the Directive,the relationship between its various provisions, andhow these related to the site specific locations underconsideration. Priority was given to the “ecologicalimperative” underlying the Directive.

These examples illustrate how the EU WaterFramework Directive does go a long way towardssupporting better ecosystem management at the riverbasin scale, but there remains a large range of inter-pretation and implementation across the widely dif-fering countries of the whole European Community.The fact that individual states have to identify and reg-ister specific “water bodies” for protection, and canask for derogation to avoid compliance, does leaveroom for wetlands to be drained and removed in someareas, in the interest of other uses. Once again, thisillustrates the challenge of integrating wetlands intoeffective water management regimes, even in placeswhere legislation has been put in place. As wetlandsare not defined as part of the “water environment”they are not protected in themselves.

4.3 North America

The North American Wetlands Conservation Act198928 enacted by the Congress of the United Statesnotes the need for wetlands to be managed co-operatively by Mexico, Canada and the USA. TheNorth American Wetlands Conservation Council wasestablished for this purpose, and one of its functionsis to recommend wetlands conservation projects forapproval and for the provision of funds in supportof these projects. In common with similar legislationspecific to the USA alone, this legislation contem-plates that a wetlands conservation project involvestwo elements:

– the acquisition of a real property interest in landor waters; and

– the restoration, management or enhancementof wetlands ecosystems and other habitats for

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migratory birds and other fish and wildlife speciesfrom an operational basis.

It is, accordingly, the wetlands and their importance inboth human and ecological terms that are the focus ofthese arrangements. In this sense the uses of the areasin respect of which the states acquire the necessaryinterests in the land or waters are planned, and thenjointly managed operationally, to ensure that theseobjectives are achieved. This is not a regulatory sys-tem in the sense that the state tells its citizens what todo or what not to do. Rather it is a system wherebythe state plans and decides what to do and then doesit itself. As in most other cases of natural resourcemanagement, however, the effectiveness of legisla-tive rules depends on their enforcement, while theeffectiveness of legal monetary incentives depends onavailability of funds.

4.4 Southern African Development Community(SADC)

The whole of the southern African region is very aridand faces conditions of water stress. Rapidly growingpopulations are exacerbating these conditions, and inresponse, the SADC adopted the Revised Protocol onShared Watercourses 2000.29 This Protocol assumesthe form that has become typical of contemporaryinternational resource agreements: an objective, astatement of general principles, a number of proce-dural obligations, a number of substantive obligationsand a set of institutional arrangements. Once again,the aim associated with the achievement of the overallobjective of the Protocol is to advance the sustainable,equitable and reasonable utilization of the sharedwatercourses in the SADC region. The way in whichthese shared watercourses are to be used equitably andreasonably reflects almost exactly the rules containedin the United Nations Convention on the Law of theNon-Navigational Uses of International Watercourses1997,30 but in some respects, this Protocol providesmore detail, as illustrated below.

For example, one of its principles is that the stateparties recognize the unity and coherence of eachshared watercourse. The fundamental idea of a uni-tary whole is confirmed by the definition attributedto the term “watercourse” which is described in lawas “a system of surface and groundwaters consist-ing by virtue of their physical relationship a unitarywhole normally flowing into a common terminus suchas the sea, lake or aquifer.” This definition indicatesthat an ecosystems approach to the management of

the watercourse as a whole is adopted, with the ulti-mate objective of sustainable development. The prin-ciples also recognize the range of purposes for whichwater resources may be used, including agricultural,domestic, industrial, navigational and environmentaluses. An environmental use is the use of water for thepreservation and maintenance of ecosystems.

The Protocol establishes a complex institutionalframework for its implementation. This frameworkcomprises four SADC Water Sector Organs togetherwith the range of appropriate institutions which eachof the states has undertaken to establish within itsjurisdiction. The four community organizations arethese:

– The Committee of Water Ministers– The Committee of Water Senior Officials– The Water Sector Co-ordinating Unit– The Water Resources Technical Committee and

its sub-committees.

The Committee of Water Ministers, with technicaland administrative advice from the supporting units,has overall and ultimate responsibility for the imple-mentation of the Protocol. On an operational basis,this is implemented within the territorial boundariesof the states, so the specific operational activities ableor required to be undertaken are determined by thelaws of the states. There is thus a need for appropri-ate and effective institutions to be established. Legalarrangements within the states are expected to reflectthose in the Protocol, but this can only be achievedthrough a process of harmonization of laws. This isnot always easy or even possible. The substantive obli-gations in the Protocol relate to the protection andpreservation of the ecosystem of the shared water-course, the aquatic environment, and estuaries.

The Revised Water Protocol on Shared WaterResources 2000 provides the basis for all river basinplans in Southern Africa. This includes a numberof major, and strategically important, rivers such asthe Zambezi and the Orange, and globally importantsites of biological importance, such as the OkovangoDelta region, one of the largest wetlands on Earth.Some of these examples are discussed in more detailbelow, but it is worthy of note that in many instances,the wetlands are being conserved incidentally for thepurpose of protecting biological diversity and par-ticular endangered species, rather than for their ownprotection There is perhaps a need here to recon-sider the wording of this Protocol to overcome anyambiguities, and to include wetlands more specif-ically. The protection of biological diversity is the

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more specific objective of the Protocol on WildlifeConservation and Law Enforcement in the SouthernAfrican Development Community 1999.31 While theRevised Protocol on Shared Watercourses 2000 pro-vides the basis for protection of wetlands, the Protocolon Wildlife Conservation similarly facilitates the con-servation of wetlands but the latter does so onlythrough the conservation of wildlife, particularly ina transboundary context. The arrangements for theconservation of wildlife have been described in thisway:

The 1999 Protocol . . . obliges the MemberStates to establish management programs forthe conservation and sustainable use of wildlife,integrate such programs into national develop-ment plans, and assess and control activitieswhich may significantly affect the conservationand sustainable use of wildlife so as to avoid andminimise negative impacts.32

In particular it contemplates the developmentof transfrontier conservation and management pro-grammes and this has involved the establishmentof Transfrontier Conservation Areas. The followingexamples are sourced from the analysis referred inNote 31.

The Kavango Zambezi Transfrontier Con-servation Area is “situated in the river basins of theOkavango and Zambezi Rivers” and covers more than28 million hectares (ha). A variety of arrangementshave been put in place for its management. Withinthe transfrontier area, there are “36 national parks,game reserves, community conservancies and gamemanagement areas, for each of which specific con-servation requirements have been set in the nationallaw.” While this means the conservation statusmay vary across the area, the common principlesof ecological connectivity are being implementedon a very large scale. At this stage, it is too earlyto say how successful these initiatives have been,and it is important to recognize that these areas alsocoincide with geographical areas under significantpressure from human development. This howeverdoes provide an excellent example of how science-based policy can be designed and implementedto support ecosystem integrity, in spite of realpolitical, economic and social challenges ongoingacross a region. Another example of this kind ofinitiative being implemented in this region is theAi-Ais/Richtersveld Transfrontier Park in SouthAfrica and Namibia. This particular conservationarea is “connected by the Orange River to the Orange

River Mouth Ramsar site, a transboundary wetlanddesignated by both countries under the RamsarConvention.” These examples indicate where realefforts are being made to maintain the ecologicalintegrity of river systems, including their associatedwetlands. These examples are founded on a goodscientific understanding of the issue of connectivityin ecosystem integrity. As long as the agreement isimplemented, they show great promise for increasedconservation success. It is important to note thatexplicit inclusion of wetlands within relevant legalinstruments would make it easier for such systems tobe linked directly to macroeconomic frameworks.

5 RIVER BASIN WETLANDSMANAGEMENT

In many parts of the world, river basin commissionsare being set up to contribute to the sustainable man-agement of transboundary rivers. Within the SADCregion, for example, a number of important riversare now in the process of developing river basinauthorities.

5.1 The Orange River

The Orange River, is the major water supply systemfor the state of South Africa, providing as it does thewater for Johannesburg, often described as the engineof economic growth in Africa. With this crucial riversystem under immense pressure from agriculture,industry, and, particularly, urbanization, there is nowan important evolving institution in the form of theOrange and Senqu River Commission (ORASECOM)established after a regional agreement made in 2000,aiming to achieve a more equitable status in terms ofthe way the river is used. The lower reaches, flowingthrough very arid zones and parts of the Namibiandesert, are often stressed, in terms of both quantityand quality. Concern has been expressed whether theobjectives of the Ramsar Convention can be achievedunder these development pressures. In contrast, theupper reaches of the Orange River, or Senqu as itis known in Lesotho, contain very large areas ofwetlands of great diversity of type. These supportlocal livelihoods and deliver water to the LesothoHighlands Water Scheme, where a large proportionof the river water is transferred, by mutual agreementof the states involved, to South Africa. Strategically,this is a vital way for South Africa, a very waterstressed country, to gain some security of future watersupplies. In Lesotho, this exchange is overseen by

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the Lesotho Highlands Development Authority. Thisinstitution has the duty of promoting economic devel-opment, including the implementation of integratedwater resource management within the basin. Work iscurrently ongoing to develop a system of payments forthe ecosystem services generated by these wetlands.This has the potential to provide crucial funding tosupport ecologically sensitive economic developmentin these wetland-based upland areas.

5.2 The Zambezi River

The arrangements for managing the Zambezi Riversystem, set out in the Agreement on the Action Planfor the Environmentally Sound Management of theCommon Zambezi River System 1987,33 are detailedand, therefore, require the establishment of specificinstitutional structures to support their implementa-tion. Structurally, these arrangements comprise:

– the acquisition of information;– its assessment and analysis;– planning studies based on these;– the adoption of an action plan; and– the implementation of the action plan through a

series of projects.

Prior to the formulation of the action plan for thisbasin, a diagnostic study identified a number of prob-lems relating to the environmentally sound manage-ment of the river basin. These include soil erosion,inadequate soil and water conservation, and flood-plain management. These need to be addressed toavoid degradation of the natural resources base. Theneed for adequate and scientifically-based informa-tion permeates the action plan for the Zambezi. Theimplementation mechanisms include environmentalassessment, environmental management and envi-ronmental legislation. Interestingly, the function ofenvironmental assessment involves the gradual devel-opment and operation of a basin-wide unified mon-itoring system for water and water-related environ-ment, covering water quantity and quality, pollution,siltation, water consumption, water supply and san-itation, hydroelectric power plants, major irrigationschemes, human health, forestry, soil conservation,desertification, and wildlife conservation.

One of the projects contemplated by theAgreement examines the issue of inter-basin trans-fer of water (including water demands for sustainabledevelopment) to locations outside the river basin, andthe impact this will have on the Zambezi River sys-tem itself. The Agreement also creates details forsupporting institutional and financial arrangements.

The overall responsibility for the action plan lieswith the Zambezi Inter-governmental Monitoring andCo-ordinating Committee. The Committee is sup-ported by the Zambezi River Basin CoordinationUnit, whose function is to ensure from a technicalperspective the harmonious, coordinated and inte-grated evolution of each of the components of theaction plan. Many of these institutional arrangementsfrom this Zambezi plan have become integral to thearrangements established for the SADC as a whole.

5.3 The Okavango River

The Okavango Basin covers a wide area of south-ern Africa, stretching across Botswana, Namibia, andincorporating parts of the Kalahari. The PermanentOkavango River Basin Water Commission was putin place by the Agreement on the Establishmentof a Permanent Okavango River Basin Commission199434, which acknowledged the concepts of envi-ronmentally sound natural resource management,sustainable development and the equitable utilizationof shared watercourse systems. Although the func-tion of the Commission is essentially advisory, itsactivities perhaps can be summarized as technical,in the sense of undertaking the necessary scientificand economic investigations and analysis, and polit-ical in the sense of formulating policy and measuresfor implementation of policy. The scope of its activ-ities range from the prevention of water pollutionand controlling invasive vegetation in the river basin,to the identification of criteria to be adopted in theconservation, equitable allocation and sustainable uti-lization of water resources. The notion of sustainabledevelopment clearly underpins the approach to betaken by the Commission. While it is relatively easyto state objectives and principles, appropriate institu-tional arrangements are needed to make things hap-pen, and efforts have been made to establish these tosupport the sustainable management of the OkavangoBasin.

5.4 The Amazon River

The Amazon Declaration 198935 builds onthe arrangements in the Treaty for AmazonianCoorporation 1978,36 but additionally acknowledgesthe common interest in achieving the sustainabledevelopment of the Amazon region. In addition,the rational use of its natural resources is designedfor the benefit of present and future generations.The Declaration recognizes the three elements of

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sustainable development: cultural or social, economicand ecological. It clearly states:

Conscious of the importance of protecting thecultural, economic and ecological heritage ofour Amazon regions, and of the necessity ofusing this potential to promote the economic andsocial development of our peoples, we reiter-ate that our Amazon heritage must be preservedthrough the rational use of the resources of theregion so that present and future generationsmay benefit from this legacy of nature.

Once again, although wetlands are not specificallyidentified, they clearly come within the scope of thisagreement. The Amazon region as a whole includessome very large areas of wetlands and flooded forests(varzea), and so it is important that this interpretationof the Declaration is accepted and implemented.

5.5 The Mekong River

Similar to the arrangements for the Amazon region,the Agreement on the Cooperation for the SustainableDevelopment of the Mekong River Basin 199537

is concerned essentially with the sustainable devel-opment, utilization, management and conservationof the water and related resources of the MekongRiver Basin. One of the specific obligations is toprotect the environment, natural resources, aquaticlife and conditions and ecological balance of thebasin from pollution or other harmful effects result-ing from any development plans or uses of water andrelated resources in the basin. These arrangementsare supported by the Mekong River Commissioncomprising a Council of Ministerial Representatives,a Joint Committee of Senior Departmental Officersand a Secretariat. Again, the three dimensionsof sustainable development—social, economic andecological—are acknowledged and indirectly incor-porated in the agreement, which encompasses theextensive wetland areas of many types found acrossthe basin. In spite of this Agreement being in place,there is evidence that river degradation is occurring.The capacity of the Mekong River Commission toimplement this Agreement is perhaps limited becauseChina and Myanmar are not parties to the Agreement.

5.6 The Danube River

A very interesting example from Europe is theDanube Basin. As in many other cases, theConvention on Cooperation for the Protection and

Sustainable Use of the Danube 199438 is directed ulti-mately at the sustainable development and environ-mental protection of the Danube River. This is statedto encompass sustainable and equitable water man-agement, conservation, improvement and rational useof surface water and groundwater. The wide-rangingnature of sustainable development and environmentalprotection defined in this way is complemented by therange of purposes to which the water resources maybe put. In this transboundary agreement, each con-tracting party is required to establish, on the basis ofa harmonized methodology, domestic water balances,as well as the general water balance of the DanubeRiver Basin. For this purpose, water balance is statedto mean this:

The relationship characterising the natural waterhousehold of an entire river basin as to itscomponents (precipitation, evaporation, surfaceand underground run-off). In addition a com-ponent of current man-made effects originatingfrom water use and influencing water quantity isincluded.

These detailed arrangements are implemented bythe institutional structures created by the Conventionincluding in particular the International Commissionfor Protection of the Danube River.

While the Convention includes wetlands withinits scope, the arrangements in place for the man-agement of the Lower Danube River impact directlyon wetlands. These take the form of a Declarationrather than an agreement: namely, the Declaration onthe Cooperation for the Creation of a Lower DanubeGreen Corridor 2000.39 The Declaration thus informshow states are expected to behave, rather than man-dates how they must behave. The Lower DanubeRiver and its floodplains comprise wetlands that form“a unique natural area, whose ecological, scenic andscientific significance is of international importance”.The Declaration further recognizes the importanceof a healthy floodplain and wetlands, not only forthe maintenance of water quality and environmentalhealth in the Danube River and Black Sea, but also asa basis for creating economic development and locallivelihoods.

There is little doubt that the ultimate objective ofthe Declaration of 2000 is the protection and restora-tion of the Danube floodplain and its wetlands. As theDeclaration states, there are 773 166 ha of existingprotected areas, with a further 160 662 ha of proposednew protected areas. In addition, there are 223 608 ha

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that have been proposed for restoration to the statusof natural floodplain. The Declaration includes theexpectation that the four states will take “concertedaction to create a Lower Danube Green Corridorthat will expand the cooperation, coordination andconsultation between the Republic of Bulgaria, theRepublic of Moldova, Romania and Ukraine aimingat Danube River floodplain and wetland protectionand restoration.” According to one group of commen-tators, these arrangements so far have been success-ful. Namely “by early 2008 the goal of one millionhectares of protected wetlands was achieved and morethan 50,000 hectares had been restored (roughly onequarter of the goal).40 While this is encouraging, itmay be worth considering how many more wetlandscould have been conserved if the contents of the non-legally binding Declaration had been incorporatedinto the stronger 1994 Convention on the Protectionof the Danube. Once again, issues of semantics, inter-pretation and operationalization all play a crucial rolein the reality of wetland protection.

This example of the Danube is an interestingone. In particular, it demonstrates that much can beachieved, even in a framework of expectations, ratherthan in one of legally binding obligations. It can beargued, however, that this approach is only likely tobe successful where local populations place a highvalue on the retention of wetlands and their ecosystemservices. It is interesting to note that there are manyinitiatives across the Danube Basin, where wetlands,meanders and other hydrological features are beingre-established as part of the arrangements requiredby the Water Framework Directive of the EuropeanUnion already discussed. It is also notable that theimplementation of the integrated water resource man-agement part of the EU Flood Directive has acknowl-edged the concept of “room for the river”, as part ofnational and international flood prevention strategies.Such a policy protects and even promotes wetlandsand floodplains, as an important part of “soft infras-tructure” which can provide absorption capacities inthe event of high river flows. This is a recurrent prob-lem in many large European rivers which have seenmany large flood events over the last ten years.

6 NATIONAL WETLANDS MANAGEMENT

In addition to the international arrangements relat-ing to wetlands conservation, national laws withineach state have a role to play. There are many simi-larities among different states in terms of how theirenvironmental laws have evolved, and what issues

are considered important. In this section, we con-sider national-level legislation having the potentialto impact on wetlands. These examples illustrate thecrucial role played by national legislation in realimplementation of wetland protection.

6.1 South Africa

The Constitution of South Africa states rather thanmerely implies an environmental right. Accordingto the Constitution, everyone has the right to anenvironment that is not harmful to their health orwell-being, and the right to have the environment pro-tected. It contemplates measures to prevent pollutionand ecological degradation, to promote conservation,and to secure ecologically sustainable developmentand use of natural resources, while promoting justi-fiable economic and social development. The attitudeof the courts in South Africa is clear:

Pure economic principles will no longer deter-mine, in an unbridled fashion, whether a devel-opment is acceptable. Development, which maybe regarded as economically and financiallysound, will, in future, be balanced by its envi-ronmental impact, taking coherent cognisanceof the principle of intergenerational equity andsustainable use of resources in order to arrive atan integrated management of the environment,sustainable development and socio-economicconcerns. By elevating the environment to a fun-damental justiciable human right, South Africahas irreversibly embarked on a road which willlead to the goal of attaining a protected envi-ronment by an integrated approach, which takesinto consideration, inter alia social-economicconcerns and principles.41

What has emerged in South Africa is a protectableenvironmental right in the context of the achievementof sustainable development. This is one of the rea-sons why the legal arrangements in South Africa areconsidered to be well advanced and why specific pro-tection of wetlands is given a place of importance innational environmental policy.

6.2 India

India similarly provides interesting insights into wayswetlands can be managed within a national legal sys-tem. As in South Africa, the apex of the national legalsystem is the Constitution, and a number of judicialdecisions on the environment have found inspiration

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in the Constitution. The Constitution of India enablesany person to go to the Supreme Court of India toseek a remedy for an infringement of the fundamen-tal rights set out in the Constitution. While there is noright as such in relation to the environment, one of thedirective principles of state policy requires the stateto endeavour to protect and improve the environmentand to safeguard the forests and wildlife of the coun-try. Consistently, there is a fundamental duty imposedupon every citizen to protect and improve the natu-ral environment including forests, lakes, rivers andwildlife. The Supreme Court of India has on a numberof occasions reacted positively to these arrangements.In a decision concerning sources of water and theneed for their conservation, the Supreme Court reliednot only upon the provisions of the Constitution, butalso upon the responsibility acknowledged by inter-national law to protect the environment and upon theprinciple of sustainable development recognized byinternational law. The Supreme Court acknowledged,in this case, “the need for environmental protectionand conservation of national resources” and con-cluded: “The environmental protection and conserva-tion of natural resources has been given a status of afundamental right and brought under Article 21 of theConstitution of India”.42

While the acknowledgement of such a fundamen-tal right is not unique to India, it is by no meanscommon practice. The acknowledgement of the exis-tence of this fundamental right by the Supreme Courtof India has influenced the way in which the judiciaryin India has responded to environmental issues.

A judicial decision in a case arising in WestBengal provides an interesting example of how acourt has approached wetland management in India.The Kolkata Wetlands provide livelihood support forthousands of families. Recognition of this economicvalue has contributed to decision-making processesabout how the land will be managed. Since 1992,the High Court of West Bengal has been invited ona number of occasions to protect the East KolkataWetlands—a large area lying east of the city ofCalcutta now called Kolkata. In one case,43 the Courtreviewed the extensive range of functions performedby these wetlands—for the benefit both of natureand of humans—before identifying the issue for thecourt. The Court noted that India was a party to theRamsar Convention and accordingly was “obliged topromote the conservation of wetlands habitat in herterritory”.44 As a result, the Court concluded that:

Wetland acts as a benefactor to the society andthere cannot be any manner of doubt in regardthereto and as such encroachment thereof wouldbe detrimental to the society which the LawCourts cannot permit. This benefit to societycannot be weighed on mathematical nicety . . .

and it cannot be measured.45

The resulting order of the Court was an injunctionrestraining any further reclamation of the wetlands.It is interesting to note that, in this case, the decidingfactor seemed to be based on the anthropocentric viewassociated with the economic benefits accruing fromthe wetlands. There is no doubt that anthropocen-tric perspectives often take precedence. However, thisexample illustrates how even this approach can havea positive impact on wetlands conservation.

6.3 China

Water resources in China are managed in accordancewith three separate laws: the law on water and soilconservation, the law on prevention and control ofwater pollution, and the water law.46 Each of thesethree laws, separately but together, moves in the direc-tion of sustainable development. Although much ofthe responsibility for achieving these objectives restswith a range of government agencies, a number ofduties are imposed upon units of production andindividuals in ways that are potentially enforceable—usually through administrative or criminal sanctions.

According to the water law, water resources inChina are owned by the state. Accordingly, the lawitself states:

This law is enacted for the purposes of rationallydeveloping, utilising, conserving and protect-ing water resources, preventing and controllingwater disasters, bringing about sustainable utili-sation of water resources and meeting the needof national economic and social development.

The focus of the law on prevention and control ofwater pollution, is pollution. This law is enacted forthe purposes of preventing and controlling water pol-lution, protecting and improving the environment,safeguarding human health, and ensuring the effectiveutilization of water resources.

In relation to Chinese wetlands, however, it isthe law on water and soil conservation that is per-haps the most relevant, by protecting water and soil

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resources and by controlling and preventing soil ero-sion. The juxtaposition of water and soil resourcesin this law is significant in the wetlands context, andthe relationship between water and soil conservationis important in the wider framework of sustainabledevelopment. In appropriate circumstances, a wetlandmay fall within the scope of this law, just as it may fallwithin the scope of the laws on prevention and controlof water pollution and water.

6.4 New Zealand

The complexity of wetlands management from thelegal perspective is well illustrated by a case fromNew Zealand.47 This demonstrates how wetlands canbe legally protected through “indirect legislation”.In 1985 the Court of Appeal of New Zealand wasfaced with a proposal to drain about 172 ha of theWhangamarino Swamp to enable the drained landto be used for grazing purposes. At that time, thearea of undeveloped wetlands within the swamp wasbetween 7000 and 7700 ha. The application was todam and divert a stream by stop banks and chan-nels under the Water and Soil Conservation Act 1967(New Zealand). The Court of Appeal was concernedwith the methodology of decision-making rather thanwith the merits of the decision.

The notion of water as a national asset playedan important part in the judgement, along with theimportance of conservation and wise use as essen-tial elements of the legislation. While farmers havethe ordinary rights of landowners to use their landin its natural state, the effect of the 1967 Act wasthat they have no right to divert the natural water thatis on the land. The Court of Appeal affirmed veryclearly that the legislation did not provide “for theperpetual preservation of wetlands or ecosystems”.However, “a real degree of protection” could“be granted to wetlands or ecosystems in decidingwater right applications”48 through the implementa-tion of the 1967 Act.

7 CONCLUSION

This paper has provided a global overview of theresponses of the international community and ofnation states to the challenges of wetlands manage-ment and how they may be protected and conservedwithin the law. The examples are far from exhaus-tive, and there are many jurisdictions across the worldwhere there are no appropriate rules in place relating

to wetlands. The examples presented here howeverdo provide a cross-section of perspectives on howdifferent approaches to wetlands protection can beput in place. They also demonstrate the complexi-ties of the issues in question, while at the same timehighlighting the need for sound science to supportmeaningful policy and legislation. This sound sciencemust include a whole host of science findings relat-ing to hydrology, vegetation ecology, aquatic biology,hydrogeology, economics and social and political sci-ence. It is unfortunate that even in many cases today,legal structures either totally ignore wetlands alto-gether, or fail to take account of important scientificunderstandings relating to them and their functioning.As acceptance grows of the importance of ecosystemsas an environmental management scale, there is aclear need for wetlands to be explicitly identified inany legislation relating to them.

The international and national legal arrange-ments for managing natural resources and theirenvironment (including wetlands) have increasinglymoved in the direction of their sustainable devel-opment. However, these arrangements are neitherconsistent nor coherent across the various natu-ral resources or across the several jurisdictions.Significantly, the move towards sustainable develop-ment has incorporated increasingly an ecosystemsapproach to the management of water resources inthe wider context of a river basin or watershed focus,but sometimes, somewhat unhelpfully, the instrumentrefers only to “surface water, groundwater, lakes” orother general references to water, without explicitlymentioning wetlands.

One of the features of these evolving arrange-ments is the importance of appropriate institutionalarrangements, including legal arrangements. There isa clear need for a greater harmonization of nationallegal arrangements in accordance with the emergingprinciples of international law, although this is nei-ther easy nor practical. The nature of internationallaw predicates that it is to a large extent based uponrecognized principles and strategies, together withsets of obligations cast in relatively general terms.These arrangements inform the normative structure ofnational legal arrangements, and it is the effectivenessof these legal arrangements at both national and locallevels that determines the adequacy of the system as awhole.

The power to influence what happens in wetlandsmay lie primarily with those who own and controlland where wetlands are found. In many parts of the

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world, large areas of wetland may fall under the con-trol of private land holders. As a result, there is a needfor legislation to control what can be done by theselandholders to ensure they recognize the importanceof wetlands as crucial functioning ecosystems. Fromthe examples provided here, we hope that the point ismade that the inclusion of wetlands explicitly withinall forms of water law is an essential step forward,if effective sustainable water management is to beachieved. It is only by such inclusion, and the enforce-ment of the relevant regulations, that society can besuccessful in protecting the existence of these cru-cially important wetland ecosystems, for the benefitof future generations.

Acknowledgements This work has been supportedby the School of Law, Queensland University ofTechnology and the School of Environmental Scienceand Management, Southern Cross University. Theviews expressed here do not represent those of anyoneother than the authors, but the text has been consid-erably improved thanks to the useful and perceptivecomments of the anonymous reviewers.

NOTES AND REFERENCES1 East Kolkata Wetlands (Conservation and

Management) Act 2006, s2(d) and (k).2 United States v Larkins (1987) 657 Federal

Supplement 76 at 80.3 National Wildlife Federation v Hanson (1985)

623 Federal Supplement 1539.4 For a detailed review of these legal arrangements see

Fisher, D.E., 2010. Managing wetlands sustainably asecosystems: the contribution of the law. Part I. Journalof Water Law, 21, 19–32, and Part II. Journal of WaterLaw, 21, 53–65

5 Only a few examples from the United States have beenincluded because many have been widely discussedelsewhere.

6 (1972) 11 International Legal Materials 1416.7 (1983) 22 International Legal Materials 455.8 (1992) 31 International Legal Materials 874.9 (1972) 11 International Legal Materials 963.

10 (1972) 11 International Legal Materials 963.11 Farrier, D. and Tucker, L., 2000. Wise use of wetlands

under the Ramsar Convention: a challenge for mean-ingful implementation of international law. Journal ofEnvironmental Law, 21, at 25.

12 Ibid at 24.13 Ibid at 30.14 (1992) 31 International Legal Materials 818.15 (1973) 12 International Legal Materials 1055.16 (1972) 11 International Legal Materials 1358.17 (1994) 33 International Legal Materials 1328.18 (1992) 31 International Legal Materials 1312.19 (1998) 36 International Legal Materials 700.

20 (1976) 1001 United Nations Treaty Series 3.21 See Koh, K.L., ed., 1996. Selected ASEAN Documents

on the Environment, National University of Singapore,Singapore) at 28 to 47.

22 Official Journal of the European Communities NumberL327 of 22.12.2000.

23 Official Journal of the European Communities NumberL103 of 25.04.1979.

24 Commission v Germany (1991) European CourtReports I – 883.

25 Commission v Spain (1993) European Court ReportsI – 4221.

26 R v Secretary of State, ex parte Royal Society for theProtection of Birds (1997) Queens Bench Reports 206.

27 Commission v France (1999) Common Market LawReports 723.

28 See United States Code 4402.29 (2001) International Legal Materials 321.30 See Note 19.31 See Erens, S., Verschuuren, J. and Bastmeijer, K.

2009. Adaptation to climate change to save biodi-versity: lessons learned from Africa and Europeanexperiences. In: B. Richardson, Y. Le Boutlillier,H. McLeod-Kilmurray and S. Wood, eds. Climate lawand developing countries: Legal and policy challengesfor the world economy Cheltenham: Edward ElgarPublishers, 221–224.

32 Ibid, at 222.33 (1988) International Legal Materials 1109. The agree-

ment is between Botswana, Mozambique, Tanzania,Zambia and Zimbabwe.

34 (1997) Treaties Concerning the Non-navigational Usesof International Watercourses Africa Rome: Food andAgriculture Organization of the United Nations, 142–145. The agreement is between Angola, Botswana andNamibia.

35 (1989)29 International Legal Materials 1303.36 17 International Legal Materials 1045. The parties are

Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru,Surinam and Venezuela.

37 (1995)34 International Legal Materials 864. The partiesare Cambodia, Laos, Thailand and Vietnam.

38 (1994)5 Yearbook of International Law, doc 5.39 http://www.internationalwaterlaw.org/documents/

regionaldocs/lower-danube-green-corridor.html Theparties are Bulgaria, Moldova, Romania and Ukraine.

40 See Erens, S. Verschuuren J. and Bastmeijer, K.“ Adaptation to climate change to save biodiversity:lessons learned from Africa and European experi-ences “ Richardson, B. Le Bouthillier, Y. McLeod-Kilmurray J. and Wood S. (eds) Climate Law andDeveloping Countries: Legal and Policy challenges forthe world economy, (2009, Edward Elgar Publishers,Cheltenham), at 220.

41 See Kotze, L. and Paterson, A., 2008. South Africa.In: L. Kotze and A. Paterson, eds. The role of the judi-ciary in environmental governance. London: KluwerLaw International, 574, 575.

42 Intellectual forums Tirupathi v State of AndhraPradesh (2006) 2 Supreme Court Journal 293, at322.

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43 People United for Better Living in Calcutta v State ofWest Bengal (1992) All India Reports 1993 Calcutta215.

44 Ibid, at para 20.45 Ibid, at para 40.46 See Law of the People’s Republic of China on

Water and Soil Conservation, the Law of the People’s

Republic of China on Prevention and Control of WaterPollution, and the Water Law of the People’s Republicof China, 2004. Beijing: Law Press China.

47 Auckland Acclimitisation Society v Commissioner ofCrown Lands (1985) 11 New Zealand Town PlanningAppeals 33.

48 Ibid, at 36.

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